By Norm Smaligo, President at Oklahoma Retail Crime Association (OKRCA)

Imagine this scenario: You work up an embezzlement case on a new cashier taking cash daily from your front-end registers. You compile your video, partner with HR, and conduct an interview that would make your Wicklander-Zulawski trainer proud. Your cashier admits to over $3,000 in cash theft since she started and you get a beautifully detailed and accurate admission, written in such clear terms that 12 people who couldn’t get out of jury duty would have no problem understanding it.

You pat yourself on the back for a job well done as you call the police to come and collect your case and suspect. The police walk in and immediately recognize your cashier and inform you that this is now the 3rd time this year that they’ve been called to deal with her for an embezzlement. They also inform you that they have no jurisdiction to do anything with her today – and that you will have to let her (and your case) go.

How can this be, you ask? Your employer does extensive background checks – and she showed no convictions or pending charges! More importantly, you have video proof and a written confession to a felony amount embezzlement! What gives?

In one word: McGirt.

In 2018, the Supreme Court of the United States heard arguments in Sharp v Murphy arguing that most of the eastern half of the State of Oklahoma was never disestablished as a reservation by congress. Murphy ended in a 4-4 ruling (Gorsuch abstained as he had ruled on the case when he was with the 10th Circuit Court of Appeals). Unfortunately nobody in congress, the Oklahoma legislature, or tribal governments started any steps to correct what was an obvious potential problem.

The same arguments were brought back before a full bench SCOTUS in 2020 in McGirt v Oklahoma, and in a 5-4 ruling, SCOTUS agreed that eastern Oklahoma was still reservation land. Any enrolled member of a federally recognized tribe, with any quantum of Indian blood was only subject to federal or tribal jurisdiction for any crime occurring on tribal land.

This unleashed a jurisdictional nightmare of unpreparedness upon our state. Police departments facing a suspect with a CDIB (certified degree of Indian blood) card were unable to even make an arrest in some cases unless and until their departments were cross deputized with tribal police. Hundreds of incarcerated inmates in Oklahoma filed to have their convictions and sentences tossed due to lack of jurisdiction. Some of those cases cannot be refiled because the FEDERAL statute of limitations has expired. Those criminals will now walk free. The US Attorney’s for the Northern and Eastern Districts of Oklahoma are now drinking from the firehose of refiled Major Crimes that occurred in Oklahoma – including 10 death penalty cases. The FBI is now being tasked with investigating local murders that were previously handled by Tulsa Police.

Which brings us back to our embezzling cashier example: Embezzlement is not covered under the major crimes act, so the DOJ couldn’t handle it even IF they had the manpower to do so (which they don’t). The absolute maximum you can receive as a punishment in tribal court is one year in tribal jail (which don’t exist by the way. They contract with their respective counties for a set number of beds). Tribal Courts are not subject to the same open records laws as Oklahoma state courts – so your cashier’s two previous Embezzlement cases wouldn’t show up on a background check, even if the tribal court did something with them in the first place. After all, the tribal court system is overloaded as well. They have an even greater scarcity of practitioners than the federal courts – and are rationing accordingly.

The police are already seeing an increase in thefts of tribally tagged vehicles (tribal members in Oklahoma get their vehicle license plates from their tribe, not the state). Shoplifters who had their state charges dismissed due to McGirt are now shoplifting with abandon. After all – if there is nobody to punish you for committing a crime, why not keep doing it?

On top of this, questions about everything from taxation to regulation have popped up. One grocery store chain has asked for a ruling about exactly who they collect sales taxes from and pay them to. The new Biden administration has informed Oklahoma state agencies that they should cede regulatory authority over mineral rights in an oil-rich part of the state to the tribes – to which the Oklahoma Attorney General told those same agencies to ignore that demand, setting up a future constitutional issue. One that would impact almost a quarter of Oklahoma's yearly corporate tax revenue.

This problem wasn’t created overnight, and it won’t be fixed overnight either. It is going to require that the federal, state, and tribal governments sit down together and come to a resolution. Unfortunately, none of those three entities have expressed any interest in coming up with a fix. As the generators of the sales and property taxes that fuel our local economies – retailers must demand that our elected officials fix this problem. Uncertainty is bad for business, but not nearly as bad as the total breakdown in the legal system we’re facing.

I urge all of you to have your governmental affairs departments to reach out and demand answers and ACTION from our elected officials. As Pericles said: “Just because you do not take an interest in politics doesn't mean politics won't take an interest in you.”

OK Senator: James Inhofe
OK Senator: James Lankford
OK District 1: Kevin Hern
OK District 2: Markwayne Mullin
OK District 3: Frank Lucas
OK District 4: Tom Cole
OK District 5: Stephanie Bice
OK Governor: Kevin Stitt


About the Author:
Norm Smaligo is a President of the Oklahoma Retail Crime Association and a 29yr Loss Prevention professional. Smaligo authored Oklahoma’s Organized Retail Crime law passed in 2018, and its updated version in 2021. He has testified on retail theft issues before the Oklahoma Legislature and the Attorney General’s Criminal Justice Reclassification Council numerous times and helped lead the opposition to a soft on crime ballot initiative defeated in 2020 that would have been disastrous for Oklahoma retailers. He lives in Tulsa with his wife and is a member of the board of directors for the school his two sons attend.