(CN) — The federal judiciary asked Congress on Tuesday to add five federal judgeships in Oklahoma as courts grapple with an expanded caseload caused by a Supreme Court ruling that shifted prosecutions of Native Americans from state to federal courts.
In a 5-4 order in McGirt v. Oklahoma, the high court held in July 2020 that federal or tribal courts, not state courts, have jurisdiction over cases in which Native Americans are accused of committing crimes on Muscogee (Creek) Nation land in eastern Oklahoma.
The decision was later expanded to the eastern Oklahoma lands of the Cherokee, Choctaw, Chickasaw and Seminole tribes.
It prompted a flurry of post-conviction appeals by other Native American inmates demanding their release from Oklahoma state prisons and forced federal prosecutors to bring their own charges to keep violent criminals behind bars.
The shift in jurisdiction has caused the number of criminal cases to increase more than 400% in the Northern District of Oklahoma, headquartered in Tulsa, and 200% in the Eastern District of Oklahoma based in Muskogee, according to the Judicial Conference of the United States, the policy-making body for the federal court system. The conference consists of 26 judges led by Supreme Court Chief Justice John Roberts.
So the Judicial Conference on Tuesday recommended that Congress authorize three new judgeships for the Eastern District of Oklahoma and two for the Northern District of Oklahoma.
The McGirt decision further complicated operations for Oklahoma federal courts as they, like courts across the country, are dealing with jury trial delays caused by the pandemic.
Doug Horn, senior litigation counsel for the Eastern District of Oklahoma’s U.S. Attorney’s Office, said before McGirt his office would prosecute 100 cases a year.
“In April we did 90. In May we did 84 and of those 56 of them were first-degree murder cases. That gives you sort of an indication of where we’re at,” Horn said in a phone interview.
To keep up with the caseload, Horn said, the Department of Justice added 33 more criminal-case prosecutors to the eight in his district and has also brought in other prosecutors from across the country.
The two federal judges assigned to the Eastern District of Oklahoma are also getting a lot of help.
“They’re bringing in judges from other districts to handle the workload,” Horn said. “There’s been a visiting judge here from Louisiana that has taken a full caseload. There are six judges from Oklahoma City that are coming in to try cases. There was an additional magistrate that came in from Texas to handle some of the initial appearances and detention hearings.”
It's the same situation in the Northern District of Oklahoma, where Acting U.S. Attorney Clint Johnson said he supports the Judiciary's request for new judges.
In the the past year, Johnson said, his office has hired 24 prosecutors to deal with the exponential increase of Indian Country cases.
Before the McGirt decision, Johnson's office prosecuted 240 cases a year. "Currently, we are indicting 50 to 75 cases each month," he said in an email. He noted he is prioritizing tribal cases involving violent crime and crimes against children.
"We are also working closely with attorneys general from the Cherokee and Muscogee nations as we refer cases to their offices," Johnson added.
Horn said the FBI has also had to bring in dozens of agents to Oklahoma to keep up with criminal investigations that became the responsibility of the feds thanks to the McGirt ruling.
An Oklahoma state court convicted Jimcy McGirt, a member of the Seminole Nation, of first-degree rape of a 4-year-old child in 1997 and sentenced him to two 550-year terms in state prison.
But his counsel successfully argued before the Supreme Court that because Congress never dissolved the Muscogee reservation where the crime took place, Oklahoma lacked criminal jurisdiction in his case.
He never got out of prison.
Weeks after the high court ruled in his favor, federal prosecutors charged him for the rape. He was sentenced to life in federal prison last month after a jury found him guilty of two counts of aggravated sexual abuse and abusive sexual contact.
Non-Indian defendants arrested on Oklahoma tribal lands can still be prosecuted in state court.
The Judicial Conference’s request Tuesday for five new judgeships in Oklahoma is in addition to 79 new ones they requested of Congress in March.
Leading the conference’s wish list is a request for 15 new permanent judges for the Central District of California. It has also asked Congress to authorize new federal judgeships in Alabama, Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Missouri, New Jersey, New Mexico, New York, North Carolina and Texas and two appellate judges for the Ninth Circuit.
As of Sept. 1, there were 82 federal court vacancies.
Since taking office in January, President Joe Biden, a Democrat, has nominated 41 people for federal judgeships and the Senate has confirmed 14 of them.
Judicial appointments were a priority for Biden’s Republican predecessor, Donald Trump.
He shifted the Supreme Court to the ideological right with his appointment of Justices Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh, who abortion rights advocates fear are eager to join the court’s other conservatives in rolling back the constitutional right to the procedure. The high court will hear arguments Dec. 1 in a challenge of Mississippi’s ban on abortions after 15 weeks of pregnancy.
All told, Trump, with the votes of a Republican majority in the Senate, appointed more than 200 judges to the federal bench, an accomplishment experts say will have consequences for decades to come as federal judgeships are lifetime appointments.
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