'There's Been Stops and Starts': Oklahoma Attorney General Wants Agreement Between State And Tribes

Aug 21, 2020

The state of Oklahoma and leaders of the Five Tribes are just beginning to figure out how they will handle criminal jurisdiction and other matters in the wake of the historic U.S. Supreme Court decision McGirt v. Oklahoma. KOSU's Allison Herrera spoke with Oklahoma Attorney General Mike Hunter on what he'd like to see going forward.


Allison Herrera: I spoke with you the day the McGirt decision came out and you said your office, leaders of the Five Tribes and other agencies had been working on a plan since the Murphy case. You said you were figuring out how you would work together on some of the issues we're seeing pop up as a result of the [Carpenter v. Murphy] decision. Can you walk me through some of those discussions you had? And tell me, do you feel like the work you did on the back end back then has been pushed to the side because of all of the developments in recent weeks? 

Oklahoma Attorney General Mike Hunter
Credit ok.gov

Attorney General Mike Hunter: I think it's on hold. I've characterized the continuum we're in now as a cooling off period. There was agreement with regard to what we referred to as the agreement principle.  It is nothing more than a proposal in very general terms about how Congress should consider acting to restore criminal jurisdiction to the state again on a concurrent basis with the tribes in the federal government. Then, we would deal with uncertainties around civil jurisdiction, both with regard to how the tribe can exercise civil jurisdiction over non-Indian individuals and non-Indian business activities, as well as clarifying the extent to which the state is able to exercise its civil jurisdiction over tribal members on land outside of trust, property or land owned by the tribe. So that was the goal. 

Several of these tribes, I think, are experiencing a lot of concern. I really feel that most of it is a misunderstanding about what the agreement principle does. It doesn't erase the important aspects of McGirt, which establishes that the Creek Reservation wasn't disestablished at statehood and that they have sovereignty with regard to, again, those historic lands that are now the Creek Reservation, which encompass almost 10 counties, including Tulsa. 

I think the best approach to our challenges in the near term is patience-and working to inform and discuss and ensure that there is not misunderstanding, because there's been a good deal of that, and I think unfair and misplaced rhetoric around the decision.  At the end of the day, we, here in the state, Native Americans and non-Native Americans have had a very symbiotic, mutually beneficial relationship. Native Americans are judges and Congressmen and state officials. We can't let this develop into some kind of an estrangement with regard to the tribes in the state. 

AH: You said that there's been some misunderstanding over the agreement in principle. I heard at one point you referred to people who were especially critical of this agreement in principle as "sovereignty hobbyists." What did you mean by that?

MH: That was probably a little more provocative than I meant it to be. 

Here's the reality: Those of us who are in public service here in the state, have a responsibility to keep people safe in their person and property. We deal with those flesh and blood, real life situations every day. And, for there to be criticism about our effort to restore criminal jurisdiction is just irresponsible. We are taking the position that a non-Indian who commits crimes against Indians is not going to exploit the McGirt decision to escape prosecution.

It's our position that when non-Indians commit crimes against Indians, we're going to retain jurisdiction for the time being until a court tells us that we don't have jurisdiction. The Creek are doing their best to staff up with prosecutors and judges and law enforcement. You know, the reservation encompasses somewhere north of 800,000 people. And right now, the Creek police forces  are around 60 (officers). Ten percent of that 800,000 population are likely Native Americans. That's a challenge. But again, we're doing our best to assist the Creek and the federal government to ensure that there's not a public safety, deficit here. But again, our position is it is not an attack on sovereignty to share jurisdiction with the tribe and the federal government. 

AH: Tribal government and citizens I spoke with said that being able to carry out justice in their own (Tribal) courts and through their own legal system is inherently what makes them sovereign nations. Do you agree with that? You also mentioned some other challenges in terms of staffing. But I think the Reservation Protection Committee is trying to deal with some of those issues?

AG Hunter: We're working with them every day to try to deal with those issues. I've had multiple conferences in person and remotely with law enforcement in which I have emphatically asked, recommended, suggested-because I don't have the authority to order that this cross deputization is critical in the near term to ensuring that we don't have some kind of catch and release practice with regard to somebody who identifies as a Native American but has committed a crime that makes him a threat to the public. So, I understand that sentiment. But let's be practical for a second-and I'm going to go back to my thesis statement, nobody can honestly argue that people are safer in an architecture in which you have only the tribe and the federal government and not the state. It's not that we're preempting their authority over crimes, we're sharing it.

AH: Do you think it's too soon to make a decision regarding federal legislation? This is something that will likely have lasting effects when we're just a little over a month into the decision.

AG Hunter: That word's been used to criticize the process, and I reject that out of hand. That there's been some rush for an emergency approach to this and that it's just materialized out of thin air without thoughtful and deliberate review. There's been stops and starts, but for most of the last two years, we have been at the table with the other Five Tribes working through what Oklahoma was going to look like, whatever the decision in McGirt. So, we all had skin in the game, if you will, because we didn't know what the decision was going to be. There is nothing rushed or improperly considered here about this. It's really very simple. There's clarification with regard to civil jurisdiction, both relating to the extent to which tribes can exercise jurisdiction over non-Indians and non-Indian business activities. There is clarification with regard to the extent to which the state can exercise jurisdiction over Native Americans who live outside of trust lands or outside of claims owned by the tribe. And there's a restoration, on a shared basis, of criminal jurisdiction with the Tribe, the federal government and the state. 

AH: What's the way forward in the wake of the McGirt decision?

AG Hunter: I'm hopeful that after there's a thorough review of the ups and downs, we can get back to the table. I mean, you can't work out problems unless you're talking. And that's sort of the challenge that we have now, is that we don't have everybody at the table. I continue to be committed to the process. The Bible tells us, "let us reason together." It was one of LBJ's favorite remarks when he was in a tough situation. So that's my hope, is that we're going to be able to reason together and work through some of the things that I think we need Congress' help on.

---

KOSU depends on donors to keep delivering you the news and information you need. Support this public service by giving monthly as a sustaining member of KOSU or make a one-time donation of your choice. Thank you. Click here to give.