Recent Spike in Federal Criminal Prosecutions on Indian Lands
(01 Jul 2021) 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. 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. 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.

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.

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