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Pathway on the McGirt decision to self-determination and the future of the Five Tribes

As citizens and leaders, we must serve our nation to preserve, protect, and build our jurisdictional sovereignty and justice institutions for a better future

J. Eric Reed

Citizen of the Choctaw Nation and an attorney

Dear Five Tribes,

Halito! I am again writing as a citizen of the Choctaw Nation and an attorney, scholar and advocate for Indigenous Self Determination who has practiced Federal Indian Law and International Indigenous Human Rights for the last 25 years.

I am writing this letter in my individual capacity as a concerned Choctaw citizen and I join in the Joint Choctaw Citizens letter written by other individual concerned Choctaw citizens provided to our leaders.

For the last century, the Five Tribes have labored under a forced and unlawful, colonially imposed system of justice that our tribes and our citizens neither needed nor wanted to be imposed upon them.

During this century of state dominion over tribes, disparity, bias, and marginalization resulted in tribes being unable to redress legally marginalization until now. For the century preceding 1907, tribes exercised jurisdiction over their tribal members. During this period, the Supreme Court’s decisions on federal criminal law and murder come primarily from cases arising in Indian territory so case law surrounding the issue of tribal jurisdiction is clear.

Please consider the life of Apushimataha (Pushmataha): a fearless warrior and charismatic leader who befriended, made alliances with, and benefitted Andrew Jackson and the U.S. government only to be betrayed by Jackson and others in treaty negotiations.

He simply asked Jackson and the U.S. government to keep their promises and word that the Choctaw would “have the lands as long as the grasses grow and the rivers flow.”

Pushmataha—who did not seek fortune or notoriety—was a humble Mingo/Chief to the Choctaw Tribe. While in Washington D.C., he fell ill and died serving our peoples to protect our lands and sovereignty. The Five Tribes were nevertheless removed to Indian territory known in the Choctaw words as Red Earth Oklahoma.

As citizens and leaders together, we must serve our nation the same way today to preserve, protect, and build our jurisdictional sovereignty and justice institutions for a better future. The McGirt decision has finally ordered that Congress be held to their word and promises and restored Tribal jurisdictional sovereignty to the Five Tribes.

Addressing the misconceptions, fears, and misunderstandings surrounding McGirt

Misinformed worries have been brought to bear in light of McGirt, including fears:

1. That the McGirt decision affects non-Indian property rights and non-Indian criminal cases within the Five Tribes Indian territory. People that make this false claim include fossil fuel industries, lobbyists, anti-Native organizations, and those with other business interests contrary or in competition with tribal business. These claims are false and constitute misinformation because the McGirt decision only affects criminal jurisdiction over Native Americans in Indian territory and civil jurisdiction involving some limited civil lawsuits involving tribal citizens, such as those involving the Indian Child Welfare Act.

2. That existing criminal cases will create a flood of appeals of Native American defendants who are incarcerated from previous state convictions. This has been the same argument that state prosecutors across the U.S. have used with any landmark case involving civil liberties and cases involving tribal jurisdiction. See Miranda v. Arizona, Gideon v. Wainwright, Griswold v. Connecticut, Crawford v. Washington. Despite these ramblings, the halls of justice have stood tall. Indeed, the system of justice has been improved and flourished each time a right has been affirmed or restored. The high estimate is approximately 2,000 cases across all of Oklahoma to be reviewed.

3. That state police will not have the authority to arrest Native Americans who are committing crimes within the Five Tribes Indian territory. This is incorrect because state and tribal law enforcement agencies may enter and have entered into cross-deputization agreements for many years. Indeed, across the U.S., including between the State of Oklahoma and the Five Tribes (as well as other tribes,) tribal and state police are cross-deputized to make an arrest of either a non-Indian or Indian offender. Then, that person, safely placed in custody in the appropriate jurisdiction, then bound over on the charges he or she faces in that jurisdiction. Additional provisions can be created by agreement on a temporary or time-limited capacity for state courts, judges, and staff to be cross-sworn as tribal court personnel on docket days where they do not have a state docket in those court buildings. Indeed, visiting judges—retired or otherwise—can also be sworn to function as tribal judges in the current state venues during off docket days at the courthouse until tribes can assume full responsibility over tribal jurisdiction, primarily through federal funding. The same arrangements can be made on a contract basis even if the state refuses to enter into these types of temporary time-limited agreements.

