Recent Spike in Federal Criminal Prosecutions on Indian Lands
According to government case-by-case records analyzed by the Transactional Records Access Clearinghouse (TRAC), the number of federal prosecutions of violent crimes in Indian Country jumped after the July 2020 landmark Supreme Court decision in McGirt v. Oklahoma.1 The Court held that large swaths of Oklahoma were still under the jurisdiction of the Creek Nation of Indians, and that as a result, only federal law enforcement officers—not state and local officers—had jurisdiction to prosecute major crimes in what the federal government designates as Indian Lands.
As a result, cases that may have been prosecuted by state and local agencies in the past (if at all) are now being handled by federal prosecutors. Thus the uptick doesn’t necessarily reflect any uptick in violent crimes of this type, but rather a change in who is prosecuting them.2 Federal prosecutions for violent crimes in Indian Country particularly spiked in March, April, and May of 2021, driven almost entirely by a jump in prosecutions filed by federal prosecutors in the Eastern District of Oklahoma and the Northern District of Oklahoma. Little increase was seen in other districts with large reservations, or in the prosecution of other non-violent crimes by or against Native Americans.
These results are based upon a detailed analysis of the records TRAC obtained after lengthy and successful court litigation under the Freedom of Information Act against the U.S. Department of Justice.
The jump in Oklahoma prosecutions was sufficient to drive national numbers. Nationally, before the Supreme Court decision, prosecution numbers for years were well below 80 such prosecutions each month. The most recent three months recorded more than 150 monthly prosecutions, with 154 such prosecutions filed in federal court in May alone. When monthly FY 2021 prosecutions of this type are compared with those of the same period in the previous year, the number of filings nationally was up 163 percent.
Oklahoma accounted for 100 out of the 154 prosecutions filed in May. Another significant volume of cases, a total of 35, were filed in Arizona, with a smaller number of cases filed in South Dakota (7) and New Mexico (7).
The most common charges for these types of cases in May 2021 were for murder (49) and assault (39), as well as aggravated sexual abuse (10), sexual abuse (10), and sexual abuse of a minor (10). About 82 percent of the prosecutions in May were filed as a result of investigations lead by the FBI, with other prosecutions resulting from referrals by state and local agencies (7%), the Department of the Interior (6%), and other units at the Department of Justice (3%).
The increase from the levels five years ago in “Violence-Indian Country” prosecutions for these matters is shown more clearly in Figure 1. The vertical bars in Figure 1 represent the number of prosecutions of this type recorded on a month-to-month basis. Where a prosecution was initially filed in U.S. Magistrate Court and then transferred to the U.S. District Court, the magistrate filing date was used since this provides an earlier indicator of actual trends. The superimposed line on the bars plots the six-month moving average so that natural fluctuations are smoothed out. The one-year rate of change is based upon this six-month moving average.
This increase in these prosecutions does not reflect any increase in federal prosecutions for all crimes across the country. In fact, the overall number of criminal prosecutions each month remains remarkably low compared to recent historical data before the COVID pandemic began. The number of prosecutions in May 2021 totaled 6,725. In the first six months of FY 2020 before the partial federal government shutdown and the closure of borders, the average number of new federal criminal prosecutions per month was 12,471.
1. Harvard Law Review provides a description of the ruling in McGirt v. Oklahoma here.
2. See The Marshall Projects’ report here for more information on how the Supreme Court ruling could affect prosecutions on the ground in Oklahoma.