Tribes Favor Legislation for Optional State Compacts in McGirt

Jan 17, 2021

The Chickasaw Nation and Cherokee Nation said Thursday the challenges presented by their expanded criminal boundaries post-McGirt v. Oklahoma are so great they are advocating for the state of Oklahoma to retain jurisdiction over some of those felony of cases.

The U.S. Supreme Court’s McGirt decision substantially changed how felony crimes can be prosecuted throughout eastern Oklahoma. Now, crimes like murder, kidnapping and rape must be prosecuted by the federal government. But the United States has struggled to provide adequate law enforcement and other resources on reservations to prosecute those crimes. And, the maximum sentence tribes can give for felonies is only three years.

That's why leaders from the Cherokee Nation and Chickasaw Nation said at a reporters roundtable Thursday that a compact with the state is needed to make sure no case falls through the cracks.

Cherokee Nation Principal Chief Chuck Hoskin Jr. and Chickasaw Nation Governor Bill Anoatubby attended the roundtable via Zoom. Sara Hill, Cherokee Nation's Attorney General and Stephen Greetham, Chickasaw Nation's senior council were also on hand to field questions. They say any compact agreement would have to be done through legislation and are confident it won't erode any sovereignty they gained through the hard fought Supreme Court case.

COMPACT OR NO COMPACT?

The idea for compacting was put forth last fall by Oklahoma Attorney General Mike Hunter. He worked with Anoatubby and Hoskin Jr. on the proposal and says legislation is needed.

“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,” said Hunter, who cited the growing number of cases being brought forth for post-conviction relief.

But the Muscogee (Creek) Nation disagrees. After the proposal came out, they released a statement saying that federal legislation wasn't necessary.

"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," read a statement from Jason Salsman when the proposal was put forth. "But the historical record shows that tribes that have voluntarily relinquished their authority have found themselves trapped and unable to ever recover their sovereignty."

"We have to make sure that McGirt is not undermined by any sort of compacting. In fact, it's the opposite effect that we think compacting has on McGirt. It makes it a workable, enduring victory for tribes," said Hoskin Jr.

Sara Hill, the Attorney General for the Cherokee Nation agrees. She thinks the system in place for the Tribe is flawed and hamstrung by federal rules put in place by the Major Crimes Act, which was passed in 1885 and gave the federal government the right to prosecute crimes taking place on Indian land.

"Is there a jurisdictional system that makes more sense than the one that has been piecemeal together by federal court decisions over the past hundred years?," Hill asked during the reporter roundtable.

"I believe strongly in the ability of the tribes in the state to work together and get it right," she said, expressing her support for compacts between the Tribes and the state.

MILLIONS ARE NEEDED

It's not just this piecemeal system that isn't working. An effective criminal justice system can be expensive.

During the roundtable, Hoskin Jr. of the Cherokee Nation said around $35 million a year is needed for their criminal justice system.

"I think when it comes to criminal justice, it's a high responsibility," said Hoskin Jr. "And if it means us making some difficult decisions about our own budget, we'll do it."

Hoskin Jr. thinks the federal government should provide more assistance. Last fall, during a visit with former U.S. Attorney General William Barr, Hoskin Jr. announced that the Cherokee Nation would receive $10 million to fortify their criminal justice system.

EROSION OF SOVEREIGNTY?

After the McGirt decision, all of the Five Tribes and the Attorney General's office released an "Agreement in Principle" that laid out how they would handle post-conviction relief, prosecution of future cases and how to handle ICWA.

The Seminole Nation and Muscogee (Creek) Nation withdrew their support after backlash from citizens who felt that the agreement would lead to disestablishment and erosion of sovereignty.

That's criticism Hoskin Jr. is aware of. Last fall, the Oklahoma Council on Public Affairs put out a statement calling for disestablishment and federal legislation to do so.

Hoskin Jr. has spoken to members of Oklahoma's congressional delegation about it.

"I can tell you that the conversations I've had with members of our delegation are reassuring that they don't believe there should be disestablishment," said Hoskin Jr. "But, I've been around long enough and at least know enough history to know that Congress can do great injury to tribal sovereignty."

Both Tribal leaders were asked if they would advocate or opt for the death penalty for crimes.

The Chickasaw Nation said they have not made a decision yet, but may need to make one soon. A judge ruled last fall that Shaun Bosse's crime took place within the Chickasaw Nation's reservation boundaries. Bosse was convicted of murdering Katrina Griffin and her two children. The family were Chickasaw citizens. A ruling that will decide where Bosse will be tried is expected soon.

Both leaders say they are watching and waiting to see what happens with the incoming Biden administration. Especially Biden's pick for Attorney General, Merrick Garland, who will have a big impact on how criminal justice is handled in Indian Country.

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