OKLAHOMA CITY – Although public attention has been focused on the tribal reservations, “What makes McGirt controversial is the Major Crimes Act, which was enacted in the late 1800s when the feds were arguing with the states over who would have jurisdiction,” said Stephen Greetham, senior counsel for the Chickasaw Nation.
Prior to McGirt, “The tribes were treated as a by-stander,” Greetham said. Now, though, “The law is going to matter.”
According to Jonodev Chaudhuri, a Muscogee (Creek) Nation attorney, the number or rate of crimes “hasn’t gone up,” since McGirt. “There are just more prosecutors and different social workers going after bad actors.”
“There’s no new crime, just a new set of rules,” Greetham said.
The McGirt decision, Chaudhuri said, “is as historic as Brown v. Board of Education,” the 1954 U.S. Supreme Court decision which decreed that racially segregated schools were unconstitutional.
Chaudhuri isn’t moved by state Attorney General Mike Hunter’s assertion that hundreds, if not thousands, of Native Americans intend to challenge their criminal convictions in state courts. The
Supreme Court of the United States, in its McGirt decision in July, arrested the “unlawful attempts by the State of Oklahoma to exert jurisdiction on Creek land,” Chaudhuri said recently.
The Supreme Court “didn’t buy some of the ‘sky is falling’ claims” expressed in legal briefs submitted by the oil and gas industry and agricultural interests, he said. “‘Criminals will run loose, and businesses will flee eastern Oklahoma’ is what the state claimed” would happen if the Supreme Court accepted McGirt’s position, Chaudhuri said.
Native American tribes “predate the United States,” Greetham said during a webinar hosted by the Oklahoma Pro Chapter of the Society of Professional Journalists.
And the Creek Nation’s court system “predates that of Oklahoma,” Chaudhuri said. Furthermore, the Creek Nation “has invested millions [of dollars] in its justice system,” he added. The tribe has spent $2.1 million on its justice system and $1.2 million for its civil service, child care and social workers, Chaudhuri said. “An investment of more than $3 million is no small matter.”
What Oklahoma is confronting today are merely “transition issues,” Chaudhuri said.
AG STRESSES COOPERATION TO RESOLVE McGIRT ISSUES
In an October 21 letter, Hunter said he wants to work with “tribal leaders, state leaders, local officials, and members of Congress” to address McGirt-related issues “in a manner that encourages and builds on federal-state-tribal cooperation...”
In a statement issued later that day, Bill Anoatubby, Governor of the Chickasaw Nation, said, “We thank Attorney General Hunter for recognizing the value of intergovernmental cooperation. Over several decades, Tribes and Oklahoma have worked together on a government-to-government basis and built a rich fabric of compacts that have served all of us well.”
In a joint statement, the Five Tribes declared, “We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.
“The Nations and the State are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights. We will continue our work, confident that we can accomplish more together than any of us could alone.”
COMPACTS REQUIRE CONGRESSIONAL ACTION
Hunter further said that he recommends state leaders “begin developing a process for compacting with the Five Tribes concerning civil issues that have arisen after McGirt, as well as compacting on the criminal jurisdiction that I hope Congress authorizes.”
“We communicated to the Oklahoma 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.
The tribes contend that Congress “should act consistent with what has worked, and what works is Tribal self-determination and inter-governmental cooperation,” he said.
“The Chickasaws can compact on gaming and on cross-deputization of law enforcement officers. And each
of the Five Tribes did a concurrent jurisdiction agreement on the Indian Child Welfare Act, because the Act authorizes those types of agreements,” Greetham said.
But without authorization from Congress, the tribes cannot compact with the State of Oklahoma to determine which court will have jurisdiction in a criminal case, he said. “That’s federal subject-matter jurisdiction.”
Any proposal that would require the tribes to give up jurisdiction in criminal matters involving tribal members is “a nonstarter,” Greetham said.
Congress “laid out a framework” for mutually acceptable compacts between the State of Oklahoma and Native American tribes governing gaming, he said. “That’s what we want in criminal matters, as well.”