From left, Tulsa County District Attorney Steve Kunzweiler, U.S. Attorney Trent Shores, Muscogee (Creek) Nation Assistant Attorney General Kyle Haskins and Deputy Chief Eric Dalgleish of the Tulsa Police Department take part in a media roundtable on the Creek Reservation in Tulsa, Oklahoma, on August 11, 2020. Photo: U.S. Attorney Trent Shores

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'Shame on you': Authorities warn criminals not to make false claims about Indian status

Wednesday, August 12, 2020

By Acee Agoyo

Lying about your tribal identity could land you in trouble on the Muscogee (Creek) Nation, whose reservation boundaries were reaffirmed last month in a historic U.S. Supreme Court decision.

With the state of Oklahoma finally barred from exercising "unlawful" jurisdiction on the reservation, tribal and federal authorities are stepping in. They are prosecuting criminal cases, not just of Creek citizens, but those involving citizens of other Indian nations.

That's where tribal status comes in. A perpetrator who is a citizen of any federally recognized tribe cannot be prosecuted by local, county or state authorities within reservation boundaries, as confirmed by the ruling in McGirt v. Oklahoma. Similarly, certain crimes affecting Indian victims do not fall under state control.

"The state of Oklahoma lost the ability to prosecute cases that occur on the Muscogee (Creek) Nation Indian reservation that involve an Indian defendant or an Indian victim," U.S. Attorney Trent Shores of the Northern District of Oklahoma said on Tuesday. "That's it."

Today, public safety officials from Tulsa County, the City of Tulsa, the Muscogee (Creek) Nation, and the United States gathered together to discuss the impact of #McGirt on public safety in eastern Oklahoma. Bottom line, our jurisdiction changed but our partnerships have not. pic.twitter.com/jDpT0ivvUi
— US Attorney Shores (@USAttyShores) August 11, 2020

But enterprising offenders have already attempted to assert a tribal identity in the weeks since McGirt was issued on July 9. Shores said people who have been stopped by local law enforcement are claiming to be Indian, hoping they will be let go because of the jurisdictional realities in eastern Oklahoma.

"Our officers are hearing a lot: 'I'm Indian,'" Shores said at at a media roundtable. "Because people think it's a 'get out of jail free' card."

In one instance, Shores said a woman stopped for a potential traffic offense on the Musocgee (Creek) Nation told an officer that she was a citizen of another Oklahoma tribe. Her claim turned out to be wrong -- she lacked any proof of Indian status. And she still had to spend a night in a local jail as authorities determined where she might be prosecuted.

"She wasn't telling the truth," said Shores, a citizen of the Choctaw Nation who chairs the Native American Issues Subcommittee at the Department of Justice, advising U.S. Attorney William P. Barr on Indian Country public safety matters.

"She was not, in fact, a Native American citizen," said Shores, who was nominated to his post by President Donald Trump.

StrongHearts Native Helpline recognizes the importance of the #McGirt decision for victims and survivors of violence. Tribal nations are one step closer to holding all perpetrators accountable on tribal lands. @strongheartsdv #dv #HonorTheTreaties https://t.co/gjzKJw6ujf
— indianz.com (@indianz) August 12, 2020

A local prosecutor who has heard from officers about the phenomenon offered harsh words for anyone who lies about their tribal status. Tulsa County District Attorney Steve Kunzweiler said he will consider charging people for not telling the truth.

"Shame on you," Kunzweiler said at the roundtable. "Shame on you for somehow trying to pretend to be somebody that you're not."

"At the end of the day, what you're doing is your only affecting your credibility," he continued. "If you're going to try to tell a law enforcement officer, to try and get out of trouble, that you're a member of a federally recognized tribe, and you're not entitled to that membership, you just lied to a law enforcement officer."

"You are obstructing that officer in his or her performance of their duties and that's going to be an additional crime you may have to face consequences for," Kunzweiler said.

For anyone wishing to ensure their tribal status is taken into account, Shores recommended they carry a tribal identification card or a Certificate of Degree of Indian Blood (CDIB). But even without such documentation, federal prosecutors still have to ensure a defendant is actually Indian in order to proceed with a case in U.S. court.

"We're going to evaluate each case on a case-by-case basis," Shores said of the possibility of considering an obstruction of justice charge for those who lie to law enforcement.

"It goes to somebody's credibility," he acknowledged. He added: "We're going to focus on what the more serious charge there is."

Native Americans account for 9.4 percent of Oklahoma's population, according to the U.S. Census Bureau. Not all are considered Indian for purposes of federal criminal law but McGirt has already shown how many were unlawfully prosecuted by the state on the Muscogee (Creek) Nation, which encompasses about 3 million acres.

Just last week, Shores said a federal grand jury returned nearly 50 indictments for crimes in Indian Country.

"That's a record for the Northern District of Oklahoma and a number of those cases are cases that, but for the McGirt decision, would have been in District Attorney Kunzweiler's office," Shores said.

Chief David Hill: Mvskoke Reservation Protection Commission #OneMvskoke #StandWithMvskoke

Similarly, Shores said a state court judge in Tulsa, the second-largest city in Oklahoma, last week dismissed 47 cases for lack of jurisdiction. He expects that number to nearly double before the end of the month.

"We'’re watching that really closely," Shores said of the court docket in Tulsa, which falls within the Creek Reservation.

The Tribal Court Clearinghouse at the Tribal Law and Policy Institute offers a "General Guide to Criminal Jurisdiction in Indian Country" to understand where cases will be prosecuted. Generally, crimes involving an Indian perpetrator and/or an Indian victim, fall under federal as well as tribal authority.

The Major Crimes Act of 1885 was the first incursion of federal criminal jurisdiction on tribal lands. Congress enacted the law following a Supreme Court decision that barred the U.S. from prosecuting a murder in Indian Country.

A non-Indian perpetrator whose victim is Indian is also subject to federal authority. However, tribes cannot exercise criminal jurisdiction over non-Indians, except under the limited situations outlined in the Violence Against Women Act of 2013, as a result of the Supreme Court decision in Oliphant v. Suquamish Indian Tribe.

The historic Democratic presidential ticket of Joe Biden and running mate Kamala Harris are vowing to ensure tribes can hold non-Indians accountable for additional crimes. Federal data shows the majority of perpetrators are non-Indians.

The 2013 version of VAWA, which recognizes the inherent sovereignty of tribes, was signed into law when Biden was serving a vice president to Barack Obama. Biden was the original author of the first version of the law, back in 1994.