Northeastern State University hosted a virtual discussion on the implications of the McGirt v. Oklahoma Supreme Court decision Thursday, with four experts in Native affairs offering their thoughts on the ruling.
Among those speaking were Assistant Federal Public Defender Patti Ghezzi, Dean Emeritus of the University of Arkansas School of Law Stacy Leeds, Muscogee (Creek) Nation Ambassador Jonodev Chaudhuri, and Cherokee Nation Attorney General Sara Hill.
The Supreme Court held that Congress never disestablished the Muscogee (Creek) Nation's reservation, which many legal experts and tribes believe extends to all of Five Civilized Tribes.
"The decision that came down a few weeks ago in McGirt v. Oklahoma was a profoundly important decision not just for Muscogee (Creek) Nation, but I think for Indian Country across the board," said Chaudhuri. "Far beyond any legal ramifications of the decision, what it meant to us was that we are not erased in our own homes. Beyond any legal analysis, that's the major, major takeaway after a history of deprivations and deceit. The Supreme Court stuck to the law, applied the law, and made the right decision."
Sara Barnett, director of the Center for Tribal Studies, asked the panel members if they thought the court's ruling on the Creek Nation's reservation applied to other tribes. Hill said she believes the ruling applies broadly to other tribes, because if Congress intended to dissolve or disestablish the reservation, it would have shown a clear expression of its intent to do so, and she said it has not for the Cherokee Nation's reservation.
"We're not waiting around for some court to tell us that our reservation is intact," said Hill. "We've always believed our reservation is intact."
Ghezzi said it should be applied to other tribes, but predicted court battles on the horizon.
"[We] should not assume that both Gov. [Kevin] Stitt and Attorney General [Mike] Hunter will not do anything to limit McGirt to McGirt," she said."The attorney general has already filed a response in a Chickasaw reservation case. They are not conceding that Chickasaw reservation continues to exist. If the court determines that they're going to hear it, they're asking it to be remanded to a state trial judge for full argument."
Ghezzi added that the history of state trial judges on tribal issues has been "at the least dismissive, and at the most hostile."
The panelists were asked what types of cases they think should be shifted to federal or tribal courts. Currently, the state has jurisdiction in Indian Country when non-Indians commit crimes against non-Indians, which is most of the criminal cases in the state. Ghezzi said she feels any case where either the victim or the defendant is Native should be in tribal or federal court, although she said AG Hunter has taken a stance on that issue.
"The attorney general has just recently taken the position in a capital past conviction case that the state of Oklahoma has concurrent jurisdiction with the federal government on those crimes, where it's the victim who is Indian and not the defendant," she said. "That's a novel and new issue that they've raised and a way to have more jurisdiction than any of us thought they would seek."
Tribal justice systems are limited to what penalties they can impose on individuals. Hill said it depends on the situation as to what court a person should be tried in.
"There's the Major Crimes Act where if they've committed a major crime, the federal jurisdiction is preferred by the tribes, because they can incarcerate those people for much longer sentences, which are often well-deserved for very serious crimes that occur on the reservation," said Hill. "For those less serious crimes where the penalties the tribes are capable of imposing on people are appropriate, the tribal prosecution of those crimes is typically more preferred."
Shortly after the Supreme Court's ruling, the Five Civilized Tribes and the attorney general announced an agreement in principle that was be used as a framework for federal legislation regarding the relationship between tribes and the state. Subsequently, the Muscogee (Creek) Nation announced the agreement did not reflect its position and did not support it.
Chaudhuri said the Creek Nation unequivocally opposes any legislation that in any way diminishes the court's decision, and that the concrete needs to set before rushing into any legislation.
"Instead, the focus should be on intergovernmental coordination, collaboration, and allowing the sovereign respect of Creek Nation, as well as other governmental entities, to flourish and to play out," he said. "You first role up your sleeves and figure things out together, before running to Congress to solve anything."
Hill said there are practical issues that arise from the decision, and it is the job of tribal, state and federal governments to solve them.
"I think it's necessary to have a framework to cooperate with the state and cooperate with the federal government when that's necessary," said Hill. "Certainly from the perspective of my tribe, my chief has said it's better to be at the table than on the menu when it comes to dealing with Congress and dealing with other outside interests."
Both Hill and Chaudhuri shared their respects for each other's tribes. However, it does not appear the Creek Nation will be in favor of any federal legislation regarding the relationship between tribes and the state anytime soon.
"If there's any legislation proposed, we will fight it tooth and nail, and I think Indian Country understands the importance of fighting any diminishment of this historic win for Indian Country, but also for the American public," said Chaudhuri.