Since the U.S. Supreme Court’s landmark decision in early July holding that the Muscogee (Creek) Nation’s reservation was never disestablished, many American Indians arrested in Tulsa have found themselves in a sort of legal limbo, often being held without bond in jail for days or weeks before ever seeing a judge or provided access to an attorney.
While non-Indians who have been arrested on relatively low-level crimes usually receive a bond hearing within 24 hours, American Indians arrested on similar complaints could find themselves waiting days or even weeks while federal, state and tribal authorities decide who, if anyone, will pursue charges against them.
Tulsa resident and enrolled Choctaw Nation citizen Avery Brune, 19, was arrested by the Tulsa Police Department on Aug. 8 on a complaint of domestic assault. He spent the next 13 days in the Tulsa County jail held without bond and without seeing a judge until he was taken by tribal officers to Okmulgee for a hearing. There, he was released on a $5,000 bond, according to jail records and Brune’s mother Chandra Green.
“My son was lost in a crack somewhere,” Green said.
Green said she called the jail, the U.S. Attorney’s office in Tulsa, the Choctaw Nation, the Oklahoma Attorney General’s office and the Creek Nation, but no one seemed to know anything about his case.
When she reached the Creek Nation Attorney General’s Office, she was told “It’s not our job to let them stay in limbo this long. We’ve just been drowning since this new ruling,” Green said.
And her son wasn’t alone. Several other American Indian prisoners arrested since the July 9 U.S. Supreme Court decision also faced long stints in the jail with no bond, without seeing a judge and, unlike Avery, without access to an attorney, she said.
Green was able to hire Tulsa attorney Jeff Krigel to represent her son, though her son told her other American Indians in the jail who did not have the funds to hire an attorney had no legal counsel, since they had not been brought into the tribal court system yet to qualify for a tribal public defender.
“They’ve been sitting in there not being told anything either,” Green said. “I feel like they should have prepared for this better. They (prosecutors and law enforcement) should have known this was going to happen.”
Corbin Brewster, chief public defender for Tulsa County, said the Tulsa County Public Defender’s office cannot represent those in the jail facing tribal or federal holds, though there are federal and tribal public defender’s offices. However, he too has seen numerous instances where those facing tribal charges have been held without seeing a judge for weeks.
“Many of them have been arrested three weeks or a month ago,” Brewster said. “For these people, they’ve truly slipped through the cracks.”
Jail records show numerous American Indian prisoners being held for the Creek Nation have waited days and sometimes weeks before being picked up and taken to Okmulgee, where the Creek Nation capitol is located.
While those facing more serious charges in federal court can only be held for 72 hours before appearing before a federal magistrate, no such time limit exists for those being held for tribal court.
Creek Nation Attorney General Roger Wiley and Creek Nation Assistant Attorney General Kyle Haskins did not return numerous phone messages left by The Frontier. Creek Nation Lighthorse officials did not return a phone message left by The Frontier on Thursday morning.
The McGirt decision
The U.S. Supreme Court issued its decision in the McGirt case — in which an American Indian had been convicted in Oklahoma state court of committing sex crimes against a minor — on June 9, holding that Congress never disestablished the Muscogee (Creek) Nation reservation prior to statehood.
That reservation covers all or parts of Tulsa, Rogers, Mayes, Wagoner, Creek, Okmulgee, Muskogee, McIntosh, Okfuskee and Hughes counties. The finding that the reservation was never disestablished, among other things, means that crimes believed to be committed by American Indians would fall under the jurisdiction of tribal or the federal court system, rather that state or municipal authorities.
For the most part, if a crime committed by an American Indian within the boundaries of the reservation falls under the federal Major Crimes Act, then the case is likely to go to federal court, while tribal court would handle lower-level offenses.
Shortly after the decision, law enforcement agencies cross-deputized with the Creek Nation, and federal, state and tribal prosecutors began coordinating their response, and looking for ways to transfer existing cases over to federal or tribal court.
However, Brewster said one of the issues that hasn’t had the same amount of attention is the long delay in getting people from the Tulsa County jail to tribal court.
“They fixed all that up so they can make arrests, but the fix on the fundamental due process on what happens to someone, how do they meet their charges and confront their cases, that wasn’t fixed,” Brewster said. “So you have presently a real problem where people are slipping through the cracks and being held for a long period of time without process.”
One American Indian man on the jail roster had spent two weeks in jail on a public intoxication complaint with no hearing and no bond.
“It seems extraordinary, because normally, if it’s a municipal arrest or state arrest on public intox, you’re most likely out within 28 or 48 hours,” Brewster said. “Two weeks would be a really long time on public intox.”
Tulsa County Sheriff Vic Regalado said he too has seen American Indian prisoners in the jail wait for long periods before being picked up by Creek Nation Lighthorse and taken to Okmulgee for a bond hearing.
“We really don’t have authority on the state’s side to provide a bond for that release,” Regalado said. “We’ve already seen it, and fortunately our people are keeping an eye on these things, they get lost in the influx — Muscogee can’t come pick them up or they don’t have the room, then they get lost in the shuffle.”
Sometimes, Regalado said, there may be confusion between whether a person will be charged in the federal system or the tribal system. Green said her son’s case was similar — he was initially held at the jail on an FBI hold before it was switched to tribal.
