State, tribes ask Congress for help with jurisdiction
As eastern Oklahoma’s transformation to Indian reservations took a leap forward last week, some state and tribal leaders renewed their call for Congress to allow them to forge agreements for prosecuting criminal cases.
Oklahoma Attorney General Mike Hunter said recent discussions with members of Oklahoma’s congressional delegation “give me optimism and confidence that they’re going to move as quickly as this situation requires” to introduce legislation.
“The Cherokee and Chickasaw (leaders) are asking and supporting authority from Congress to compact with the state to share criminal jurisdiction,” Hunter said in an interview. “I’m hopeful that happens in the next few months and we look forward to working with the federal government and the tribes.”
Hunter’s comments followed the release on Thursday of two decisions by the Oklahoma Court of Criminal Appeals that formally extended the U.S. Supreme Court’s ruling in the McGirt case to the Cherokee and Chickasaw reservations.
The decisions, once they are fully in effect, means the tribes and the federal government will have jurisdiction over crimes involving Indians on the two reservations; that is currently the situation on the Creek reservation. It also will mean past state convictions in crimes involving Indians on the reservations likely will be overturned.
Rulings from the Oklahoma Court of Criminal Appeals extending the McGirt decision to the Choctaw and Seminole reservations are expected soon. Those will complete the process begun when the Supreme Court ruled last July that the Muscogee (Creek) Reservation had never been disestablished and that Jimcy McGirt, a convicted child rapist, should have been tried in federal — rather than state — court because he is Native American and the crime occurred on the Creek reservation.
Because of the shared history of the Five Tribes — their forced relocation to Indian Territory and the similarities of their treaties with the U.S. government — it was widely anticipated the McGirt decision would apply to the Cherokee, Chickasaw, Choctaw and Seminole Nations.
Cherokee Nation Principal Chief Chuck Hoskin Jr. and Chickasaw Nation Gov. Bill Anoatubby, whose governments have been beefing up law enforcement and court systems in preparation for the decisions that came down Thursday, have been calling for Congress to allow Oklahoma prosecutors to share criminal jurisdiction.
Hoskin said the Cherokee Nation believes “Congress must authorize compacting that preserves 100% of McGirt and give tribes and the state increased flexibility and the option to cooperate to a greater degree on criminal matters.”
Anoatubby said, “We will continue the work we began long ago with the Oklahoma Attorney General and other Tribal sovereigns to secure narrow federal law authorization to form durable compacts with Oklahoma on matters of criminal subject matter jurisdiction.
“Recognizing our manifest shared interest in ensuring public safety for all, we continue to welcome the State of Oklahoma to partner with us fully in this effort.”
Sen. Jim Inhofe, R-Tulsa, who will be a key player in moving legislation, said in a statement to The Oklahoman, “Talks are ongoing as we move forward and continue to work through the implications of McGirt v. Oklahoma. I am working with state officials, the tribes and the delegation to find solutions that ensure criminals are prosecuted and brought to justice. Our number one priority continues to be the safety of each and every Oklahoman.”
Agreements would be optional
Hunter, Hoskin and Anoatubby believe that giving the state concurrent criminal jurisdiction in the reservations would take advantage of systems already in place and avoid burdens on governments unaccustomed to the caseloads they soon will face in Oklahoma.
In general, under federal law governing crime in Indian Country, U.S. attorney offices prosecute the major crimes and tribes mostly prosecute misdemeanors.
Taking on all crimes involving Indians in the reservations would require major investments in law enforcement, court and penal systems. The U.S. attorney’s office in the Creek reservation, which includes Tulsa, enlisted help from around the country last year to handle the dozens of cases filed by state inmates appealing their convictions and the new cases involving Indians.
Hunter said state, federal and tribal governments already work together in Oklahoma on investigations and prosecutions and could continue to do so if Congress explicitly allows it on the reservations.
“I enjoy excellent relationships with the attorneys general in each of the Five Tribes and I can’t imagine that we wouldn’t be able to quickly work out divisions of labor with respect to cases that we’re going to take, cases that they’re going to take and cases that the federal government will take,” Hunter said.
The Choctaws, Creeks and Seminoles have not endorsed the idea of concurrent jurisdiction on criminal matters. And the Biden administration has not taken a position on the matter; the new attorney general, Merrick Garland, was just sworn in last week, and the next Interior secretary has not been confirmed.
In the immediate wake of the McGirt decision, there was hope that the state and Five Tribes could unite around a proposal on jurisdiction to present to the Oklahoma congressional delegation. An effort to do so failed. But Hoskin and Anoatubby made clear last year that they wanted the option to compact with the state whether the other tribes did or not.
Hunter said compacts between tribes and the state on criminal jurisdiction would be optional under the approach being pitched to the Oklahoma congressional delegation, and he questioned why anyone would oppose giving tribes the discretion to negotiate for themselves.
Attention to victims
While they look toward the future of criminal justice in the reservations, tribal leaders and prosecutors are also mindful of the impact the court rulings will have on victims of crime and their families.
District Attorney Jack Thorp, whose jurisdiction includes four counties in eastern Oklahoma, said Thursday, “My heart is broken and my prayers are focused on the victims and their families who will most adversely be affected by this ruling.
“They must continue to endure the criminal justice system and in many cases restart the process with a different prosecuting entity.
“It is likely that in many cases, defendants serving prison sentences for crimes involving homicide, rape, molestation, robbery and other violent crimes could be released back into the community while they await charging decisions by the Cherokee Nation and/or the United States Attorney’s office — if they can be retried at all due to the statute of limitations and other potential evidentiary issues.”
The tribes have been sensitive to that fallout as well. The Cherokee Nation has rushed to refile cases that will be dismissed by state courts, and the tribe said it will “continue to speak with the victims and families involved in these cases to ensure they have the full support and resources they need.”
Cherokee Nation Attorney General Sara Hill said the statute of limitations had expired in the case that was the source of the Court of Criminal Appeals decision last week regarding the Cherokee reservation. In that case, Travis Hogner was sentenced in state court to 50 years for a felony possession of a firearm; he had only served three years. He can’t be charged in federal or tribal court.
“Cases such as these are precisely why we continue to call on Congress to expand compacting options to allow us to compact with the state of Oklahoma on criminal law matters,” Hill said.
“Only Congress has the authority to give tribes additional legal options to protect their citizens without imposing options on those tribes who do not wish to compact, and without undoing any of our sovereignty or the McGirt ruling.”
The Chickasaw Nation ruling last week involved Oklahoma death row inmate Shaun Michael Bosse, who killed Katrina Griffin and her two children in McClain County. Griffin and her children were members of the Chickasaw Nation and they were killed within the Chickasaw reservation, meaning Bosse should not have been tried in state court, the state appeals court ruled.
Though the federal government is expected to prosecute Bosse, it is not clear whether Bosse will face the death penalty. At a hearing last fall, District Attorney Greg Mashburn said Griffin’s family wanted the state to retain jurisdiction in the case.
After the Court of Criminal Appeals ruled otherwise on Thursday, Anoatubby said, “Our hearts remain steadfast with the family this man victimized. We are in communication with the United States Attorney and appreciate his assurance that federal charges will be timely filed. We will continue our efforts to see justice done for the victim’s family.”