McGirt ruling applies to the original Five Tribes as well to all tribes in the United States
J. Eric Reed
J. Eric Reed
Citizen of the Choctaw Nation and an attorney
Dear tribes, Indigenous communities, and Native peoples in America:
Halito! In this opinion-editorial, I will be discussing the realities of building up tribal justice systems.
In the McGirt case, the United States Supreme Court issued clarity about how tribal jurisdiction applies to every tribe in the United States.
While the specific language in the legal opinion focuses on the Muscogee Creek Nation, the case ruling on the law applies to all of the original Five Tribes in “Indian Territory” as well as all tribes in the United States. The ruling orders that unless “Congress expressly and clearly disestablished or diminished a tribe’s sovereignty, then that sovereignty is still intact.”
None of the allotment acts disestablished or diminished any of the Five Tribes’ sovereign jurisdiction. Legal scholars have discussed this issue for years as a question of the timing of litigation rather than substance in the law. Indeed, the Oneida Nation’s existing sovereignty was upheld on the same ruling in McGirt on a state regulatory issue.
Again, the ruling and order is not a gift, the ruling simply provides complete and undeniable clarity to everyone about the proper lawful territorial jurisdiction of tribes. In previous legal opinion letters and the joint Choctaw attorneys’ letter, ideas and recommendations that the tribes should undertake for building infrastructure for tribal jurisdictional sovereignty and justice system staffing in a traditional and cultural manner were suggested.
We need to consider necessary steps to begin temporary and time-limited transitional agreements with the state until Congress fulfills its trust responsibility to the Five Tribes and to other tribes across the United States where they will have sovereign jurisdiction restored.
Tribal capacity building with resource allocations to tribes from Congress
The question is now: “How will it be done?” Tribes need to draft their own resource allocation legislation and tribal councils should consider issuing tribal resolutions to send to Congress for resource allocation. Congress in its trust responsibility to tribes must allocate the necessary and proper resources with funding for the tribes to rebuild the systems of justice and infrastructure in Indian territory as reservations.
Congress — nor any of its elected members — are allowed to turn their backs on tribes and/or fail the tribes upon the order of the court. If Congress fails to properly act in their fiduciary role with plenary power to allocate necessary resources and funding for the tribes, then the tribes can file a writ of mandamus under the McGirt decision directing Congress to fulfill its responsibility to the tribes.
The clear path forward for both tribes and states are equal and fair agreements to support the transition from state to tribal jurisdiction to enrolled Indians within all boundaries of Indian territory. This will unify all tribes and all peoples in the United States.
Generally, the only impediments to an unbiased, fair, and equal process to meet this goal are the motives of the leaders on both sides as well as the issue of money. People often act predictable and self-centered when money is involved, when their focus should be for the betterment of the marginalized.
With a concept of duty and service for the good of all, tribes and the state can work together to deal with this jurisdictional change while honoring the Court’s order as the ultimate goal.
There are already cases in the tribal jurisdictions of Indian territory where state courts are dismissing charges, complaints, or indictments through the United States Attorney’s Office where the tribal courts can take charge of the prosecutions of which the tribes have exclusive jurisdiction.
Because of the trend of anti-tribal and anti-Native sovereignty rhetoric and policy under the current political regime in the executive office setting policy over the Bureau of Indian Affairs, tribal leaders are weary and must deal in “realpolitik” and negotiate with everyone whether friend or foe in the system. Public officials must realize that they are sworn to uphold the laws that protect all people. Whether tribal citizens or leaders, we must fight to preserve our tribal sovereignty and understand these jurisdictional issues are going to be the battleground of our future.
It is a Congressional trust responsibility to serve as fiduciaries to tribes. To see Senator Inhofe and others breach that fiduciary duty, take an anti-Native stance given their oaths of office, and promote, support, and even attempt to legislate contrary to that fiduciary duty and trust responsibility — that they are required to uphold — is disconcerting.
The only simple legislation needed is for Congress to provide a proper and appropriate allocation of resources and funding for the tribes to capacity-build their justice systems.
The Five Tribes, with proper funding, can seamlessly take over jurisdiction in Indian territory for the benefit and self-determination of Indian tribes and their respective governments.
