Indian Country Today and Associated Press
The Cherokee and Chickasaw nations both have come out in support of “narrow federal legislation” that will authorize compacting between the two tribes and the state on jurisdiction issues stemming from last year’s McGirt decision.
The legislation is expected to be filed by U.S Rep. Tom Cole, Chickasaw Nation, as early as Tuesday. The Congress member from Oklahoma plans to release a statement after its introduction, according to the Associated Press.
In a press call Monday afternoon, Cherokee Nation Principal Chief Chuck Hoskin Jr. called today one of the most significant days since the McGirt ruling came down and said the legislation will unshackle the tribe by allowing it to compact in a meaningful way with the state.
“I think it'll allow us to take on the challenges and seize the opportunities relating to McGirt, in a way that is comprehensive, that addresses some gaps in criminal jurisdiction,” Hoskin said.
He went on to say that the legislation will protect Cherokee sovereignty, as well as protect 100 percent of the McGirt decision. As a tribal leader, Hoskin said he believes that it is better to have more options than fewer.
“We need more options, we need the ability to do what we've done so well for so many years, which is to cooperate, work cooperatively with the state of Oklahoma,” Hoskin said. “Work cooperatively with other jurisdictions to make sure we meet the interests that we all have and the interest that we all have is public safety. The interest that we all have is a blanket of protection over people, the interest that we all have is making sure victims have someone fighting for them. Making sure defendants are held accountable, but making sure they're held accountable in a system of justice that is fair. Making sure that all the resources that are needed to be brought to bear to do all of these things are available.”
The July 2020 ruling by the U.S. Supreme Court determined that the reservation of the Muscogee Nation was never disestablished by Congress and that Oklahoma prosecutors lack jurisdiction over crimes within the historic reservation boundaries in which defendants or victims are tribal citizens.
The decision has since been expanded by state appellate courts to include the tribal reservations of all of the Five Tribes, known historically as the Five Civilized Tribes, which cover nearly the entire eastern half of Oklahoma. As a result, hundreds of criminal convictions, including several death sentences for first-degree murder, have been vacated and tribal and federal officials have been scrambling to refile those cases in tribal or U.S. district court.
“We support federal legislation that is based on the core principle of self-determination, clearing the way for us to work with the state as we navigate the best path forward," Chickasaw Nation Gov. Bill Anoatuby said in a statement. “We look forward to working with our delegation to secure the passage of such legislation."
In an email statement to Indian Country Today, the Muscogee Nation said it is reviewing the legislation and its impacts, not only on them, but for all of Indian Country.
"We support every nation’s sovereignty and right to seek their own specific legislation affecting only them. We are reviewing the broad wording of this proposed act to understand its implications for not only the Muscogee Nation but all of Indian Country,” the tribe said. “It is imperative that any bill that may be crafted, is done so in a way that does not create a perverse incentive for the federal government to withhold funding and force tribes into compacts against their will."
However, Cherokee Nation Attorney General Sara Hill said the legislation being introduced by Cole will only authorize the Cherokee and Chickasaw Nations to enter into a compact with the state.
That doesn’t mean the other tribes wouldn’t eventually be welcomed to the table, though.
“[The] Cherokee Nation wouldn't oppose the other tribes seeking to be unshackled as we're seeking to be unshackled,” Hoskin said.
The proposed legislation would not diminish either tribe's authority or treaty rights, but would give the two tribes the express authority to negotiate a separate agreement, or compact, with the state over criminal jurisdiction. Hill said one area a compact could address is authorizing state criminal jurisdiction in cases involving non-Native American defendants committing crimes against Native Americans.
Alex Gerszewski, a spokesman for Oklahoma's attorney general, Mike Hunter, said his office supports the concept of allowing compacts with the state to address jurisdictional concerns.
“Like every piece of legislation, our support depends on the language and whether or not it fixes current problems without creating new ones," Gerszewski said.
Gov. Kevin Stitt's office did not respond to a request for comment on the proposed legislation, and it wasn't clear how willing he would be to engage in negotiations with the tribes. Despite his own Cherokee Nation citizenship, the governor's relationship with many of the Oklahoma-based tribes became strained after a drawn-out legal battle with them over casino gambling.
“I can always be optimistic," Hoskin said Monday. “I think I’ve got plenty of reasons to be pessimistic about Gov. Stitt’s approach to tribes in Oklahoma, but I take Gov. Stitt at his word when he says he’s concerned about making sure the public is protected and that victims are protected and that justice is served. Those are interests that I have as the chief of the Cherokee Nation."
It is unclear if there is a Senate companion bill and both Hoskin and Hill said they expect the bill to most likely take the rest of the year to work its way through Congress. They both also expressed confidence in Cole.
“I do have a lot of confidence in Congressman Cole,” Hill said. “I don't think that there's a Senate sponsor yet that I'm aware of, but certainly he's got expertise on how to move bills through Congress and I do have confidence in his abilities to do that.”
“There should be a very deliberate approach to this, it's a significant piece of legislation,” Hoskin said. “I've got great confidence in Congressman Cole as well, he’s got a reputation for advancing tribal interest on a bipartisan basis in the Congress and so for that reason I think it will attract a good deal of support from both parties.”