“What happens to those inmates?” Regalado said. “Now, we’re potentially looking if we’re not careful, of holding someone in limbo in the jail longer than they should have been because we’re trying to figure out whose jurisdiction it is. If it’s Lighthorsemen, are you going to come get them and come get them in a timely manner?”
Though the prisoner may fall under tribal jurisdiction, the jail is still responsible for their care and well-being until they are picked up, Regalado said, and the jail, which signed a contract to hold the tribal prisoners shortly after the McGirt decision was issued, has recently implemented a policy requiring the tribe to send an order of detainer or an order of release on prisoners.
“It’s not our issue, because it’s a sovereign nation, but at the same time we have an obligation to go ‘OK, come on. Come pick this individual up,” Reglado said. “It’s no fault of anybody, because this was the decision that was thrust upon us by the SCOTUS.”
The McGirt decision, Regalado said, “changed the world of criminal justice in Tulsa, Oklahoma,” and there have been numerous issues and questions arise since then. For instance, the FBI does not have a contract with the Tulsa County Sheriff’s Office to hold prisoners at the jail, meaning the jail is holding them for free, Regalado said. In addition, protective order enforcement is questionable if the person violating the order is an American Indian, since federal and tribal laws do not cover those orders, he said.
“From a domestic violence standpoint, what does that fall under? Because violation of a protective order — that’s a state-issued order, which has no jurisdiction for Native American or Muscogee Creek Nation and there is no VPO for federal guidelines and enforcement,” Regalado said. “Essentially, until we receive legal guidance, VPOs are kind of in the air in regard to if they’re enforceable. Which is a big deal, considering domestic violence is probably here in the Tulsa area the number one cause of murder.”
The lack of prosecutors, judges and courtrooms in the federal and tribal system, compared to the state system, is also an issue, he said.
“Neither the federal government, that being the FBI or U.S. Attorney office, or Muscogee (Creek) Nation is capable of handling the cases coming through,” Regalado said. “That’s just a given. I think they will both agree to that. Because of that influx, I think what you’ll see and what we have seen, is charges being dropped.”
On Aug. 11, Tulsa County District Attorney Steve Kunzweiler, U.S. Attorney for the Northern District of Oklahoma Trent Shores, Assistant Creek Nation Attorney General Haskins and representatives from the Tulsa Police Department held a public roundtable discussion about how they planned to handle the law enforcement issues raised by the McGirt decision.
During that event, Shores said volunteer prosecutors and judges would help ease the influx of cases coming into the federal system (more recently, Shores announced federal funds to help pay for domestic violence cases and prosecutions), though the court shut down earlier this year because of COVID-19 would likely add to the backlog.
As of Aug. 11, Shores said his office had been referred 113 cases, kept 60 of those cases and referred the rest to the Creek Nation.
Haskins said at the time the tribe has only three district court-level judges who can hear cases, which would come from all 10 counties covered by the tribe’s reservation, and 11 attorneys, some of whom have only handled civil litigation.
“Everything is going to be fine. We just need some time to get our feet underneath us,” Haskins said at the event.
Meanwhile, for American Indians who were charged with crimes before or just after the McGirt decision by the state, Tulsa County’s court system has been holding bi-weekly “McGirt dockets,” which allows a judge to review the case to see if it qualifies for dismissal. If dismissed, it would be up to the U.S. Attorney’s Office or Creek Nation Attorney General’s Office to refile the case in their respective courts, said Randall Young, assistant district attorney for Tulsa County.
“The partnership between this office and our sister sovereigns with the federal and tribal government has been exemplary,” Young said. “It has been a collaborative effort. It’s actually quite inspiring to see everyone working together to make sure people get to the right jurisdiction.”
In its first week, the McGirt docket saw 47 cases dismissed. During the second McGirt docket, held last week, more than 80 cases ranging from child sexual abuse to burglary were dismissed for lack of jurisdiction.
Brewster said by assigning the cases to the bi-weekly McGirt docket, it has delayed cases that obviously need to be dismissed because a lack of jurisdiction, giving the federal government and tribe time to file their own cases.
“They’re knowingly delaying the state case without jurisdiction,” Brewster said. “We’ve been trying to accelerate those dispositions because I think there’s no reason for someone to be held on a state bond if everyone agrees there’s no jurisdiction.”
Young said, with time, the process will get smoother.
“The relationships we are developing and the processes we are developing will almost certainly get more strongly with time,” Young said.
On his end, Regalado said he is hoping to get a video conferencing system set up with the tribal courts to help streamline the process for new American Indian detainees, though, he said, there may also be other issues that come up and make things more difficult.
“Every time we think we’ve got a grasp on this, something new comes out of left field,” Regalado said. “The frustration is on all sides, the federal, state and tribal level.
“As with anything new, until you figure it out and have some repetition, there’s going to be some oversight issues,” he said. “And we’ve seen it. It’s certainly not intentional, but this is something pretty big that has pretty much turned the criminal justice system upside down.”
Green, Brune’s mother, said she believes it was the tribal tags on her son’s car that caused officers to designate him as an American Indian when he was arrested. The situation has caused her to rethink broadcasting her own tribal affiliation.
“We’ve never been embarrassed to be Native American ever,” Green, a Choctaw, said. “We’ve always been very proud of our heritage, but my mom and I are now talking about taking the tags off our cars and not telling anyone we’re native American because of this.”