Last week, Oklahoma Attorney General Mike Hunter announced his resignation, saying the controversy surrounding his recent divorce filing could overshadow the work of his office. His decision could jeopardize ongoing negotiations with two of the state's biggest tribal nations over criminal jurisdiction.
The Cherokee and Chickasaw Nation have been working with Hunter's office on legislation that would allow the tribal nations to share criminal jurisdiction with the state when it comes to prosecuting crimes committed by non-Indians on reservation land.
Last summer's U.S. Supreme Court ruling in McGirt v Oklahoma reaffirmed the reservation status of the Muscogee Nation, but it has since been applied to other tribal nations as they sought to have their reservation statuses reaffirmed.
On March 11th, the Oklahoma Court of Criminal Appeals ruled in favor of Travis Hogner and Shaun Bosse, two non-Indian offenders that sought post-conviction relief on grounds that their crimes took place on reservation land. The court agreed, subsequently reaffirming the status of both the Cherokee and Chickasaw nations.
Oklahoma Gov. Kevin Stitt will appoint Hunter's successor, and he has openly disagreed with the ruling, leaving prospects for further negotiations with the tribes uncertain.
Hunter, who was appointed after Scott Pruitt left to lead the EPA in 2017, will step down June 1st.
Oklahoma Rep. Tom Cole sponsored the Cherokee and Chickasaw Nation Compacting act of 2021, or H.R. 309, that will allow the two tribal nations and Oklahoma to have concurrent jurisdiction over non-Indian offenders. While it is specific to those two tribal nations, other tribal nations may join if they wish to compact with the state on criminal justice matters.
In a weekly address to his constituents on May 14th, Cole said that the McGirt decision as it's playing out on the ground in Oklahoma is "creating some law enforcement problems."
Cole, speaking from his office, said that the introduction of the bill is just the start of the conversation and that any form of legislation is not likely to pass soon.
Speaking about the legislation that was introduced on May 11th, Cole said he hoped that all the Five Tribes and the state could've come together and offered a way forward. But, after a year, he said it was clear there were differences of opinions on how to proceed from all sides.
The Choctaw, Seminole and the Muscogee Nations don't agree on the compacting issue.
"We have some tribes that think this can be done without federal legislation," said Cole highlighting some differences and tools already in place to address expanded criminal jurisdiction.
"You just need cross deputization and the federal government stepping up to fulfill its trust responsibilities," Cole said.
Jason Salsman, Muscogee Nation's press secretary has said to, "honor the trust responsibility to tribes. The Supreme Court has spoken, this is the way it is."
There is also a difference of opinion of those at the state level as well. Stitt, who hasn't been shy about his view that the McGirt decision favors disestablishment, while Hunter, who also doesn't like the McGirt decision, favors compacting legislation.
In a recent press statement, Stitt said he was encouraged by the introduction of federal legislation, but that he still has concerns about the bill in its current form.
Cole now must reach across the aisle to get members of Congress on board - Democrat and Republican - to get them to agree on a bill their constituents may not know anything or care about.
"I don't pretend it's an easy path forward, but at least it's a path," said Cole, who felt that doing nothing was not an option. He compared the compacting legislation to negotiations between the Chickasaws and the Choctaws and the state over water rights. He said it took five years, but it eventually got done.
Now, it's unclear what that path will look like given the Oklahoma Attorney General's departure. It all depends on who Stitt appoints in the role and what their position on compacting legislation is.
Oklahoma lawmakers recently budgeted $10 million for tribal litigation, which means they expect further court battles around the McGirt ruling.
Before his announcement, Cole said, "I think this is the best way forward for both the tribal and the state standpoint.”
He believes the legislation actually expands tribal sovereignty by giving tribes the tools they don't currently have to compact with the state.
The Cherokee Nation and the Chickasaw Nation agree, and say that the system they have now severely limits their prosecutorial powers. The federal government has limited their sentencing power to three years and at most, a $5,000 fine. Compacting with the state would also ease the financial burden. An expanded criminal justice system for both tribal nations would cost millions of dollars potentially taking away money for other and equally important services.
Both the Cherokee Nation and the Chickasaw Nation haven't commented on what Hunter's resignation means for compacting negotiations.
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