When it came time to address the issue of tribal reservations in Oklahoma before the Supreme Court, the State of Oklahoma presented a number of objections, in both the Murphy and then the McGirt oral argument. A critical and underlying argument that prosecutors pushed in the courtroom and in the media was this: even if the Supreme Court recognized that reservations had not been disestablished within Oklahoma, the practicalities of parsing through jurisdiction would be too difficult. In the mind of those arguing on behalf of the state, the idea of allowing tribes to have a say in what justice looked like for their citizens on their land was impossible. The state argued the volume of cases would be too high. Given that in the last several decades the state of Oklahoma has rapidly grown not only our overall rate of incarceration, but the total number of Indigenous people incarcerated, up 46% between 2008 and 2015.
Ultimately, the Court recognized what had been true all along: the Muscogee Reservation was never disestablished, and the state of Oklahoma had wrongfully claimed criminal legal jurisdiction over Indigenous citizens for more than a century. Disentangling that power and restoring tribal authority, in which tribes are engaging cooperatively, is a process that will take more than a few months, or even a year to work out. Systems change is not swift, even when the cause is urgent. Justice has not gone undone, rather, injustices of wrongful jurisdiction are just beginning to be addressed. However, if that’s the case, why is the public narrative so far from that reality? Why are we seeing tribal leadership and tribal citizens pushed out of conversations about implications of the ruling? Why does the impact of this critical decision still center white fragility rather than Indigenous justice? For Oklahoma prosecutors, such as the six district attorneys, who are in positions theoretically elected every four years, if they have an opponent, the first assistant, and prosecutors from the Attorney General’s office taking to the stage for a media opportunity in Tulsa tonight, is business as usual.
The criminal legal system in Oklahoma relies on a power imbalance, in which prosecutors have more resources, more access, more credibility, and ensure that folks accused feel such urgency to move on from the limbo of pre-trial detention, that they’re willing to plea. Oklahoma prosecutors, like many of their counterparts throughout the criminal legal system around the country, rely on bullying folks who they see as their opposition. This is as true in the courtroom as it is when their state agency and private lobbying organization are up at the Capitol, and it’s as true tonight as they take their media offensive against Oklahoma tribes and tribal citizens to the main stage.
In courtrooms and county jails across Oklahoma, prosecutors are flexing their power for plea deals, keeping their offices from doing the heavy lifting of allowing anyone their day in court. So what’s the end game when a decision like McGirt has already come down? It seems in part to be tied to an effort to get tribal governments to sign away rights of their citizens within a criminal legal context in order to protect an offensive on other sovereign rights with regard to civil law.
But we’re also moving into an election year. In 2022, all 27 elected Oklahoma prosecutors could be on the ballot. Some have never faced a general election, some got their seat by virtue of gubernatorial appointment to fill a vacancy, and some have never faced an opponent at all. But in 2022, prosecutors seem to be counting on tying themselves to a popular gubernatorial administration and doubling down on anti-Indigenous rhetoric in hopes of strong-arming their way through an election without having to do the work.
When the McGirt ruling came down, we noted that sovereign nations did not need a court to recognize their legitimacy, but that it is always progress when courts acknowledge the long history of wrongs perpetrated against tribal nations. A year later, with many additional tribes with reservations within Oklahoma having already joined the Muscogee Nation in having their reservation status recognized, and many more with cases in the queue, the highest court in all of the land may have acknowledged those wrongs, but those with the most power in the criminal legal system in Oklahoma have still actively refused to.
Exercising power through law enforcement, the courts, and the media targeting Indigenous people has been the status quo since colonizers first trespassed on Indigenous land in modern-day Oklahoma. Colonization is an active pursuit. Oklahoma prosecutors have continued to model that in the year since McGirt. As we watch Oklahoma prosecutors take the stage tonight, and likely again in the weeks and months ahead, we must remember Oklahomans have the ability to challenge that power.
A year ago, the Supreme Court declared that the difficulties of changing the status quo was not a good enough reason to allow Oklahoma to wrongfully claim jurisdiction and subject Indigenous people on reservation land to a cruel, racist criminal legal system. In the majority opinion for McGirt, Trump appointee Justice Neil Gorsuch wrote, “The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so.” The same must be true for those charged with enacting justice.
Oklahoma prosecutors have promised to uphold public safety, while pushing Oklahomans into one of the world’s worst mass incarceration crises. That’s who takes the stage tonight. And now the power lies with us, to determine if we allow that to continue to be the order of the day, or if we demand promises made be promises kept. We too have the power to reject that thinking. At public forums, in courts of law, in the legislature, and at the ballot box. How will we use it?
