Attorney General Recommends Optional State-Tribe Compacting On Criminal Jurisdiction Post-McGirt

Oct 21, 2020

On Wednesday, Oklahoma Attorney General Mike Hunter released a letter detailing a new plan he negotiated with leaders of some of the Five Tribes that would allow them and the state to compact over matters of criminal jurisdiction. The plan would require federal legislation.

Oklahoma Attorney General Mike Hunter
Credit ok.gov

The letter comes three months after the McGirt v. Oklahoma Supreme Court decision that says the reservation of the Muscogee (Creek) Nation was never disestablished.

In the last week, Oklahoma District Court judges have affirmed that decision for the Chickasaw Nation and Choctaw Nation. A district court judge ruled in September that the Cherokee Nation's reservation was also never disestablished.

For criminal jurisdiction, this means the state of Oklahoma did not have the authority to prosecute cases against Native Americans that were committed inside the boundaries of these reservations or against non-Indians who committed crimes against Indians inside the reservation boundaries.

This change is a major shift from the way crimes have been prosecuted for the last 100 years in Oklahoma where the state has assumed it had jurisdiction to prosecute.

The legislation being proposed would allow the tribes to compact with the state to share criminal jurisdiction.

Attorney General Hunter said the compacting process can only happen through federal legislation.

“Federal prosecutors are doing all they can to keep up with the cases that are being handed to them, but their resources are being stretched,” Attorney General Hunter said citing the number of cases being brought forth for post-conviction relief. 

This tentative compacting proposal would clarify jurisdictional issues and could curtail the efforts of some in Oklahoma's Congressional delegation to introduce legislation addressing some of the concerns the state has raised over criminal jurisdictional issues.

"We believe if Congress is to act, it should act consistent with what has worked, and what works is Tribal self-determination and intergovernmental cooperation," said Chickasaw Governor Bill Anoatubby in a prepared statement.

"Oklahoma and the Chickasaw Nation are well able to work together, and we look forward to the prospect of working toward new compacts that build on our strengths and provide for the public’s safety,” Anoatubby continued.

Cherokee Nation Principal Chief Chuck Hoskin Jr. also backs the proposal. In a statement, Hoskin Jr. said that he's not willing to take a risk on the Cherokee Nation's sovereignty on actions taken by Congress. 

"The Attorney General’s proposal leaves matters relating to civil judicial and taxation for state and tribal resolution under existing law." said Hoskin Jr. "There is no need for Congress to weigh in on such matters, as the state and the tribes have historically, and in the future, can resolve such matters to our mutual benefit."

Hunter characterized this plan as "fragile" and a work in progress. He said he's had interest from the Cherokee and the Chickasaw Nation in the plan. He also said Choctaw Nation is considering the agreement and Seminole and Muscogee (Creek) Nation are "listening."

"Safety is everybody's first priority," said Hunter. "We've just fastened our seat belt and we're trying to work together—whether it's the feds, the tribes or the state."

After seeing the statement, Muscogee (Creek) Nation says this type of federal legislation is not necessary.

"We have yet to examine the details of Attorney General Mike Hunter’s latest request for federal legislation responding to the McGirt decision, but we have still not found any compelling evidence demonstrating such a federal response is necessary," a statement from Jason Salsman, Muscogee (Creek) Nation's press secretary reads.

"At first look, it appears that what AG Hunter is proposing already exists under federal law. P.L. 280, which allows for the transfer of subject matter jurisdiction to the state.  But the historical record shows that tribes that have voluntarily relinquished their authority have found themselves trapped and unable to ever recover their sovereignty."

A Second Attempt

Following the U.S. Supreme Court ruling that Muscogee (Creek) Nation's reservation was never disestablished, Muscogee (Creek) Nation and the other four Tribes released what was billed as an "agreement in principle," a blueprint that they and attorney generals office worked on to establish a way forward.

The July 16th agreement was widely panned and viewed as Muscogee (Creek) Nation giving up sovereignty they had fought so hard to regain. Subsequently, Muscogee (Creek) Nation and Seminole Nation withdrew their support.

This compact in the new proposal would mirror what the state and tribes did around the Indian Child Welfare Act (ICWA) post-McGirt.

In that instance, the state compacted with the Tribes to retain to care for Native children who were vulnerable and in need of foster placement.

"I think that's a template for how the state and the Tribes should consider working together on criminal justice matters," said Hunter.

The ICWA compact allows the state and tribes to cooperate and collaborate when dealing with the needs of vulnerable children who reside within the Muscogee (Creek) Nation's reservation.

Hundreds of children in the state’s foster care system would have been affected by the McGirt decision because of the state’s loss of jurisdiction.

The collaboration allows multiple jurisdictions, the State of Oklahoma and Muscogee (Creek) Nation to work together to protect vulnerable children.

Hunter had another recommendation on civil issues post-McGirt.

“Compacts on taxation have the possibility of easing the administration of state and tribal tax laws, increasing revenue to the tribe, and bringing certainty to state and local governments as to the revenue impacts of McGirt,” the letter reads.

More Equals Better?

"It's hard for me to see that anybody can have credibility if they argue that people in Oklahoma will be safer with two jurisdictions, two authorities in dealing with crime as opposed to three," said Hunter referring to the proposal.

Hunter explained that Tribes would drive the compacts and negotiate an agreement they're comfortable with. The state would assist with detention and arrests.

The proposal would trigger concurrent jurisdiction on the more serious crimes with the state and the federal government.

In addition, Hunter worries about the number of cases being taken on by the federal government without enough support.

"The volume of cases that are being undertaken by the federal investigators, the FBI, the U.S. Attorneys is just unprecedented," Hunter said."It's eight and ten times what it typically is for attorneys and federal investigators in the state."

Hunter worries that number will grow because of the two recent cases affirming the reservations of the Chickasaw Nation and Choctaw Nation. In two separate appeals, Oklahoma District Court judges upheld the McGirt v. Oklahoma ruling.

The affirmation of these additional reservations means federal prosecutors will likely see more cases because prior to these rulings, most of the change of jurisdiction cases were from Muscogee (Creek) Nation.

"The bandwidth of the federal government is limited," said Hunter.

Hunter says the new proposal will not help the new federal caseload in the short term. It addresses future cases and does not cover those that are currently being prosecuted by the federal government.

Hunter says as hundreds of cases are being appealed for jurisdictional issues, there needs to be an agreement in place to provide guidance.

The Way Forward

Earlier this month, Attorney General William Barr visited the Cherokee Nation and announced millions of dollars would be made available to Tribes in the wake of the McGirt decision, recognizing the need Tribes and the federal prosecutors have in the new landscape.

Ultimately, Hunter wants the state and the Tribes to create a framework they can agree upon, and he believes this proposal is a first step. It would involve more cross-deputization and more local and Tribal police working together on arrests.

Governor Bill Anoatubby praised the Oklahoma Attorney General for the proposal and cited Oklahoma's history of compacting with the state.

"In August, we communicated to the Oklahoma delegation that, if it is to act, Congress should build on our history of successful intergovernmental cooperation and provide narrow Federal authorization to empower Tribes and the State to compact on criminal jurisdiction," Anoatubby said. "We commend Attorney General Hunter supporting this approach."

This is a developing story, check back for more details.

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