Monday, July 13, 2020
From Slate, via the NACDL News of Interest page:
Before McGirt, Oklahoma tried the overwhelming majority of criminal cases involving Native American defendants before Oklahoma judges and Oklahoma juries. The only exercise of tribal criminal jurisdiction Oklahoma seemed comfortable with was a small piece of the pie: Tribes could arrest tribal citizens on the few parcels of land that unquestionably remained under federal/tribal ownership and control. Under this scenario, tribes policed Native Americans on Native-owned land, but not inside Native “territory.”
After McGirt, most felony cases with Native American defendants will be prosecuted by either the U.S. attorney or the tribal prosecutor, or both. Tribal courts will retain exclusive jurisdiction over lower level crimes. This means tribal judges and juries, as prescribed by tribal law, will be the ones to decide what happens to their citizens.
Criminal prosecutions will not cease. Criminal defendants will not walk free. Future perpetrators will not escape accountability. If anything, concerns of overpolicing Indigenous people outweigh any concerns of lawlessness. There are no jurisdictional gaps.