U.S. Attorney General Visits Oklahoma To Discuss Effects Of SCOTUS Ruling

Oct 2, 2020

United States Attorney General William Barr visited the Cherokee Nation Capital in Tahlequah, Okla. on Wednesday to talk about some of the challenges and partnerships in the wake of the landmark McGirt v. Oklahoma decision that was handed down in July.

Representatives from the Cherokee Nation and the U.S. Attorney's Office for the Northern District of Oklahoma and the Eastern District of Oklahoma were there. But in the wake of a ruling that affects jurisdiction in a large portion of the state, some question why representatives from other tribes weren’t there and if Barr plans to schedule more meetings in the future.

Barr announced that $40 million will be made available to Oklahoma to help expand tribal criminal justice efforts. The Cherokee Nation will receive $7 million of that money to expand their criminal justice system.

The grant money made available to Oklahoma were ones applied for last spring, before the Supreme Court made its ruling on the McGirt case. There is indication that more money would open up to help expand tribal criminal justice systems.

According to the Justice Department, more than $103 million was awarded to the Coordinated Tribal Assistance Solicitation (CTAS) program to enhance law enforcement and tribal justice practices, expand victim services and sustain crime prevention and intervention efforts. Absentee Shawnee, Choctaw Nation, Citizen Potawatomi Nation, Comanche Nation and the Delaware Tribe of Indians received money under the CTAS programs.

Effects on the Five Tribes

The landmark Supreme Court ruling declared that Muscogee (Creek) Nation is still a reservation as defined by an 1866 treaty. Practically speaking, this means crimes committed by Native Americans inside the boundaries of the reservation must be prosecuted by tribal courts or federal courts.

Until the ruling, such crimes were being prosecuted in state courts.

It is widely believed the ruling extends to Cherokee Nation, Chickasaw Nation, Seminole Nation and Choctaw Nation because they all have similar treaties with the United States Government. That is expected to be settled later this year, but right now, the ruling only applies directly to Muscogee (Creek) Nation.

"I don't think there was ever any question in my mind or in the minds of other people who represent the Five Tribes that this is not just about the Muscogee (Creek) Nation, but this would the impact all of the Five Tribes," said Cherokee Nation Attorney General Sara Hill.

Muscogee (Creek) Nation wasn't at Wednesday’s meeting with Barr. Neither were the Choctaw Nation, Seminole Nation or Chickasaw Nation.

"Unfortunately, this is a huge missed opportunity from Creek Nation's perspective," said Jonodev Chaudhuri, the Ambassador for the Muscogee (Creek) Nation.

Chaudhuri said they indirectly learned of the meeting Tuesday.

The U.S. Attorney's Office of the Northern District said the meeting was arranged quickly late last week. They also confirmed that Barr spoke with Muscogee (Creek) Principal Chief David Hill and invited him to Washington D.C. for a face-to-face meeting.

"There are certainly matters that we would love to discuss with him regarding our efforts to collaborate with our sovereign partners to ensure public safety, but also to take advantage of opportunities across the board, in terms of economic development," said Chaudhuri.

It's unclear whether or not Barr will be returning to Oklahoma.

Chickasaw Governor Bill Anoatubby released this statement:

"We are encouraged that Attorney General Barr took time to visit the Cherokee Nation following the Supreme Court ruling in McGirt v. Oklahoma. It is important for Tribal, state and federal leaders to work together to address the challenges we face moving forward."

Federal Legislation to Address Jurisdictional Issues?

At the meeting, Barr spoke about possible legislation to address what some view as jurisdictional issues surrounding the McGirt v. Oklahoma decision.

"I know McGirt is on everyone's mind in Washington. The Department of Justice is working closely with the Oklahoma delegation to try to come up with a legislative approach that is supported by all sides," said Barr.

Muscogee (Creek) Nation Principal Chief David Hill opposes any legislation that addresses the McGirt decision, and Chaudhuri says they would have made that clear if they were at the meeting with Barr.

"I am convinced we would make every point possible about why what's needed right now is a spirit of cooperation to address public safety issues rather than a rush to legislation," said Chaudheri.

An Increase in Cases

In the meantime, Barr said, resources were needed to help with the increased number of cases the U.S. Attorney’s Office has had to prosecute in the last few months.

Since August, Barr says that U.S. Attorney Trent Shores has prosecuted 114 cases. In a typical year, they would only prosecute 230 cases for the entire year.

Cherokee Nation Principal Chief Chuck Hoskin Jr. expressed the need for support. He praised the Supreme Court ruling saying it only makes the country stronger but that it presents new challenges.

"As a result of the McGirt decision, defendants throughout the reservations of the Five Tribes who've been charged with crimes in state court are asking to be retried in federal court or tribal court," said Hoskin Jr.

Cherokee Nation Attorney General Sara Hill is currently tracking 200 cases that may need to be retried in federal or tribal court. Currently, Hill is tracking three kinds of cases.

First, there are cases that have been remanded from the Oklahoma Court of Criminal Appeals back to the district court. Those are cases where the Oklahoma Court of Criminal Appeals is asking the lower courts to make these very specific determinations about whether or not the crime occurred in any country where either the victim or the defendant is Native American.

Next, there are cases where the issue of jurisdiction is being raised for the first time.

And, finally, there are post-conviction cases, where people are raising issues after they've been convicted.

Hill said she's confident Cherokee Nation can handle the increase in caseload. Money from the Department of Justice is helpful, she said.

"We knew that this was coming," said Hill. "So we haven't wasted any time. We've been busy expanding since that moment."

Hoskin Jr. said they will continue to seek additional funds and resources to expand tribal court systems, the attorney general's office and marshal services.

Muscogee (Creek) Nation is also expanding their criminal justice system. It was announced last month they were receiving $500,000 to support their court system and hire more Lighthorse police officers.

Chaudhuri said they will continue to seek the funding they need to meet demands and that their priority is public safety.

"Keep in mind that the number of cases overall haven't changed since McGirt came out," said Chaudhuri. "What has changed is that for the very small category of crimes that McGirt addresses, where there was one jurisdiction who could prosecute and be tried by the state, now there are two tribal nations in this case, Muscogee (Creek) Nation and the United States."

Both the Cherokee Nation and the Muscogee (Creek) Nation say they've had good partnerships with the U.S. Attorney’s Office in the Northern and Eastern Districts.

Chaudhuri believes that a system where the state, the federal government and the tribes working together on the issue of criminal justice is one that makes the public stronger.

He cites the case of Timmy Jack, a Muscogee (Creek) man who voluntarily surrendered himself after being convicted of murder.

"That shows the social fiber that we operate under. You know, that law and order issues were issues about connection and kinship and culture that were so strong."

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