The leaders of the Cherokee and Chickasaw Nations on Monday announced their support for federal legislation that would permit the two tribes to compact with the state on criminal jurisdictional matters in light of the U.S. Supreme Court’s McGirt decision.
Cherokee Nation Principal Chief Chuck Hoskin Jr. and Chickasaw Nation Gov. Bill Anoatubby said in a joint statement that they would support “narrow federal legislation that would authorize tribal-state compacting on criminal subject matter jurisdiction.”
Oklahoma’s 4th District congressman, U.S. Rep. Tom Cole, has agreed to sponsor the legislation, Hoskin said during a virtual news briefing on the matter.
Hoskin said the legislation would “allow the Cherokee Nation and Chickasaw Nation to do what we presently cannot do,” referring to permitting the two tribes to compact on criminal jurisdictional matters.
A spokesperson for Cole’s office indicated that the congressman would issue a statement on the issue Tuesday.
Oklahoma Attorney General Mike Hunter, through a spokesman, issued tentative support for federal legislation aimed at addressing McGirt jurisdictional issues.
“We continue to support the concept of federal legislation to allow compacting to address issues arising from the McGirt decision,” Hunter’s communications director, Alex Gerszewski, said in a written statement. “Like every piece of legislation, our support depends on the language and whether or not it fixes current problems without creating new ones.
“Our office will continue to engage with the tribes, state stakeholders, Congress and the administration to ensure that goal is met.”
State, federal and tribal justice systems in Tulsa and a large portion of eastern Oklahoma have been upended by the Supreme Court’s McGirt decision, released last July.
The ruling upheld a lower court ruling that determined that the state of Oklahoma does not have jurisdiction to prosecute major crimes that involve an American Indian and within the historical reservation boundaries of the Muscogee Nation. The ruling was later expanded by a state appellate court to include the Cherokee, Chickasaw, Choctaw and Seminole nations.
The ruling has resulted in the state of Oklahoma’s dismissal of hundreds of criminal cases while federal and tribal officials attempt to refile the dismissed charges and pick up new ones as they occur.
The tribal officials say their support for any compacting legislation will be in keeping with their “core principle of self-determination and be designed to empower tribal-state problem solving with respect to their shared mission of the public’s safety and effective law enforcement.”
Hoskin said in a statement: “As Chief, I will always protect our tribal sovereignty and 100% of the recognition of our reservation that was affirmed in the historic McGirt decision and by the state of Oklahoma. This legislation will empower our tribe to compact with the state on the prosecution of certain criminal cases, so that we can ensure criminals can receive proper justice, without compromising on our sovereignty.”
Anoatubby said the Chickasaw Nation would also work to support the compacting legislation.
“We support federal legislation that is based on the core principle of self-determination, clearing the way for us to work with the state as we navigate the best path forward,” Anoatubby said in a statement.
Word of legislation to allow the two tribes to compact on criminal jurisdictional matters follows a failed effort just after the McGirt decision was announced.
That effort, which would have included all five tribes, collapsed almost as soon as Hunter announced it after officials with the Muscogee Nation and Seminole Nation of Oklahoma announced that they could not support it.
Asked during the press briefing why the other three tribes were not included in the proposed legislation, Hoskins said the other tribes made it clear when they rejected Hunter’s effort that they were not interested in federal legislation to permit compacting.
Both Hoskin and Cherokee Nation Attorney General Sara Hill both voiced support for the concept of the state of Oklahoma assuming jurisdiction on criminal matters when the suspect is a nontribal member.
State officials have been unsuccessfully arguing in some McGirt-related state Court of Criminal Appeals cases that the state of Oklahoma has shared jurisdiction on criminal matters, with the state able to bring charges when the accused is a nontribal member and the victim is American Indian.
Except in rare cases, tribal officials are unable to bring charges against a non-American Indian, leaving those cases in the post-McGirt world to be prosecuted by federal officials.
The proposed bill’s language would also address criminal penalties meted out by the tribes.
Under current federal law, tribes may sentence someone to no more than three years in prison, with the ability to “stack” up to three terms so that they run consecutively for a total maximum of nine years in prison, Hill said.
The bill would also provide additional federal funding for the tribes to take on the additional cases.
The Cherokee Nation has filed more than 700 criminal cases in tribal court since the McGirt ruling — more in less than a year than the tribe had filed in the past decade, Hill said. However, since the tribe is unable to prosecute most instances of crimes where the accused is a nontribal member, the proposed legislation would have little affect on the tribal court’s load, Hill said.
Rather, many cases that are currently being prosecuted in federal court due to McGirt could be prosecuted again in state court under the bill.
Hoskin said the legislation provides for the option of compacting so that nontribal members who commit crimes on the Cherokee reservation, provided the tribe can’t prosecute it, can receive “proper justice” through the state’s court system.
“For those small number of crimes that stretch beyond statute of limitations, compacting can also help ensure these perpetrators face the justice that victims and their families deserve,” Hoskin said.
Tribal officials said the bill would permit each tribe to negotiate on its own with the state regarding criminal jurisdiction.
The law would not affect tribal jurisdiction on Indian lands, such as tribal-owned properties and those individually owned by tribal members that are kept in trust by the U.S. government.
“This legislation gives Cherokee Nation the option to compact, should we choose to do so, and compacting only happens with approval of the Council of the Cherokee Nation,” Hoskin continued.
“On behalf of the Cherokee Nation, I look forward to working with our congressional leaders and the state to pass this legislation and enhance our options.”