Such a plan would be successful and beneficial for both the state and tribes now and in the future.
Creating fair, jurisdictional, time-limited, and Indian Child Welfare-related state and tribal agreements
Chickasaw and Choctaw chiefs have entered into jurisdictional agreements with the State of Oklahoma. While starting off with nature talk about sovereignty, it ultimately ends with the same pre-McGirt jurisdictional scheme in place.
In order to work to restore the sovereign tribal jurisdiction of the Five Tribes, the tribes must think like a nation vested with self-governance, not simply as managers in a corporation.
Many have voiced great disappointment with tribal leaders for entering into an agreement that in essence resembles the same state jurisdictional arrangement that existed before the McGirt decision.
Our tribes must transition to build our system of justice which will take time. Using this time wisely to establish an infrastructure for jurisdictional sovereignty is the ultimate goal.
Despite non-Indians squealing like pigs stuck in a fence and state officials and their minions refusing to acknowledge the nationwide ruling in McGirt’s majority opinion, the order is based on long-established federal law applicable to any tribe.
The ruling in the case is not somehow slowly creeping like the plague from tribe to tribe with tribes awaiting the law to cross their borders. Instead, the ruling is omnipresent, unifying, and tribal planning should focus on a future with the goal of complete jurisdictional sovereignty rather than capitulation to the state’s dominion.
Tribes and the tribal leaders are faced with a Hobson’s choice, (take it or leave it) in that tribal systems are unable to adequately operate as tribes begin to capacity build.
Tribes must build up their court staff, law enforcement, and social services providers for the system of justice. I imagine that program directors are attempting to gather information to do that at this time.
Indian Child Welfare Act
In terms of Indian child welfare, tribal leaders need to be aware of the Brackeen v. Bernhardt case and the intent of the anti-Native movement to have the Indian Child Welfare Act held unconstitutional pending a decision in the 5th Circuit US Court of Appeals after the en banc rehearing this year.
Choctaw and Chickasaw Indian Child Welfare Act “intergovernmental” agreements creating a concurrent jurisdiction arrangement do not appear to have an end date but there is a ninety-day written notice of dissolving the agreement.
Without an end date with finality, tribal leaders should be sure that any such agreements — particularly with such circular language — be a time-limited, transitional agreement with terms for dissolution and not an agreement that might function like a “roach motel” where you enter into it but never come out.
Analyzing both agreements and based on the Allotment Act for the Chickasaw and Choctaw under the Curtis Act which passed in 1898, tribes retain jurisdiction over all their lands including allotted lands based on Section 68 of the Act. More importantly, it passed after the Atoka Act failed in 1897 because it included language that pointed to the tribes becoming part of statehood. That language was removed from the Act. The Curtis Act noted that no legislation could affect the sovereignty of the tribes and called for funding so tribes could issue bond packages to fund infrastructure in tribal municipalities within their boundaries.
Before tribes enter into further agreements, the leaders should consider and openly publish the agreement for comment and consideration by the citizenry and advisory groups.
The tribe’s children are its most precious asset and proper staffing and awareness by tribal leaders are paramount to build a functional system rather than systems unaware of the concept “family, faith, and culture” in the Five Tribes.
Our tribes can not allow what is happening to Native children in state juvenile and fostering systems across Indian Country as demonstrated by the studies of abuse and profiteering that have been exposed by child advocacy organizations and investigative journalists.
Capacity building tribal criminal justice systems and advisory groups
The “Strong Choctaw Community” task force
It is encouraging to see the tribes establish committees, advisory groups, and commissions to advise and assist the tribes, as it’s important to create complete transparency with the tribal citizenry and leadership.
Chief Batton organized an advisory group and he described it as follows:
“We've identified five broad categories of questions we see arising from McGirt: law enforcement, judicial, taxation, regulatory, and Indian child welfare … Each of the five categories includes lots of questions ... This decision will impact our tribe and its members from now on so I want to make sure we assess every opportunity to maximize our sovereignty and protect our citizens all while being a good neighbor”
“Our task force is composed of representatives from Choctaw government departments handling legal, personnel, education, communications, government relations, member services, and quite a few other areas ... They are not a small group and they are working remotely and having video conferencing of at least 20-30 employees. Our immediate task is to figure out the impacts across the Choctaw Nation, and organize ourselves. People from our government departments speak frankly about their questions or needs, and if we can't sort it out right there and then, we make a note to work on it later.”
