Two attorneys general, one for the state of Oklahoma, the other for the Cherokee Nation, agree on at least a few things resulting from a landmark U.S. Supreme Court decision that said Congress never disestablished the Muscogee (Creek) Nation’s reservation.
Those aspects: 1) The court decision did not affect individual property rights; 2) Congress will be needed to close jurisdictional gaps created by the decision; and 3) both the state and the tribes need to work together as Congress considers closing those gaps.
Those issues and more were featured during another Tulsa World “Let’s Talk” virtual town hall program.
Moderated by Tulsa World Editorial Pages Editor Wayne Greene, this episode in the series of discussions focused on McGirt v. Oklahoma, a case that turned on whether the Muscogee (Creek) Nation reservation boundaries dating back to 1866 had ever been disestablished by Congress.
Oklahoma Attorney General Mike Hunter and Cherokee Nation Attorney General Sara Hill offered their perspectives on the court ruling and answered questions posed by Greene during the “Let’s Talk” event, held Tuesday via internet conferencing software.
The Supreme Court, in a 5-4 decision issued July 9, found that Congress had never specifically disestablished the Muscogee (Creek) Nation’s reservation despite the state’s claim that it did so indirectly with the creation of Oklahoma as a state.
The immediate result of the ruling has caused the state to dismiss some existing criminal cases in which one of the parties was an American Indian and the crime occurred in the Muscogee (Creek) Nation reservation, which has an 11-county footprint and includes much of the city of Tulsa.
The dismissed cases have been refiled in U.S. District Court.
The ruling has also caused local and state governments to cede jurisdiction in some criminal cases that have occurred since the ruling to the federal government for prosecution.
Hunter said he was disappointed with the “flash cut” method used by the five justices in the Supreme Court majority who made the decision.
“So 113 years of jurisdiction, with the stroke of a pen, was absolutely set aside by Justice (Neil) Gorsuch, who wrote the opinion,” Hunter said. “And I think that is irresponsible.”
Hunter faulted the majority for not including a transition period of some sort, as the Supreme Court has in some other cases.
Hunter continued: “The biggest challenge both the state and specifically the Muscogee (Creek) have: How do we quickly adjust jurisdiction? How do we ensure there is no criminal justice slippage? — because the impact of the decision is the state loses criminal jurisdiction over any crimes that involve a Native American in the Muscogee (Creek) historic reservation.”
Hill, meanwhile, said that while the McGirt decision doesn’t immediately affect criminal cases within the jurisdictions of the other four major tribes in the area, including the Cherokee Nation, she believes that it eventually will, because the Creek, Cherokee, Chickasaw, Choctaw and Seminole nations share similar treaty and legal histories.
Hill said the ruling will likely affect other areas of tribal law, including the Indian Child Welfare Act, which provides for exclusive tribal jurisdiction in adoptions involving American Indian children.
Asked their views on whether the McGirt decision affected property rights within the Muscogee (Creek) Nation reservation, Hunter and Hill said they believed it did not.
“My view of that is the property rights are unaffected,” including oil and gas leases, Hunter said.
Hill agreed that the decision had more to do with “governmental authority and jurisdiction.”
Hunter indicated that he still held out hope that all five tribes and the state could come together on a proposal to Congress aimed at resolving criminal jurisdictional issues created by the decision.
The Seminole and Muscogee (Creek) nations both have said they oppose a tentative proposal to Congress unveiled by Hunter after the McGirt decision. One key aspect of the proposal would have returned criminal jurisdiction in major crimes to the state.
Hill acknowledged that the decision created some jurisdiction gaps that Congress will need to close.
“To that end we are willing to work together. We’re willing to go to Congress to get what we need to close those jurisdictional gaps,” Hill said.
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