Update: The Cherokee Nation and Chickasaw Nation Criminal Jurisdiction Compacting Act of 2021 was filed by Rep. Tom Cole on Tuesday. Read the entire bill as introduced here. This article was also updated at 4:15 p.m. Tuesday May 11, 2021 to include comments from the Choctaw Nation.
The Cherokee and Chickasaw nations have expressed support for federal legislation expected to be introduced in Congress on Tuesday that would allow the tribes to compact with the state of Oklahoma to prosecute some criminal cases in Indian country.
The measure, expected to be introduced by U.S. Rep. Tom Cole would allow the state and the two tribes to enter into agreements that would give the state concurrent jurisdiction with the federal government to prosecute non-Indians who commit crimes against tribal members within the tribal boundaries.
Criminal jurisdiction in the eastern part of the state has shifted dramatically since the U.S. Supreme Court handed down its landmark McGirt decision in July 2020 that held the reservation boundaries of the Muscogee Nation were never disestablished. The ruling has since been extended this spring to the other four of the so-called “Five Civilized Tribes” — the Seminole Nation, the Choctaw Nation, the Cherokee Nation and the Chickasaw Nation.
Because federal law states that federal and tribal prosecutors have jurisdiction over crimes committed in Indian Country where the perpetrator or victim is a tribal member, scores of appeals for previously-decided cases have been re-filed, and state prosecutors have sent hundreds of new criminal cases to the federal government for prosecution.
Under U.S. law, only the federal government has jurisdiction over non-Indians who commit crimes against tribal members in Indian Country. But federal prosecutors in Oklahoma have been overwhelmed by the number of cases their offices have received and have prioritized prosecutions of cases where death or great bodily harm was involved.
Doug Horn, senior litigation counsel for the U.S. Attorney’s Office, told The Frontier that U.S. Attorney General Merrick Garland had visited in-person with U.S. Attorneys from all three Oklahoma judicial districts in April, and sought suggestions for how to handle the massive spike in case loads.
“We indicted 90 cases last week,” Horn said in late April. “There have been years historically that the Eastern District of Oklahoma didn’t do that many cases in a year. I can assure you the 90 cases that were done in that year were not the murders and child molestations and the egregious cases this 90 represents.”
Meanwhile, lower-level offenses by non-Indians against tribal citizens, such as second-degree burglary or auto theft, have mostly gone unprosecuted.
“With the resources we have now, we’re dealing with those cases that are most egregious,” Horn said.
Federal prosecutors have been forced to put some criminal prosecutions on hold until more staff and funding become available, he said.
“We’re having to prioritize where our resources are going, and if that means we’re dealing with a child sexual abuse or child murder or first degree murder and there’s a second degree burglary going to the tribe rather than to us right now, that’s the reality we’re having to live with,” he said.
Though the legislation will allow the Chickasaws and Cherokees to compact with the state to allow county district attorneys to prosecute non-Indian on Indian crime, the other three tribes thus far affected by the McGirt decision have previously expressed hesitance to involve Congress, and have suggested the federal government send more resources to the U.S. Attorneys offices to deal with the lack of prosecution resources.
The Muscogee Nation said in a statement that the tribe respects the other tribes’ willingness to seek legislation, but also cautioned that, if not done properly, such legislation could pave the way for the federal government to force other tribes into similar compacting arrangements.
“We support every nation’s sovereignty and right to seek their own specific legislation affecting only them,” the statement said. “We are reviewing the broad wording of this proposed act to understand its implications for not only the Muscogee Nation but all of Indian country. It is imperative that any bill that may be crafted, is done so in a way that does not create a perverse incentive for the federal government to withhold funding and force tribes into compacts against their will.”
In a statement to The Frontier on Tuesday afternoon, Choctaw Nation Chief Gary Batton said he is “strongly opposed” to the legislation.
“Legislative pathways that cede tribal jurisdiction to states have historically proven to be a detriment to tribal sovereignty,” Batton said. “I believe this legislation is unnecessary. If Congress wants to assist Oklahoma tribes on criminal jurisdiction, I would encourage funding its trust responsibility for public safety and judicial systems in Indian Country. If any legislation is considered, it should be aimed at strengthening tribal sovereignty.”
A Seminole Nation spokesman did not return a request for comment.
Cole’s office said it would issue a statement on the proposed legislation Tuesday, and Gov. Kevin Stitt, who has had an often-icy relationship with the five tribes over the McGirt decision and other issues, declined to comment Monday.
Cherokee Nation Principal Chief Chuck Hoskin Jr. said though the legislation as introduced would only allow his tribe and the Chickasaws to compact with the state to allow for concurrent jurisdiction. Neither tribe is opposed to other tribes signing on later, he said.
“I certainly think it is open for other tribes to evaluate,” Hoskin said. “It could be there’s enough appeal for them to be interested in it for their tribal lands. As chief of the Cherokee Nation, I don’t assume to know what is best for another tribe, but I do respect the other tribes and I respect their position to date, which is they don’t see a role for the Congress.”
Hoskin said he too would like to see the federal government send more resources to federal prosecutors and criminal justice agencies in Indian Country, but the track record of that happening is thin.
“The next time that the United States fully funds programs that affect Indian Country will be the first time they’ve done it,” Hoskin said.
“I cannot as Chief of the Cherokee Nation assume that those resources will be there. I can guarantee I’ll fight for them,” he said.
Hoskin said that even if the legislation passes, there is no guarantee that the state or tribe would come to an agreement on compact language.
Chickasaw Nation Gov. Bill Anoatubby said in a statement that the tribe is ready to work with the federal government and state to ensure public safety and that justice is done.
“We appreciate the hard work of the Oklahoma delegation as they work with us, the State and members of the community on criminal jurisdiction matters post the Supreme Court’s McGirt decision,” Anoatubby said. “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. We look forward to working with our delegation to secure the passage of such legislation.”
The Cherokee Nation covers all or part of 14 counties in northeastern Oklahoma, while the Chickasaw Nation covers all or part of 13 counties in south-central Oklahoma. The Chickasaw Nation estimates it has filed more than 200 cases since the McGirt ruling was extended to it, while the Cherokee Nation estimates it has filed more than 700 criminal cases.
The proposed legislation would also direct federal funding to the two tribes’ criminal justice systems, Hoskin said.
Meanwhile, Oklahoma Attorney General Mike Hunter has filed an application for the U.S. Supreme Court to hear the Oklahoma Court of Criminal Appeals case that extended the McGirt ruling to the Chickasaw Nation. Hunter argues in the application that the state already has concurrent jurisdiction with the federal government to prosecute non-Indians who commit crimes against tribal citizens in Indian Country.
Cherokee Nation Attorney General Sara Hill called that a “novel legal argument.”
“There is not a lot of basis for that in federal law,” Hill told The Frontier.
Hoskin and Hill said the legislation does not diminish tribal sovereignty or self-determination, but rather increases it by enshrining it in legislation and “unshackling” the two tribes to work with the state to address criminal justice issues.
“If you look at the history of law enforcement in Indian Country and you look at the problems that have been over and over again throughout Indian Country that we have observed,” Hill said, “there’s reason to think there are some better options perhaps available to a tribe that is unshackled from these rules, that they could create options for themselves that would work better than the rules they’re stuck with.”