Editor's Note: An earlier version of this article stated that the Cherokee Nation, the Chickasaw Nation and the Choctaw Nation withdrew their support for the agreement in principle the Five Tribes drew up last week. A statement from Cherokee Nation Principal Chief Chuck Hoskin Jr. says that while they're taking the time to listen to their citizens, they are NOT withdrawing their support for an agreement in principle.
Last week, the Five Tribes and the State of Oklahoma seemed to be on the same page about how to deal with criminal jurisdiction issues following the landmark agreement ruling in McGirt v. Oklahoma. A few days later, it appeared there was more work to be done.
One day after releasing an agreement in principle, the Muscogee (Creek) Nation and the Seminole Nation withdrew from it, following criticism from citizens and a widely-shared Facebook post by Presidential Medal of Freedom winner Suzan Shown Harjo, who roasted it. Some said the agreement negotiated with the state gave up sovereignty and brought into question the tribe's jurisdiction.
Oklahoma Attorney General Mike Hunter said he was disappointed when he heard Musocgee (Creek) Nation Principal Chief David Hill and Seminole Nation Chief Greg Chilcoat were pulling their support.
"This is neither in the best interest of the State of Oklahoma, nor its tribal citizens," said Hunter.
Hunter told KOSU right after the McGirt v. Oklahoma decision was released that his office and the Tribes had been meeting for the last two years to hammer out jurisdictional issues that were likely to arise in the event the Court ruled in favor of McGirt.
Before the announcement that Muscogee (Creek) Nation was withdrawing from an agreement between the Five Tribes and the state, Prinicipal Chief Hill said he wasn't interested in any option that would undermine the Tribe's right to govern their Reservation. In a letter sent to the press, he reiterated that.
"The Nation will continue to pursue all appropriate intergovernmental agreements to ensure public safety within its borders, as intergovernmental agreements are the hallmark among sovereigns," Hill said in the letter. “In fact, many such agreements already exist and we will continue to build upon them. But the Muscogee (Creek) Nation will continue to oppose any legislation that diminishes the Nation's sovereignty."
REMAINING THREE TRIBES WANT "MORE DISCUSSION"
The Chickasaw Nation, Choctaw Nation and Cherokee Nation said they still support the agreement in principle but are taking the time to listen to more of their citizens and community members.
This happened the same day Governor Kevin Stitt announced a new task force he set up to resolve the issue. No tribal leaders were named to the task force, which causes concern that this could become another legal dispute between Stitt and the Tribes.
"So we wanted to make sure we struck a balance between yes, we're still at the table to see it through to legislation," said Cherokee Nation Principal Chief Chuck Hoskin Jr. "But, we're not going to be deaf and blind to the suggestions and criticisms."
The criticisms did come. About 50 protesters gathered to voice their opposition to the proposed agreement outside of a routine hearing the Cherokee Nation was holding on Monday in Tahlequah. Ashley Anderson, a Cherokee Nation Citizen from Park Hill, said more citizens needed to be consulted.
"If you asked Cherokees at-large across the counties, we wouldn't have agreed with that,” Anderson said. “It's like you're giving up your political bargaining chip, just saying we'll work with Oklahoma when they never work with us."
TRIBAL JURISDICTION IN QUESTION
Mary Kathryn Nagle, a Cherokee lawyer with Pipestem Law and advocate for Native women who have been victims of domestic violence, put a statement on her Facebook page last week questioning the agreement.
"The agreement states that the Five Tribes and OK will ask Congress to pass a law LIMITING tribal civil jurisdiction over non-Indians to only those situations where the non-Indian has a ‘consensual relationship, such as contracts’ with the Tribe," Nagle said.
She said this was language taken from thje 1981 Montana v. United States decision that dealt with an issue relevant to the McGirt v. Oklahoma ruling: whether the Crow Nation retained the power to regulate hunting and fishing on tribal lands owned in "fee simple" by a non-tribal member. The court ruled against the tribes saying they had no power to regulate land owned in "fee simple" by non-tribal members.
"That was a harmful decision for Tribal Nations, and non-Indian DV perpetrators have, since 1981, repeatedly used Montana to argue that Tribal Courts do not have jurisdiction to issue civil protective orders against non-Indian abusers because they, the non-Native abusers, did not "consent" in a contract to tribal civil jurisdiction," Nagle said.
Cherokee Nation Attorney General Sara Hill says the agreement-in-principle does address criminal jurisdiction over non-Native offenders. She specifically pointed to section 1A in the which reads:
Affirm the Five Tribes’ criminal jurisdiction throughout their respective treaty territories over Indian offenders, as well as those non-Indian offenders over which federally-recognized Tribes generally have jurisdiction in Indian country, such as domestic abusers covered by the Violence Against Women Reauthorization Act of 2013;
Hill said the agreement is meant to acknowledge the Montana v. United States ruling as being a limiting factor on Tribal jurisdiction.
"Do I have criticisms of the Montana decision? You bet you, I do,” Hill said. “But that is still what the law is in this country."
Hill believes this agreement in principle will not impede Native women seeking justice.
Oklahoma's Congressional delegation put out a statement saying they are considering federal legislation to address any concerns arising from the McGirt v. Oklahoma decision.
