A federal prosecutor’s office in rural Oklahoma is struggling to hire new attorneys needed to handle soaring caseloads prompted by a Supreme Court decision that re-mapped Indian law jurisdiction.
The Muskogee-based Eastern District has finally secured Justice Department funding to expand from what was recently the second-smallest US attorney’s office in the nation — with only eight criminal prosecutors — to a capacity of 159 employees.
The office isn’t even close to filling the new slots, US Attorney Christopher Wilson said. He’s been trying to spread the word since early this year but has yet to find enough qualified applicants willing to relocate to an office next door to a largely vacant shopping mall and surrounded by long-idled oil wells.
For some lawyers, the lure of acquiring deep jury trial experience doesn’t overcome the drawbacks of living in or around Muskogee — an economically depressed city of 37,000 people — while prosecuting murders, rapes, and street crime on Indian lands.
“That’s a huge problem,” said Ben Hilfiger, a defense attorney who represents Muskogee on the Oklahoma Bar Association Board of Governors. “It’s hard to convince somebody to come to Muskogee from a metropolitan area or anywhere in the country.”
The need for more help has been acute since the Supreme Court’s 2020 decision in McGirt v. Oklahoma that said the state couldn’t prosecute crimes occurring on tribal lands. As a result, federal and tribal agencies now have to handle those cases.
Nowhere are the burdens felt more than Oklahoma’s Eastern District. The entire 26-county region, with a population of 730,000, falls within Indian territory.
Although former state and local prosecutors initially jumped at the opportunity to apply their craft at the federal level, many didn’t last long. While geography played a key role, it was also the stress of being overworked and adapting to the federal judicial system’s rigid criminal procedures, according to interviews with six former Eastern District line prosecutors.
“The problem is, a lot of folks go there for the experience, I think, and I certainly count myself as one of those,” said James Montoya, who moved from El Paso, Texas, to serve as an Eastern District prosecutor until last year. “But eventually they’re going to leave.”
Tulsa Contrast
Recruiting has proved easier at the adjacent US attorney’s office that’s a 45-minute drive away. The Northern District, home to Tulsa, has hired all its newly-allotted attorney positions from a nationwide pool of applicants. The office’s chief prosecutor says in the three years since McGirt, he’s doubled his ranks of lawyers to 68 this year.
“I’m very proud of the fact that we’ve been able to fill those positions,” said Northern District US Attorney Clint Johnson. “But I don’t have the same challenges as Chris does.”
Wilson, a veteran Oklahoma prosecutor, said his sales pitch emphasizes the “unique opportunity to get significant violent crime investigation and prosecution experience” at “the cutting edge of a significant change of jurisdiction.”
Selling points also include the affordable lifestyle in the booming nearby suburb of Broken Arrow and the scenic lakes and hills a short drive away, Hilfiger said.
The US attorney’s office, a modern decade-old structure with high ceilings, faces a row of dilapidated homes with occasional squatters, lawyers said. Its cramped quarters forces the overflow to a leased space about 10 blocks away.
The draw of Tulsa often pulls lawyers North to an office that similarly offers instant courtroom exposure because it, too, is greatly impacted by McGirt.
“It just really is a glaring difference between Tulsa and Muskogee,” said Ben Gifford, who left the Eastern District in 2021 and now practices in Texas. “There’s no doubt everyone was sort of secretly angling for the Tulsa position.”
As the oil boom shifted west last century, “Muskogee was sort of this forgotten city,” Gifford said. “And it looked like it.”
Dual Responsibilities
Justice Department leaders in Washington from both the Trump and Biden administrations were quick to identify the McGirt staffing issue as a major challenge. Dozens of prosecutors from across the country were temporarily detailed during the pandemic while others flew in for trials. The offices also hired lawyers on one-year terms.
It wasn’t until the fiscal year budget starting last October that DOJ was able to allocate permanent hiring resources commensurate with the reality that the Eastern and Northern districts now function as state district attorney’s offices.
The offices are still responsible for traditional federal enforcement of more complex white-collar crimes, which took a back seat as the districts prioritized violent crimes.
The only other US attorney’s office with those dual obligations is in Washington, which practices in federal and local courts and employs the largest workforce of all 93 districts.
But the DC office was unable to lend a hand when Oklahoma could’ve used its skills prosecuting district attorney-type cases. That’s because it was inundated with Jan. 6 insurrection defendants, which involved enlisting detailees of its own.
“I hate to use the word competition, but it was at the same time as we had a need for cases here in Oklahoma,” Wilson said.
At DOJ headquarters, the Executive Office for US Attorneys continues to provide “active recruitment” of assistant US attorneys and support staff to help the Oklahoma offices meet their McGirt-driven prosecution demands, a department spokesman said.
Rough Transitions
The increased tempo has been an opportunity for some potential recruits and has driven others away.
Prior to McGirt, the Eastern District “might go to trial once a year,” Wilson said. His office had 41 jury trials in 2022, including 16 for murders and 12 for sexual assaults.
But new hires often didn’t take to the formality of federal criminal procedures—with dense writing requirements and tight filing deadlines—multiple former Eastern District prosecutors said. Some lawyers accustomed to the looser style permitted by state and local judges couldn’t adjust.
“That’s a transition some people realized either, one, they don’t like, or two, they weren’t any good at it,” said David Youll, a private attorney in Tulsa and former Eastern District prosecutor.
Developing Talent
The hiring obstacles in Muskogee create an imbalance in capacity between neighboring districts that share critical roles in administering justice on Indian land.
It’s an untenable scenario to Robert Miller, a citizen of the Eastern Shawnee Tribe of Oklahoma and Indian law professor at Arizona State University College of Law.
“You cant allow chaos. You can’t have a disparity of justice in the Eastern and Northern districts,” said Miller, who co-authored a book about the McGirt case. “That’s just anti-society and good governance.”
Miller suggested focusing the outreach on local Oklahoma prosecutors.
Montoya, who moved back to Texas after 18 months, agrees.
“I don’t think this is going to be solved by outsiders moving there,” Montoya said. “You have to go and proactively recruit graduates from Oklahoma law schools, train them up, and hope they stay for the long haul.”
Brian Kuester, Wilson’s predecessor as chief prosecutor, said patience is warranted.
“Pragmatically, how quickly can organizations quadruple and still maintain some level of quality?” Kuester said. “Perhaps I’m just being sympathetic because I’ve been there and I understand the problems.”
Wilson also resists the notion he should lower his standard by giving away jobs “just because I have slots to hire.”
He’s continuing his outreach in the hopes of landing experienced trial lawyers. Even those who’ve left Muskogee can see the persuasion of that message.
“It was a heck of an adventure,” said Michael Warren, who served a one-year term appointment in Muskogee before returning to private practice last year. “Not only are you trying really important cases that you might not otherwise try if you were in Los Angeles or New York or Chicago” but “there’s also just that chance to help exactly where it’s needed.”
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