4. That non-Indian criminal offenders with Native American victims, such as in Oklahoma v. Bosse, could be released from prison because of confusion in state prosecutorial offices caused by the restoration of sovereign jurisdiction to the tribes. This belief (espoused mostly by the State of Oklahoma) is a misunderstanding because the alleged offender can file a writ of habeas corpus to the federal court for the determination of whether his case or sentence would be transferred to federal jurisdiction, or through state appeal, or whether state or federal jurisdiction applied. If such cases are determined to be federal jurisdiction, the defendant (offender) can be transferred to federal custody without release upon the issuance of a bench warrant and retried in federal court without any violent offender being released into the public. The U.S. Attorney’s Office is already in the process of transferring some of those major crime matters to Federal Court. Under no circumstances would the U.S. Attorney’s Office be lackadaisical about the prosecution of the murder of children cases within tribal jurisdiction and allow it to “slip through the cracks.” Statistics have shown that some cases have not been prosecuted over the years by the federal government on non-Indian offenders with Indian victims; however, studies on PL 280 states show a lack of resources and such crimes not being prosecuted in state courts as well from lack of resources.

In terms of misdemeanors and other federal offenses, the same statistics and studies apply regarding that such cases of a non-Indian offender with an Indian victim matters “slip through the cracks because of lack of funding. The best alternative to prevent this is to have tribal prosecutors sworn to serve as Special Assistant U.S. Attorneys that prosecute such offenses so they do not slip through the cracks. State prosecutors can also serve in such a role as well. This is what I did regarding those matters as a Special Assistant U.S. Attorney on the Cheyenne River Indian Reservation.

The Federal Magistrate can also utilize the tribal courthouses and or state courthouses or other administrative courtrooms in Oklahoma to schedule those dockets. Such cases are already handled that way for matters occurring on National forest, military reservations and wildlife refuge areas in Oklahoma where Federal Magistrate Circuit Courts handle the dockets.

In regard to felony cases with convictions similar to Bosse, the process of applying for post-conviction relief in an appellate court will require the defendant to file a post-conviction writ of habeas corpus and require the defendant to prove that the victim is an enrolled member of an Indian tribe. The burden will also be on the defendant to show that the commission of the crime was within the boundaries of a legal reservation, i.e. the Indian territory of one of the Five Tribes.

Additionally, the common law on the legal issue of laches will also have to be determined by an appellate court with the burden of proof upon the defendant as to why the length of requested relief was too long.

1. That because of the confusion caused by the McGirt decision, large numbers of criminal offenders in Oklahoma will be released en masse until it is decided whether their cases will be re-tried in federal court. This misconception is totally false. The Oklahoma attorney general and the tribes understand that the McGirt case does not constitute a get-out-of-prison-free card. Convicted individuals will have to file the appropriate post-conviction claim in either or both the state and/or federal appellate court for the determination of jurisdictional status. No person will be immediately released from jail without a status hearing and that offender either transferred from state to federal custody or held in either state prison or jail until the federal appellate court rules on a defendant’s motion regarding appropriate jurisdiction.

2. Another assertion is that federal legislation is inevitable in order to clarify legal questions arising from McGirt. Special interests with political rhetoric to present such a matter does not require Congress to clarify that which the Courts are already clarifying under the McGirt decision.

Certainly, the tribes being equally advised and involved in any planned legislative process is paramount during this time. Tribal disestablishment ideology is not new and fueled by anti-tribal factions, dark money special interests and racist organizations to spread this political rhetoric to the public because their design is to destroy the current tribal jurisdiction over its citizens and territory and institute state dominion over the Five Tribes once more, in effect creating a de facto Public Law 280 state.

Members of Congress are by law upon swearing an oath of office a fiduciary to the Tribes in the United States under the Plenary Power of Congress in a trust responsibility to the tribes as beneficiaries even though they espouse contrary political rhetoric or may have no intention of honorably fulfilling their fiduciary responsibility to the tribes.

Most importantly, in analyzing potential legislative proposals, many studies have shown that PL 280 states lack the requisite funding for law enforcement, leaving crimes underreported and unreported with tribes being worse off in terms of lack of law enforcement and prosecution than under concurrent tribal and federal jurisdiction.