“Our first action item was to post ten new tribal patrolmen positions … We're also looking at hiring an additional seven people to help with Indian child welfare — six social workers and a supervisor. Most people think of law enforcement whenever they think of sovereignty because they're so visible ... Indian child welfare is equally important and is an important and meaningful expression of our sovereignty. It's one of the most important ways we say who we are as people.”
The group has just been renamed the “Strong Choctaw Community” task force. The Choctaw citizens hope that more substance about the group is revealed and that it will reflect the Choctaw Tribe’s spirit in this endeavor just as Chilita Lukoli Im Aiahli or zealous sovereignty group for justice served as the advisors for the Tribe during the transitional challenges ahead to restore jurisdictional sovereignty.
Chief Batton’s update on developments in the Choctaw group and the Choctaw system of justice is reassuring but it’s also understandable that citizens are concerned about what is actually being done in an effort to assume responsibility for the long term.
Similar concerns reverberate throughout the Five Tribe’s in Indian territory as a result of all the fear-mongering over the McGirt ruling.
Tribal leaders should be aware that there is a growing concern among the citizens of the Five Tribes about the lack of transparency regarding tribal member participation, input, or identifying how any plan will materialize.
The Muscogee (Creek) Nation Mvskoke Reservation Protection Commission
The Muscogee (Creek) Nation has announced appointments to the Mvskoke Reservation Protection Commission to prepare and plan for the implementation of full tribal sovereignty.
In establishing an advisory body, the tribes may want to include proper input from its citizenry to identify how the individuals were chosen, who they are, what special skills or experience they possess, and what each person’s qualifications are in the area of transitioning a justice system from one government to a tribal justice system.
There are a few attorneys who assisted with the transition of BIA justice systems over to tribal justice systems in the early and mid-1990s that have great knowledge and could assist to improve the learning and growing curve for the tribes in their respective transitions.
Transparency dictates that any funding allocated — whether tribal or other sources — should be published with an itemized budgetary outlay of expenses that are based on drawdown funds, not immediate allocation. Additional accountability regarding the use of the funds throughout the process of spending for capacity building is important. Moreover, individuals chosen as independent experts require independent vetting and qualifications.
The Chickasaws have issued their vision of the future post-McGirt as follows:
- Communicate the fact that the McGirt decision does not currently apply to the Chickasaw Nation.
- Collaborate with state and local law enforcement agencies, district attorneys, courts, and the public to develop a better understanding of the implications of the decision.
- Develop a plan for the time when the McGirt decision may be applied to the Chickasaw Nation.
- Make preparations to modify tribal operations as needed.
- Analyze options available to all constitutional departments of government and develop best practices to determine a course of action for each department.
- Develop a comprehensive plan of action to prepare for possible future expanded jurisdictional authority and responsibility.
- Make preparations to fund and implement the plan of action.
It is unclear why the Chickasaw must collaborate with the state to understand the clear ruling of McGirt but it is important to work with state agencies to make sure all the state agents are trained and understand the Court’s order regarding restored tribal jurisdiction.
It is refreshing to see that the Five Tribes have backed away from the State’s original plan to reinstate a pre-McGirt jurisdictional scheme where legislation is not needed other than proper funding for all of the Five Tribes to assume responsibility of their jurisdiction again.
Transparency is critical
Without real and substantive information about the important and critical issues affecting tribes and their tribal sovereignty, tribal citizens could feel as if they have seen an apparition floating around the room without substance, shape or form, such an experience would create more questions than answers.
Without openness and transparency, citizens get confused and lose faith in tribal leadership. It's like watching and listening to a fire suppression convention panel where bureaucrats discuss how ‘fire is dangerous, and that we need to fight fires and need to have firefighters but refuse to allow discussion about water as a critical requirement in firefighting.
Clear and transparent information regarding important, detailed, and substantive information about what the tribal leadership is doing to proactively assume responsibilities of jurisdiction sovereignty, helps the citizenry clearly understand how they can help their tribe and removes this false apparition fear.
