Oklahoma Attorney General Mike Hunter’s attempt to broker an agreement between the state and its most powerful American Indian tribes concerning issues arising from the U.S. Supreme Court’s landmark McGirt decision appeared to meet with mixed response on Wednesday.
Cherokee Chief Chuck Hoskin Jr. and Oklahoma Speaker of the House Charles McCall, R-Atoka, expressed strong support for a proposal Hunter outlined in a letter to state and tribal leaders and to Oklahoma’s congressional delegation, but Muscogee (Creek) Nation Chief David Hill, whose tribe was the subject of the McGirt case, said he sees no need for intervention.
Gov. Kevin Stitt, who is feuding with the tribes over several issues, seemed cool to Hunter’s ideas.
“Federal legislation will unquestionably be needed to address the multiple important issues left unsettled for our state by the McGirt case,” Stitt said in a written statement.
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“However, criminal jurisdiction is just one of many areas where unprecedented uncertainty now exists in Oklahoma. One set of rules is essential to becoming a Top Ten state and ensuring social and economic fairness for all 4 million Oklahomans.”
Hunter’s letter recommends the congressional delegation introduce federal legislation that would allow the tribes and the state to compact on criminal justice issues and for the state and tribes to work out compacts on tax issues raised by McGirt.
The case involved an accused child molester named Jimcy McGirt, who sued to have his conviction in state court overturned, arguing he should have been tried in federal court because he is a Seminole citizen and the crimes occurred in the former Muscogee (Creek) Nation.
The Supreme Court agreed with McGirt and ruled the Muscogee (Creek) Nation was never properly disestablished. The decision applied only to criminal cases in the former Muscogee (Creek) Nation, but legal experts believe it will soon extend to the rest of the Five Tribes — the Cherokees, Choctaws, Chickasaws and Seminoles.
In his letter, Hunter said the decision has caused a huge increase in the number of criminal cases formerly tried in state court moving to federal prosecutors. Hunter said the number of federal criminal cases in Muskogee’s Eastern District of Oklahoma has gone from three in 2017 to 571 in the past few months.
Hunter said the decision has also raised many questions related to the collection of state taxes in the former Indian Nations.
“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,” Hunter said in a news release. “Congress must act to give the state and the tribes the authority to enter into these agreements. We already have the authority to compact on other important issues, such as child welfare, water rights and gaming, all of which were authorized by federal legislation. We now need that same type of legislation for an equally important issue: ensuring the safety and security of Oklahomans.”
Hunter said the Muscogee (Creek) Nation recently reached an agreement to continue Oklahoma Department of Human Services eligibility to some 800 Indian children within the reservation boundaries.
The tribe’s chief, however, issued a terse statement effectively dismissing Hunter’s suggestions.
“We have yet to examine the details of (Hunter’s) latest request for federal legislation responding to the McGirt decision, but we have still not found any compelling evidence demonstrating such a federal response is necessary,” Hill said.
“At first look, it appears that what AG Hunter is proposing already exists under federal law. Public Law 280 allows for the transfer of subject matter jurisdiction to the state. But the historical record shows that tribes that have voluntarily relinquished their authority have found themselves trapped and unable to ever recover their sovereignty,” Hill said.
Hoskin, though, said he applauds Hunter’s effort and that the proposals are in line with some of his own thoughts on the issue.
“I have been guided by three main principles relating to McGirt,” Hoskin said in a written statement.
“First, that Cherokee Nation’s reservation be recognized and our sovereignty preserved not merely in the immediate wake of the McGirt decision, but for all time.
“Second, that federal legislation enhancing the authority of Cherokee Nation and other governments to work together to resolve criminal jurisdiction-related issues under McGirt is necessary.
“And, third, Cherokee Nation cannot and will not sit back while Congress considers the long-term impact of McGirt and simply pretend that Congress has no authority in this matter. To do so would be to hand our fate to others who would destroy our reservation and undermine our sovereignty.”
The McGirt decision reaffirmed the tribes’ sovereignty but also raised the possibility of congressional action to snuff it out. For that reason the tribes have, for the most part, tread lightly.
Nevertheless, a tentative agreement several months ago came unwound when some tribal members, especially Creeks, objected to surrendering any authority.
Chickasaw Gov. Bill Anoatubby, the longest-serving senior official among the Five Tribes, issued a statement cautiously supportive of Hunter’s proposal.
“In August, we communicated to the Oklahoma (congressional) delegation that, if it is to act, Congress should build on our history of successful intergovernmental cooperation and provide narrow Federal authorization to empower Tribes and the State to compact on criminal jurisdiction,” Anoatubby said. “We commend Attorney General Hunter supporting this approach.”
“We believe if Congress is to act, it should act consistent with what has worked, and what works is tribal self-determination and intergovernmental cooperation. Oklahoma and the Chickasaw Nation are well able to work together, and we look forward to the prospect of working toward new compacts that build on our strengths and provide for the public’s safety,” he said.
State Senate President Pro Tem Greg Treat, R-Edmond, had no comment, but McCall said the proposal “is a positive, logical approach involving all parties that provides opportunities for good government-to-government solutions that we appreciate the attorney general recommending.”
U.S. Sens. Jim Inhofe and James Lankford issued cautious statements that said, in essence, they continue to listen to everybody and work with everybody. First District Congressman Kevin Hern said the same. Fourth District Congressman Tom Cole, a member of the Chickasaw Nation, said he remains confident “that there is a path forward that respects and protects state and tribal sovereignty and ensures the safety of all Oklahomans.”
Sept. 30 video: U.S. Attorney General William Barr gives press briefing at Cherokee Nation headquarters in Tahlequah
Attorney General William Barr met Wednesday with Cherokee Nation Principal Chief Chuck Hoskin and others to discuss the response to the McGirt Supreme Court decision and to announce allocations of tribal grant funds.
