The U.S. Supreme Court decision in McGirt v. Oklahoma left tribal nations and the state itself with many questions about what law enforcement will look like here, and some Native leaders hope Congress will help create a new framework of the justice system.
In July 2020, the Supreme Court ruled the Muscogee (Creek) Nation’s reservation was never disestablished by Congress, and by extension, the Cherokee Nation’s and all the Five Tribes. The Cherokee Nation has now had state court rulings in 11 out of 11 cases stating that the reasoning applied to McGirt applies to the Cherokee Nation’s reservation as well.
During a roundtable with reporters Thursday, the Cherokee Nation Principal Chief Chuck Hoskin Jr. said the ruling was a monumental win for Oklahoma tribes, but that it’s also created jurisdictional challenges.
Hoskin said the tribe has taken the jurisdictional responsibilities of having a recognized reservation very seriously, and that one of the first duties is to maintain public safety. That’s why the tribe has made an initial investment of $10 million to build up its criminal justice system.
“That runs the range of hiring more marshals for our Marshal Service, which I think is already the best in the business; making sure that our attorney general has a staff that can take on the prosecution role that they have to take on increasingly under McGirt; make sure we have a court system that can provide fair justice for people who come before it; and make sure victims also see justice,” said Hoskin.
Ultimately, the Cherokee Nation estimates its new role in the criminal justice system of the 14 counties over which it has jurisdiction will cost around $35 million a year. Hoskin said the tribe believes the U.S. government should provide assistance, but it will also look for additional funds in its own budget. And that will require some tough decisions.
With the current system in place, the federal government generally prosecutes major crimes committed by or against Natives. One the U.S. can prosecute non-Natives who commit any crime against an Indian, no matter how big or small the crime. Non-Natives who commit victimless crimes or crimes against other non-Natives can only be prosecuted by the state. And crimes committed by Natives against Natives can only be prosecuted by the tribe, unless they are major crimes.
Cherokee Nation Attorney General Sara Hill pointed out how the U.S. has struggled in the past to provide law enforcement on reservations, or the resources to carry out law enforcement, and said tribal leaders are believe there is a better path forward.
“The path forward would be to have compacting where tribes could sit down with the state and determine if there is a better way for law enforcement to work,” said Hill. “Is there a jurisdictional system that makes more sense than the one that’s been piecemealed together by federal court decisions over past 100 years? I believe strongly in the ability of the tribes and the state to work together and get it right.”
Changing the current criminal justice system and jurisdictional responsibilities would require congressional action. The Cherokee Nation would like to be able to enter into compacts with the state of Oklahoma to address jurisdiction issues, but wants to be sure its sovereignty is not undermined.
“In fact, it’s the opposite effect that we think compacting has with McGirt,” said Hoskin. “It makes it a workable, enduring victory for tribes. How we do that, we think, is to have Congress protect 100 percent of McGirt, but to make sure each of the Five Tribes has options to compact, so that we all benefit from that great victory.”
Gov. Kevin Stitt's relationship with tribal nations has been rocky, evidenced by the year-long dispute among him and Native nations over the tribal gaming compact. Stitt asserted the compact expired at the end of 2019, but a federal court ruled in July that it automatically renewed. Hoskin, who has been critical of Stitt’s administration, said he wants to have a good relationship with the governor.
“He was on an island fighting tribes over something that was the biggest win-win that a governor could ever have,” he said. “I hope he’s learned the lesson from that – that tribal compacts are a good thing, and having a cooperative relationship is a good thing.”
Not all the Five Tribes have agreed on whether federal legislation should be passed to curtail jurisdictional problems. But Hoskin believes while some tribes may have a different approach, Congress should carve out an option for each tribe to compact on those issues, if they so desire. He said his conversations with members of Oklahoma’s delegation have been reassuring.
“They don’t believe there should be disestablishment, but I’ve been around long enough – and at least know enough history – to know Congress can do great injury to tribal sovereignty,” Hoskin said. “At times, they’ve done it right on the heels of great victories before federal courts, including the Supreme Court. I also know organizations like the Oklahoma Council of Public Affairs have been pretty explicit that they believe the solution to this Indian problem is the disestablishment of our reservation.”