What will become of American Indian inmates in Oklahoma jails?

(PONTOTOC COUNTY, Okla.) Opening the cell doors and letting the inmates free is an idea Pontotoc County Sheriff John Christian thought he would never have to consider. “And we’re talking about anywhere from murder all away across the board down to some simple misdemeanors but over half my population in jail could walk out April Fool’s Day,” Christian said. In a landmark decision last summer, the US Supreme Court ruled 5-4 that the State of Oklahoma has no legal jurisdiction over crimes involving American Indians committed on tribal lands, because their reservations had never been disestablished by Congress. 27 Oklahoma counties are either entirely or partially “Indian Country”. Crimes involving American Indians on those tribal lands will now have to be prosecuted by federal or tribal authorities. The Oklahoma Court of Criminal Appeals backed up the Supreme Court’s decision on March 11 when it reversed the judgement and sentence on the case of Bosse v. State, and said their mandate is stayed for 20 days from the delivery and filing of their decision. Most of Pontotoc County is Chickasaw Nation land. The rest is Choctaw Nation. Christian told us, as a result of the rulings, when a call comes in, they ask if the crime involves a member of a federally recognized tribe. If the answer is yes, they refer them to Chickasaw Lighthorse police. “That’s difficult,” Christian said. “I feel like I was elected by the majority of people in Pontotoc County, that’s Indian and non-Indian. And so therefore I feel like I represent both. This ruling has made a determination that no, I don’t represent both. I only represent part of those, the non-Indian.” And cases they’ve worked hard to investigate are now in limbo. Take the case of Tanner Washington, for example. He was arrested in December 2019, accused of murdering his teenage girlfriend, Faith Lindsey. She went missing that October. Her body was never found. The pressure is on for Oklahoma’s district attorneys to get the cases turned over to federal authorities, the only ones with legal jurisdiction over major crimes like murder on tribal land. Washington is not a member of a tribe, but Lindsey, the victim, was. So, he is one of an estimated 70 inmates at the Pontotoc County Justice Center Christian said he will be forced to let go on March 31 if federal or tribal authorities don’t come pick them up. District Attorney Paul Smith is over Hughes, Pontotoc and Seminole Counties. He said he doesn’t interpret the 20-day stay in the Bosse ruling to apply to all cases involving American Indians. “It doesn’t matter if there’s a 20-day mandate in the Bosse case,” Smith said. “It has no effect on the innerworkings of any of those cases. But each case, say that’s in the Pontotoc County jail now, each inmate, each of those cases has their own innerworkings. In other words, there may not be an order to release them. Because they either haven’t been properly presented in district court in terms of a motion to dismiss or they’re pending a decision on that or those decisions that have been made are on appeal.” He said while their caseload hasn’t increased, the work involved certainly has. “Yeah, it’s a huge undertaking and a huge burden,” Smith said. “We’re not accustomed to doing the kind of appeals that we’re doing. The number of appeals that we’re having to do.” “We’ve seen the handwriting on the wall. We’ve worked with our other law enforcement, those in particular, the federal government, the US Attorney’s Office. Met with the FBI and US attorneys numerous, numerous, numerous times.” We’re told Washington’s case is in process. Kalup Born was arrested and charged with arson, robbery, kidnapping, and murder in 2017. His case was dismissed after citing lack of jurisdiction following McGirt. The district attorney’s office lost their chance at an appeal after filing the request one day too late. But ultimately, given that Born is a member of a federally recognized tribe and the nature of his crimes, it’s another case only the federal government can prosecute. Born is still locked up for murdering a fellow inmate in January. After the Bosse ruling, Acting United States Attorney Christopher J. Wilson issued a statement saying his office planned to build on the framework they set in place following the McGirt ruling. “This framework includes creating Indian Country prosecution teams, securing attorneys and support staff from other U.S. Attorney’s offices to serve terms in the Eastern District, as well as establishing case intake and referral procedures in cooperation with the Federal Bureau of Investigation,” Wilson said. “The expansion of federal criminal jurisdiction resulting from the Hogner & Bosse rulings will no doubt dramatically increase our caseload, but I am confident the men and women of the U.S. Attorney’s Office for the Eastern District will rise to the challenge.” VNN reached out to Wilson for a follow up to see how it’s going, but did not hear back by the time this story was published. For American Indians found guilty of murder by Oklahoma judges, the five-year federal statute of limitations could mean the time they’ve served is all they’re going to serve. “The concept of all the people walking out of the jails and prisons?” Smith said. “Yes. That is a real likely possibility. Unless we get some relief.” Convicted prisoners who have been locked up that long are already being released, like Russell Neasbitt. His 18-year sentence for Shooting with Intent to Kill was commuted and he walked free last week. Smith said a group flew to Washington, D.C. to get Congress to take some kind of action in February of 2020, but they never did and he doesn’t expect them to. Following the McGirt and Bosse rulings, Oklahoma Attorney General Mike Hunter also called on Congress to pass legislation allowing the state to partner with the Cherokee and Chickasaw Nations on criminal jurisdiction, as required by federal law. We spoke with Alex Gerszewski, Oklahoma Attorney General’s spokesperson on Thursday. He provided us the following statement: “We can confirm that we are in the process of developing next steps in our legal strategy with regard to recent court decisions in order to ensure that Oklahomans, both Native Americans and non-Native Americans, are safe in their person and property and will make a further statement by the deadline Wednesday." “I have been told that my district court judge put those people in jail and he’s the only one that can release them,” Christian said. “Well, my argument is I have a higher court saying they will be released in 20 days if they’re not picked up by somebody. Who do I listen to? So, I’m hoping to get direction before that date comes but I feel like on April Fool’s Day I will be releasing a lot of people out of my jail. I don’t want to. I don’t have a choice.” We reached out to the Chickasaw Nation for insight on the impacts the recent rulings are having on their justice system and will share that information when it becomes available.