Because of the controversial McGirt decision, Native American victims of crimes may be victimized twice due to the consequences of a drastic change in the state’s legal structure.

Tulsa County District Attorney Steve Kunzweiler, Gov. Kevin Stitt, Tulsa County Sheriff Vic Regalado and several county district attorneys addressed the problem in the Governor’s community forum on July 13.

“The whole point was to provide some guidance to the victims of crime, whether they are Native American or not,” Kunzweiler said in an interview on Tulsa Beacon Weekend on KCFO AM970 radio. “Native Americans are the most adversely impacted as victims by the McGirt decision. I don’t think a lot of them realize that.

“Their tribes are divested of jurisdiction over any crime in which one of their members is a victim and the suspect is not an Indian.”

An example would be if a non-Indian was breaking into a car owned by a Native American. The police would ask the car owner if he were a member of a tribe and he says yes.

“If they caught the suspect red-handed breaking into his car, the tribe has no jurisdiction over that case because it doesn’t involve a Native American suspect,” Kunzweiler said. “So that case has to be sent to the federal government for review and I know right now they are accepting those cases but I don’t think they are reviewing them and I am very confident they are not filing them.

“So what happens if you need restitution? Or what happens if this person is a serial offender who is planning on breaking into multiple cars? You will have to hope that they break into a car of someone who is not a Native American. At least then I can get involved and shut down that operation.”

In the McGirt case, the United States Supreme Court ruled by a 5-4 split decision that the Indian reservations for Creek Nation had not been disestablished by Congress which meant that the state does not have jurisdiction over certain cases.

“It essentially says that since 1907, we’ve been doing it wrong.” Kunzweiler said.

Anytime a case comes into the Tulsa DA’s office, if the suspect is Native American or the victim is Native American or both of them are Native American, every state office has no jurisdiction to handle that case. The only jurisdictions with involvement are the tribal courts and the U.S. Government.

Kunzweiler’s office usually handles between 6,000-8,000 felony cases, 6,000-8,000 misdemeanors and 15,000 traffic cases on average each year. Kunzweiler is guessing that his case load in a non-pandemic year would drop approximately 10% due to the shifting of the jurisdiction.

“As long as law enforcement is doing their job out in the field, they are now having to ask a race-based question – something that they have never done in the past here in Oklahoma – they have to be able to screen out or determine if you are Native American or not,” Kunzweiler said. “Because if the person is native American, then that case is going to have to go to tribal court or federal court.”

In Tulsa County, 10-15% of the population is Native American. There is a higher concentration east of Tulsa.

Kunzweiler called the increase of the number of cases for tribal courts and federal courts “meteoric.”

“The Federal prosecutor’s office in the Northern District – which covers 17 counties – over the record of the past 20 years, they say they had only prosecuted three murder cases,” Kunzweiler said. “I may have upwards of 70 murder investigations per year that my office has to process.

“They have done anywhere from 250 to 300 felony cases every year. Their caseload is expanding exponentially. Whether they are filing those cases is a whole new thing but they have indicated they are at the 900-1,000 level in the past year. So that’s a four- or five-fold increase on their workload but I will still be doing a greater volume of work that they will be doing even though they have inherited a lot more work.”

Kunzweiler said his hope is that if a police officer on the street is convinced a crime has been committed, that the case will advance either in the county system, the tribal courts or the federal courts.

His biggest concern is the challenging of previous convictions on the basis of the McGirt ruling.

Tribal courts receive oversight from the federal government and that includes some funding. But for a long time, the tribes have not been responsible for penal institutions. They have a court system but it’s not as large as the state court system.

“Operating a court system is extremely expensive,” Kunzweiler said. “Operating a criminal justice system is extremely expensive. Operating alternative courts is extremely expensive.”

The tribes have been negotiating with various county jails for space for prisoners, at least to hold prisoners pending their trials. But when criminals are convicted, it is unclear where the tribes can send them to be incarcerated.

“That is yet to be resolved,” Kunzweiler said.

Ninety-five percent of crimes prosecuted in tribal courts have a maximum penalty of one year in jail. There are exceptions that could be up to three years.

“The maximum punishment for a murder would be three years,” Kunzweiler said.

That resulted in the federal government taking on the major cases of crimes (murders, rapes, robberies, etc.).

“This is really about victims,” Kunzweiler said. “They need their justice. They need to know what is going on in their case. They need to be guided through the process and they are not getting very many answers. Those questions now come to me and I am out of the game.”