"We've been operating, since I came to work for the Nation, as though we have boundaries," Chickasaw Nation Governor Bill Anoatubby said while talking about the recent Oklahoma Court of Criminal Appeals decision that affirmed what he already knew: the Chickasaw Nation's reservation boundaries were never disestablished.
Anoatubby has been the leader of the Chickasaw Nation since 1987 and is often referred to as "one of the most powerful people in Indian Country."
The leader of the Tribal Nation remembers a time when their operating budget was only a little more than $1 million, and most of that money came from the federal government. Today, the Chickasaw Nation boasts more than $500 million in annual revenue with multiple businesses and a state of the art medical facility.
These gains helped the Chickasaw Nation face the COVID-19 pandemic that disproportionately affected Native people, but that’s not the only challenge facing the Tribal Nation. They’re also taking on more responsibilities in prosecuting criminal cases in the wake of last year's landmark McGirt v. Oklahoma decision by the U.S. Supreme Court.
Anoatubby celebrated the Supreme Court's ruling because it affirmed the rights given to Tribal nations through treaties they signed with the federal government. These treaties gave the Tribes rights to operate their own governments, including the prosecution of crimes committed against citizens within their reservation boundaries.
But, the treaties weren’t honored.
"It put the state of Oklahoma in the position of doing things they didn't have authority to do," Anoatubby said.
The high court ruled the state of Oklahoma never had the right to prosecute crimes involving Native Americans or non-Natives when those crimes take place in Tribal lands.
But the unraveling of a system that developed over more than 100 years is proving complicated, and the story continues to unfold with every court ruling.
CONCURRENT JURISDICTION
On March 11, 2021, the Oklahoma Court of Criminal Appeals granted Shaun Michael Bosse post-conviction relief, saying the state never had the right to try his case.
Bosse is on death row after being convicted in 2012 of murdering a Chickasaw woman and her two children. Bosse, who is non-Native, should be prosecuted by the federal government because his victims were Native. The state lacks jurisdiction in those cases.
The ruling confirmed that the Chickasaw Nation's reservation was never disestablished and affirmed their Tribal sovereignty.
"We celebrate the vindication of our treaties. We appreciate intellectual honesty and the solidity of the law that the court applied,” said Stephen Greetham, Chickasaw Nation’s senior legal counsel. “We take great exception to folks who seem to be treating this like the sky is falling.”
The Chickasaw Nation says Oklahoma Governor Kevin Stitt is sensationalizing the case with statements like the one he made to The Oklahoman on April 14, 2021.
“Hundreds of criminal cases are going unprosecuted and hardened criminals are being set free,” Stitt said to the state’s largest newspaper.
The state of Oklahoma is trying to regain some of the rights it had before the reservation boundaries were affirmed.
On April 15, 2021, Oklahoma Attorney General Mike Hunter filed a motion for a rehearing in the Bosse case. That prompted the Oklahoma Court of Criminal Appeals to grant a 45-day stay.
Hunter plans to petition the U.S. Supreme Court asking for clarification. He believes Oklahoma still has concurrent jurisdiction over non-Indian offenders when they commit felony offenses on reservation land.
The Chickasaw Nation has filed a brief in the case saying it reserves the right to object to any petition filed with the high court.
"We believed and continue to believe that the reservations were disestablished at statehood, but we also have an obligation as officers of the court to the highest court in the land to respect their decision," said Hunter.
PUBLIC SAFETY
Anoatubby has repeatedly said "public safety is a priority" and believes the best course for the Chickasaw Nation is for the state of Oklahoma to have concurrent jurisdiction over crimes committed by non-Indians on the Chickasaw reservation.
But he wants Congress to settle the issue, not the Supreme Court.
"We can't give up any jurisdiction or even have concurrent jurisdiction with anyone unless we get a federal law that allows it," Anoatubby said.
"The Supreme Court’s McGirt decision created a public safety threat for tribal and non-tribal members," Stitt wrote in a Twitter post on April 14, 2021, where he also invited Oklahomans to share how they have been affected by the McGirt v. Oklahoma decision.
A fact-check of the governor’s claims published byThe Frontier finds that 36 people convicted of violent crimes were released because of the Supreme Court decision. Eighteen were immediately recharged in federal or Tribal court, and the other half were released because the statute of limitations had run out.
Many Tribal Nations including the Chickasaw Nation also have cross-deputization agreements that allow both Tribal and non-Tribal police to respond to emergencies.
In a letter dated January 27, 2021, Anoatubby said he and Hunter, the state’s Attorney General, had come to an agreement on a way to move forward with a relationship between the Chickasaw Nation and the state of Oklahoma.
"We welcome you joining us in this limited federal action," Anoatubby wrote to Stitt.
Stitt has not responded.
POTENTIAL FEDERAL LEGISLATION
The Chickasaw Nation has drafted language for potential federal legislation that could provide clarity around the criminal jurisdiction relationship between Oklahoma and Tribal Nations.
"We're not going to give up our jurisdiction," Anoatubby said. "We believe that we need to be the ones to decide what's in the compact [with the state of Oklahoma] because this is the jurisdiction of the Chickasaw Nation."
Even before the McGirt v. Oklahoma ruling, Anoatubby said his administration looked at how it would impact the Tribal Nation financially.
Anoatubby is a numbers guy. In fact, before he became Governor, he was an accountant. He said his office looked at the number of cases Chickasaw Nation would have to take on and how many people would need to hire to carry the caseload. The cost was in the millions of dollars.
He said Chickasaw Nation can pay for those costs, but that means not funding other programs that benefit Tribal and non-Tribal citizens.
“When facing change, there is sometimes a tendency to focus on challenges,” Anoatubby said. “Nevertheless, placing our focus on solutions is always more productive.”
May 30th is the deadline for the state to file a petition to the U.S. Supreme Court, and Hunter has asked for more time if needed. It's unclear if members of Oklahoma's Congressional delegation will take up federal legislation for compacting anytime soon.
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