Choctaw Nation's top prosecutor outlines McGirt process

Derrick James, McAlester News-Capital, Okla.
·5 min read

Apr. 10—Choctaw Nation's top prosecutor said she doesn't want dangerous people getting out solely on a McGirt claim.

Oklahoma's Court of Criminal Appeals announced April 1 a decision that applied the U.S. Supreme Court's decision in McGirt v. Oklahoma to Choctaw Nation. The decision means Oklahoma does not have criminal jurisdiction over Native Americans in what is defined by federal statute as "Indian country."

With more than 140 cases — including more than 30 felony cases involving Pittsburg County residents — filed in Choctaw Nation District Court in the first week since the decision, Choctaw Nation Tribal Prosecutor Kara Bacon said she is focused on cases involving people still in prison or posing a public threat.

"What our thought process behind taking those cases was to ensure that no one who's presently dangerous was going to get out solely on a McGirt claim," Bacon said. "I anticipate we are going to continue to get cases that others have identified that the U.S. attorneys may not file."

According to the 1885 Major Crimes Act, the federal government has criminal jurisdiction over Native Americans for crimes such as such as murder, manslaughter, sexual abuse, aggravated assault, and child sexual abuse, when committed by Native Americans in Indian country.

The federal General Crime Act gives the government criminal jurisdiction over non-Native Americans who commit most crimes against Native American victims. The federal government also shares jurisdiction with tribal courts to prosecute crimes against Native Americans committing crimes against non-Native Americans.

Federal law states individuals who are prosecuted and punished by a tribe cannot be tried by the federal government for the same offense.

Bacon said initial appearances for those charged by the tribe began this week.

"We started our first arraignment on McGirt cases this week," said Bacon. "It took a little bit of time because we're using teleconference with video."

The top tribal prosecutor said the use of remote conferencing will be vital due to the 11,000 square miles that make up the Choctaw Nation.

"I think that's going to be necessary, just due to our size and the number of counties we cover, to have that ability," said Bacon. "So we're lucky that we could do that."

Choctaw Nation Executive Director of Public Safety John Hobbs said the detention of a person awaiting trial through the tribe will be in the county where the offense occurred.

"We have jail agreements with all of our counties so that we can house them right there," said Hobbs. "We do that to try to keep them in their local area."

Hobbs said the tribe verified with agencies within the 10-and-a-half county area that they have the ability to use video conferencing and that been helping those agencies that don't have the ability.

"It literally takes just an iPad," Hobbs said. "I believe the only one not doing virtual right now is Bryan County; it's a conflict with times. Luckily it's right here so we don't have far to transport."

According to Bacon, for a person with Native American status to be charged in Choctaw Nation District Court, the probable cause affidavit must contain certain things for it to be valid in tribal court.

"We need information in the affidavit that lets us know that the person that the officer is dealing with, the defendant, is an Indian," said Bacon. "And that the officers themselves are cross-commissioned with the Choctaw Nation."

Bacon said once a person is taken into custody, an initial appearance will be held within 48 hours and a Choctaw Nation District Judge will set bail. If a defendant can't afford an attorney, then an attorney from the Office of the Choctaw Nation of Oklahoma Public Defender will be assigned to the defendant's case.

"For misdemeanors, we have a disposition hearing thereafter and for felonies, we have a preliminary hearing conference and then later a preliminary hearing," Bacon said. "So it moves along the same lines as the state."

One major difference is the size of a trial jury. Bacon said the Choctaw Nation trial jury seats six instead of 12.

Tribal codes states a jury trial will seat six jurors with one alternate selected to also serve.

Choctaw Nation's Finance, Membership and/or IT Departments developed a list of all tribal members older than 18 with a vehicle registered in Oklahoma for the purpose of obtaining a Choctaw Nation license plate during the preceding year.

Jury members are selected from that list.

Tribal codes state non-tribal members 18 and older who have resided within Choctaw Nation's 10-and-a-half county area for more than 30 days "who are of sound mind and discretion and of good moral character are competent to act as jurors, except as herein provided, whether or not said person is a member of the Choctaw Nation of Oklahoma."

President Barack Obama in 2010 signed the federal Tribal Law and Order Act that limits the tribe to sentencing defendants to three years — with a maximum of nine years for "stacked" charges.

"The important thing to recognize that prior to the Tribal Law and Order Act, tribes have never been limited to what they can charge — they've been limited in their sentencing power," Bacon said. "So prior to 2010, tribes, all tribes, were limited or were capped at one year imprisonment on felonies or misdemeanors."

The Violence Against Women Act gives the tribe special jurisdiction over non-Native Americans who commit domestic violence against Native Americans.

"That is the only time we're able to prosecute non-natives as if they have some nexus to the tribe via their relationship with the tribal members," Bacon said.

Judgement and sentences under the Violence Against Women Act are also bound by the Tribal Law and Order Act.

Bacon said her office will continue to review cases as they are identified or presented to her office in order to keep the public safe.

"I do think it is our job and our duty as prosecutors — regardless of who we work for, we still live in the state of Oklahoma — to ensure that we are helping protect the other citizens of Oklahoma," Bacon said.

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