Kolby KickingWoman
Indian Country Today

Tribes in Oklahoma are being proactive in the continued fallout of a historic U.S. Supreme Court ruling that reaffirmed tribal sovereignty.

The Cherokee and Chickasaw Nations see tribal-state compacts as a possible path forward to fix criminal jurisdiction gaps resulting from McGirt v. Oklahoma.

In July, the high court ruled in that case that Congress never explicitly disestablished the Muscogee (Creek) Nation Reservation boundaries in eastern Oklahoma.

The decision was celebrated throughout Indian Country, yet questions of criminal jurisdiction still loom over Oklahoma tribes and the state.

While the case specifically dealt with the Muscogee (Creek) Nation, Cherokee Nation Principal Chief Chuck Hoskin Jr. told reporters during a virtual roundtable Thursday that due to their similar legal history, the high court’s decision was a win for the five tribes of Oklahoma.

Hoskin described the ruling as a great victory and noted the tribe has been proactive in the months since. It has established a sovereignty commission and put $10 million into its criminal justice system.

“Since July, we've been working at the Cherokee Nation and the other tribes have as well to make sure that that victory is an enduring victory and to take on the responsibility that goes along with the Supreme court telling us what we always knew, which is that the reservations of the five tribes were never disestablished,” Hoskin said. “Try as Congress might, it was never disestablished.”

As Hoskin sees it, any challenges stemming from McGirt create space for opportunity.

One of the paths forward would be to cooperate with the state through tribal-state compacts. Stephen Greetham, senior counsel for the Chickasaw Nation, said there are more tribal-state compacts in Oklahoma than anywhere else in the nation.

“We have done so much good work in Oklahoma through compacting, through those voluntary agreements that tribal governments and state governments can enter into together to resolve jurisdictional disputes so we don't leave them to the courts to resolve for us,” Greetham said. “We figure out the rules of the game. It has worked for tremendous benefit here in Oklahoma.”

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Hoskin recalled times in the past where there were issues surrounding tobacco and gaming that were resolved through compacts.

In regards to criminal jurisdiction though, the Cherokee Nation leader says Congress may need to be involved in some manner. Up to this point, tribal leaders have voiced concern that any congressional legislation could undermine the McGirt decision.

However, Hoskin said that is something he will not stand for and that conversations with the state’s congressional delegation have been reassuring.

“It's my responsibility as chief of the Cherokee Nation to make sure that that victory in McGirt is one that's enduring, and I won't stand for any erosion of it,” he said. “I won't stand for any effort to disestablish our reservation because we fought too long and hard for it.”

The goal of tribes and the state are the same: They both want to keep communities safe, Hoskins said.

Yet the jurisdictional scheme imposed upon tribes can be difficult to navigate. Cherokee Nation Attorney General Sara Hill said federal law dictates how the jurisdiction plays out.

Under the Major Crimes Act, the United States prosecutes major crimes committed by or against Indians and only the United States can prosecute crimes committed by non-Indians against an Indian.

When it comes to victimless crimes or non-Indian on non-Indians crimes, those cases are prosecuted by the state.

Lastly, crimes that are committed by Indians against Indians are typically prosecuted by the tribe, unless it is a major crime, then it goes back to the United States.

Another hurdle is that tribes have been limited by Congress in the amount of penalties they can give out for any given offense. Tribal authority is limited to a sentence of no longer than three years and a fine.

“This is a system that the tribes have inherited on reservations. That's just what federal law requires; that's the jurisdictional scheme that is imposed upon us,” Hill said. “I think there are some real issues with that.”

One of the issues cited by Hill is a lack of resources and funding. The Cherokee Nation has put the aforementioned $10 million into its criminal justice system, and Hoskin said the amount it will cost annually is around $35 million.

There is hope that additional funding could come from the federal government, but the tribe is prepared to make difficult budget decisions should they arise.

The money will go to the tribe’s court system and attorney general’s office, and for the hiring of more marshals.

What remains to be seen is if the other tribes in the state will be on board with the idea of forming compacts. Indian Country Today reached out to the Muscogee (Creek) Nation for comment but did not receive a response.

As Greetham put it, at the end of the day, there has to be some level of working together.

“No one is adverse to Oklahoma success. We all want the same thing,” he said. “We just have to work together to get there, and compact is going to be the way we do that.”

Hoskin echoed those thoughts. He said the McGirt decision creates an opportunity, and it’s up to the tribes where they want to take it.

“We want to seize it, and we want to seize it in a way that's beneficial to our tribe and all of our friends and neighbors,” Hoskin said. “Now and for generations to come.”

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Kolby KickingWoman, Blackfeet/A'aniih is a reporter/producer for Indian Country Today. He is from the great state of Montana and currently reports for the Washington Bureau. For hot sports takes and too many Lakers tweets, follow him on Twitter - @KDKW_406. Email - kkickingwoman@indiancountrytoday.com

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