PL 280 plans also leave all citizens and law enforcement agents confused, leading to neglected responsibility and “jurisdictional vacuums” where cases fall through the cracks.

Cases involving violence against Native women have been particularly susceptible to these problems that have been corrected under the VAWA with tribal jurisdiction. Other crimes, however, have also fallen prey to the problems PL 280 creates.

Under Congress’s trust responsibility, and under the oath that individuals elected to Congress have sworn to act as fiduciaries to Indian tribes, tribes become beneficiaries in a government-to-government relationship.

Only limited legislation is needed to properly transition jurisdictional responsibility from state courts to tribal and federal jurisdiction. The only thing this legislation needs to do is provide a proper and appropriate allocation of resources and funding for the tribes to capacity-build their justice systems. Consequently, the Five Tribes would be more prepared to take over jurisdiction in the Indian territory. This legislation would look much like Public Law 638, which acts for the benefit and self-determination of Indian tribes and their governmental institutions. Such a plan would be more successful and beneficial for both the state and Indian tribes.

The Path to Restoring Tribal Jurisdiction

In order to completely 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. The following three phases are ideas that should be considered in restoring complete tribal jurisdiction of the Five Tribes over Indian territory in Oklahoma.

The First Phase

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In order to get a baseline of where tribal jurisdiction stands, the following information is needed:

1. Data from the state courts on the number of Native American offenders tried in both misdemeanor and felony cases

2. The current monetary budgets of law enforcement agencies and courts of all counties within the territorial boundaries of the Five Tribes subject to the McGirt decision

3. An assessment of current tribal resources on the counties indicated above

4. Federal statistics, studies, data and information used for current Federal Funding to the state

Furthermore, the following should be done:

1. Establish a steering committee of the Five Tribes must to work jointly in creating a capacity-building plan for the justice systems of the Five Tribes and analyze the information as set out above.

2. Determine all immediately available funding options for the tribal justice systems to begin assuming jurisdictional responsibility.

3. Establish temporary agreements and contracts for transition of state jurisdiction to tribal jurisdiction. Such agreements would include state courts serving as temporary tribal courts over Native offender criminal cases and transfer of civil cases that would exclusively be under tribal jurisdiction, such as an Indian Child Welfare case. In the event that state courts or the State of Oklahoma refuses to enter into such an agreement, contracting visiting judges, hiring certain staff, and vetting volunteers who could potentially serve on rotating circuit court within the Choctaw nation (or similar temporary courts with the other Five Tribes) could be used until federal resources are obtained.

4. Draft legislation for the Five Tribes Resources Allocation Act of 2020 by October 2020.

5. Review and update tribal constitution and law and order code to be consistent with current federal law and restoration of tribal sovereignty.

The Second Phase

Once the above has been done, the following actions should be commenced:

1. Find and acquire appropriate facilities for tribal courts and law enforcement officing in the Choctaw Nation

2. Hire and/or enlist volunteers to be vetted and trained as tribal court staff, law enforcement, and other support staff for the tribal justice system

3. Contract with various training programs and entities to train law enforcement, court management, and other support staff

4. Implement and begin operation of tribal circuit courts

5. Continue any and all legislative efforts for federal allocation of resources and funding

6. Consider all other funding sources and a possible tribal bond package

7. Infuse funding into operating transitional court systems

8. Establish a steering committee to observe operations and plan for assumption of full jurisdictional responsibility

9. Create a liaison to work with U.S. Attorney’s Office on Federal Major Crimes Act prosecutions and encourage special U.S. Attorney relationship with liaison between the tribe and the federal government

10. Commission meetings and review of information and reports on law enforcement and justice system operations

The Third Phase

As a final phase in the transition to expanded tribal jurisdiction and sovereignty, the following should be done:

1. Evaluate a timeline for full tribal assumption of jurisdiction in tribal court

2. Continue both resourcing, funding, and training of law enforcement and court staff

3. Maintain cross-deputization agreements with state law enforcement agencies and retain resources to supplement state agencies in the cross-deputization role of the tribal justice system

4. Institute alternative peacemaking Courts and specialty programs for substance abuse in diversion rather than prosecution models on limited offenses.

This is not an exhaustive list, but merely a list of suggestions for consideration and discussion by tribal leaders and citizens of all Tribal Nations.

Yakoke for your time, attention and consideration

J. Eric Reed

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.