Three transition experiences tribes should consider in capacity building justice systems
There are several models for tribal criminal justice prototypes that I have seen or worked with over the years. It is important for all to understand that Tribal-State jurisdictional arrangements can take years to fine-tune but in the end, the tribe having jurisdiction over its internal tribal matters has always been a more efficient and more equitable outcome that improves justice and public safety for citizenry in both systems.
Capacity-building may be characterized in three phases that should be considered in restoring complete tribal jurisdiction of the Five Tribes over Indian Territory in Oklahoma in my prior opinion-editorial.
Example #1: A tribal jurisdictional capacity building plan
The first example of a tribal jurisdictional capacity building plan that I participated in was when I was a young tribal attorney and prosecutor at the Cheyenne River Sioux Tribe. I participated with tribal leaders, law enforcement, and other professionals with the tribal administration, federal officials, and independent consultants in leading the transition of the tribe from the Bureau of Indian Affairs control to tribal courts, tribal police, probation, mental health, and tribal child welfare services control.
The groups advised the Cheyenne River Tribal Law and Order Committee along with the Tribal Chairman during the transition and continued planning that uplifted sovereignty and improved the justice system after assuming the responsibility of the justice system.
The Cheyenne River and other Lakota Oyate tribes in South Dakota did the same and formed a coalition of support with each tribe. The Lakota tribal justice system transition was accomplished without even close to the amount of financial and labor resources available to the Five Tribes. The tribe also achieved a successful transition that included open substantive, transparent, and clear information provided to the tribal citizenry and discussed regularly in council meetings.
The tribal justice system was able to create a substance abuse treatment facility inside of the correctional facility and jail and was a first in Indian Country and perhaps the nation. The Cheyenne River Sioux Nation created a model and an example of a sovereign tribal justice system on a reservation.
Using a capacity-building approach to promote tribal sovereignty, I prosecuted the first Murder case in a Tribal Court as a homicide matter since Ex parte Crow Dog, 109 U.S. 556 (1883) and the passage of the Federal Major Crimes Act in 1885. Before the Violence Against Women Act was created, I was able to get the Federal Government to do a pilot program serving as a Special Assistant United States Attorney regarding Non-Indian violence against Native Women.
The Cheyenne River Sioux Tribe through Carmen O’Leary also supported a non-profit women’s shelter to end the cycle of domestic violence on the reservation.
The strength of a tribe’s justice system enhances and supports foundationally the sovereignty of its tribe.
Example #2: Utilization of a transitional jurisdiction process to foster sovereignty and incorporate traditional cultural values and customary laws of equity
Another example of how transitional jurisdiction processes can work to foster sovereignty is how the American Bar Association created the Central and Eastern European Law Initiative (ABA-CEELI) fostered this on an international level.
I served as a legal liaison to teams in each of the former Soviet-block countries that were creating more transparent justice systems. Instead of a specific justice system model, the team's focus was to create fair and unbiased tribunals in these countries that used international standards of human rights with free and open court systems. During this process, criminal and penal codes were drafted and refined.
The next step was training judicial officials, court staff, prosecutors, and defense attorneys. Each evolving independent justice system also incorporated traditional cultural values and customary laws of equity of their respective region into each of the emerging systems of justice with uniform laws and codes where anti-corruption and integrity were infused in each member of those systems.
Drafting laws for each of the countries utilize volunteers, hired staff, and ongoing training. The systems also became part of the European Union and Human Rights Courts. Additionally, the International Criminal Court and the War Crimes Tribunals were created because of the human rights and war crimes that occurred after the Soviet withdrawal from the former Yugoslavia and other eastern European countries. The focus was to establish anti-corruption in government and fair, open, and transparent justice systems in each country.
Example #3: Avoiding the missteps of a U.S. Agency for International Development (USAID) plan
Lastly, an example of a failed attempt at building a justice system includes a USAID plan to impose common law systems on Indigenous populations and communities in Bolivia. This effort was part of the Bush Administration’s nation-building policy designed to promote private interests that wanted to drill oil and gas wells on the “Altiplano” or High Plain of Bolivia to assuage those multi-national companies that systems like the justice systems in the United States would be the governmental authority and not the indigenous traditional system.
