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'Is This the Best System?': Cherokee Nation Urges Compacting In Criminal Jurisdiction

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The Oklahoma Court of Criminal Appeals affirmed that the Cherokee Nation's reservation was never disestablished after Judge Gary L. Lumpkin dismissed charges against 47-year-old Travis Hogner, a citizen of the Miami Tribe of Oklahoma.

Hogner was charged for possessing a firearm after a felony within the Cherokee Nation. He will not be retried because the statute of limitations expired in his case.

Over the last few months, the Seminole Nation, Chickasaw Nation and the Choctaw Nation have all had their reservation boundaries affirmed. Several post-conviction relief cases involving felony defendants challenged the state's right to try their cases after last summer's landmark McGirt v. Oklahoma decision ruled that the Muscogee (Creek) Nation's reservation was never disestablished.

Now, all five tribal nations must handle an increasing number of cases and responsibilities.

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Credit Cherokee Nation
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Cherokee Nation Attorney General Sara Hill

During a press conference held on Tuesday, Cherokee Nation Attorney General Sara Hill said the tribal nation has been preparing for the number of cases it must take on after the court's decision. She made it clear that the tribal nation is taking to ensure public safety and future criminal prosecutions.

Hill said the number of cases getting dismissed like Hogner's are rare, but that doesn't make it harder on victim's and their families.

"We acknowledge that that is a potential consequence and that it's not fair to the victims," said Hill. "We will do everything that we can to ensure that every crime that occurred is prosecuted. But, there may be circumstances where it's not possible to do that."

The Cherokee Nation began tracking cases that had the potential to be refiled before the Supreme Court decision came down and filed an amicus brief in the case. As soon as it was decided, the tribal nation set up a commission to look at expanding their criminal justice system to meet the demand of new cases and made some investments in their law enforcement office. At the moment, they are hiring more prosecutors and more marshals.

Hill said the tribal nation has re-filed more than 400 cases in tribal court since the ruling and is working with the federal government to do the same.

Cherokee Nation can also apply for a $2 million grant to hire two special assistant U.S. attorneys. These are positions that can work in both tribal and federal courts to provide some continuity.

Hill said there needs to be more of an investment from the federal government to fulfill their trust responsibility when it comes to criminal jurisdiction on reservation lands.

"The tribe has already made a 10 million dollar investment of its own dollars into improving our system. So, certainly we're going to continue to ask the United States for assistance in this expansion."

The Chickasaw Nation was also reaffirmed last month when the Oklahoma Court of Criminal Appeals decided that Shaun Bosse, a 39-year-old man sentenced to death, must be re-prosecuted in federal court. Bosse murdered Katrina Griffin and her two children, all Chickasaw Nation citizens, within the tribal nation's boundaries.

Attorney General Mike Hunter filed a motion for a rehearing in the Bosse case. In the petition, Hunter wrote that a rehearing is necessary because the court of criminal appeals overlooked arguments and authority offered by the state and that the decision conflicts with the state's post-conviction statutes.

“This is about fighting to ensure justice for victims of not only the brutal crimes committed by Shaun Bosse, but also those being revictimized by fallout from the McGirt ruling,” Hunter said in a statement. “We continue to believe the state has jurisdiction over non-Native Americans on tribal reservation lands, even if the federal government also has jurisdiction. Exclusive federal jurisdiction only applies to Native Americans."

Hunter insists that his decision has nothing to do with challenging tribal sovereignty.

The Attorney General is also asking the Court of Criminal Appeals to stay the ruling for rehearing.

Hunter believes that criminals like Bosse have sat on their claims for years and are taking advantage of the Supreme Court ruling. He said that under Oklahoma law, they cannot suddenly raise this issue and that the Oklahoma Court of Criminal Appeals ignored that when they made the decision.

Seminole Nation also had their reservation boundaries affirmed when the Oklahoma Court of Criminal Appeals in Seminole Country vacated the first degree murder and firearms possession charge of Kadetrix Devon Grayson.

Grayson, a citizen of Seminole Nation, was convicted in 2015 of shooting two people. The judges presiding over the decision determined that since the crime occurred within the Seminole Nation's rervation boundaries and that Grayson himself is a Seminole citizen, the state lacked jurisdiction to try the case.

Even though judges in Grayson's case affirmed the results, they took issue with the Supreme Court's ruling and asserted that the state, not the federal government or the tribes, has jurisdiction over these cases.

"While our nation's judicial structure requires me to apply the majority in the 5-4 ruling of the U.S. Supreme Court in McGirt v. Oklahoma, I do so reluctantly,' wrote Lumpkin. He said the nation's highest court, "cherry picked statutes and treaties without giving historical context to them."

Judge Robert Hudson from the Oklahoma Court of Criminal Appeals wrote, "McGirt resurrects an odd sort of Indian reservation. One where a vast network of cities and towns dominate the regional economy and provide modern cultural, social, education and employment opportunities for all people on the reservation...McGirt orders us to forget all that and instead focus on whether congress expressly disestablished the reservation." Hudson insisted that this was no, "cut-and-dried legal matter" resolved by "reference to treaties made with the Five Civilized tribes dating back to the 19th century" and that Oklahoma has asserted criminal jurisdiction since statehood.

Hill said that's the problem the Supreme Court's decision made right. Those treaties, she said, have meaning.

"The consequence of that was an acknowledgment that the state had been illegally prosecuting people, either Indians or people who committed crimes against Indians for 100 years," said Hill.

Hill said the next step is for Congress to act to help tribal nations and the state work together in a compacting process that will allow them to share jurisdiction in some cases.

The United States has a long track record of struggling to provide adequate law enforcement, prosecutors and other resources necessary to address crime on reservations. As a result, 50 percent of cases involving felony crimes are declined by the US government for prosecution-which leaves tribal courts to prosecute these cases and sometimes the maximum sentence is three years and a $5,000 fine.

Hill said that compacting with the state can solve the problems of the jurisdictional maze that victims and their families find themselves in when a felony crime occurs within Indian country.

"So the question, I think is why should the Cherokee Nation be left with a criminal jurisdiction scheme that does not serve citizens on our reservation? Is this really the best system?," Hill said.

Hill thinks legislation would create more options for the tribal nation and the ability to work with the state without restricting sovereignty or mandating agreements without tribal approval.

Chickasaw Nation also supports this approach.

So far, though there has been no timeline as to when that will happen or a blueprint for what that might look like.

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Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs desk.
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