The Bush Administration wanted Bolivia to install a government to create democratic systems and establish an American model of common law courts to govern the Bolivians and Indigenous populations as well. The plan under a contract required high-level goal meeting requirements for the fledgling and complex plan. The greatest mistake for transitioning or instituting any plan for a justice system is to create and impose a system of governance or justice on peoples who neither need nor want such a system.
When enlisted to review the plan, examine what was planned, and provide an advisory to USAID on whether to accept such a contract, the team I was working with declined the contract. I assembled a team to review the matter, research all of the issues, examine the resources, and prepared an advisory that evaluated the contract and the plan.
Understanding the entire culture, history, and traditions of both tribes and what the expectations were on the contract, we clearly informed the proponents of the plan that not only was there no need to completely replace the justice systems that both tribes have used for centuries to resolve problems in their communities but also for the proponents to understand that the existing indigenous systems functioned optimally for the peoples.
More importantly, despite how those systems might be different from the U.S. systems of common law justice, the existing systems did not need to be eliminated but instead enhanced through appropriate funding, training, and resources of the local Indigenous peoples in the existing traditional justice systems.
Additionally, creating an enhanced Indigenous system would recognize the uniqueness of the Quechua and Aymara Tribal systems and incorporate concepts of fairness, transparency, and unbiased application of law and equity-based on tribal norms, laws, rules, processes, and justice.
Further, with the infusion and inclusion of international human rights laws, United Nations declarations, treaties, some common law processes and other recognized norms of human rights into the existing systems would also foster trust in the system by the majority Indigenous population rather than a corrupt colonial justice system.
Rather than imposing an unfamiliar system upon these communities, the team recommended that the existing Indigenous systems be bolstered and improved and would be successful in accomplishing the plan’s goals.
We advised that forcing a common law system of colonial construct upon these tribes would be unsuccessful and such a system would fail and fold in mere months.
Under the tribal systems, where the fear from private interests created this push for a common law system, those interests could be assured fair processes in the Indigenous system by following our recommendations.
Additionally, private interests were encouraged to become vested and involved as partners in the local community. By being involved in the improvement of the community, the process would establish trust and relationships based on tribal norms and cultural associations for long term success.
A community partnership
A community partnership would be able to also add to the betterment of the community from hiring and training available local labor force as support personnel to allow those communities to prosper with the multinational corporations through a joint cooperative relationship in the business plan.
Using that approach would have promoted the private interest endeavors in the region as a cooperative plan with the Indigenous peoples and communities being involved in all of the plans.
With a trusted justice system for the tribal peoples, the companies would be held to local standards of fairness and a part of improving life in those communities with consideration of the reality of the existing Bolivian government structure.
Unfortunately, USAID and the Bolivian government did not take the inclusive approach and imposed a system that was incredibly corrupt and within less than 6 months the system failed, the government was ousted and Evo Morales was elected as President of Bolivia. The tribes and their people ousted the corrupt officials in each of the communities in the fledgling government, police, and court systems.
The Indigenous former tribal officials simply put on their traditional police sashes and re-opened their traditional systems of justice that have been time tested and trusted by the communities.
Indigenous peoples do not want a system of justice that is not based on their culture and traditions.
All of the tribal leaders, commissions, or advisor groups should in the process of transition, be open, engage independent experts, and be transparent in the transitional process of temporary agreements.
During capacity building, the leaders should also keep the concept of cultural norms, traditions, and equity as part of any Indigenous justice system that is created and grown so that it functions to seek justice and not become oppressive.
The tribal leaders should engage professionals who have transitioned, created or improved Indigenous sovereignty, tribal justice systems and include tribal citizens in the entire process so that it is done traditionally and inclusively.
Yakoke! Thanks for your time, attention, and consideration.
J. Eric Reed http://jericreedlaw.com/practice/
J. Eric Reed has practiced criminal trial and appellate law for 25 years and served as Tribal Prosecutor and Special Assistant United States Attorney on the Cheyenne River Sioux Nation and Special Prosecutor on various tribes in the United States. He is a citizen of the Choctaw Nation of Oklahoma.