After last week’s landmark Supreme Court decision recognizing the sovereignty of the Five Civilized Tribes on tribal land covering most of eastern Oklahoma, the tribes and the state quickly collaborated on a joint agreement-in-principle urging Congress to pass legislation solidifying cooperation between the state and the tribes in legal matters.
The announcement was made in a press release from the state attorney general’s office. (UPDATE July 17, 3:26 P.M.: Two of the five tribe have said they are not involved in the agreement.)
“Unless Congress adopts it, it doesn’t mean anything,” an attorney familiar with the workings of the tribal justice system said. “If adopted, it ... means return to the status quo: the state would have criminal jurisdiction over all offenses regardless of Indian Status (as has been historic practice) while the tribes would be limited to offenses on trust land (as has been historic practice). It’s not at all what I expected.”
Only Congress can change the tenor of reality after the Supreme Court ruling, which gave tribes absolute jurisdiction over legal proceedings involving Natives inside the borders of the Five Tribes reservations. As it stands now, the state cannot try any cases involving Natives, and previous cases involving Natives are now subject to being overturned due to the court’s ruling.
If Congress adopts and passes the suggested agreement revealed late yesterday, the state would again have full legal authority and jurisdiction over everyone inside the borders of Oklahoma, while the tribes would have specific jurisdiction only over tribal trust lands, not the entire reservations.
Here is the text of the agreement:
With the Supreme Court cases of Sharp v. Murphy and McGirt v. Oklahoma in mind, the Five Tribes and the State of Oklahoma believe intergovernmental cooperation will best serve our shared interests in consistency, predictability, and a mutual respect for sovereign rights and interests. To this end, the Five Tribes and the Oklahoma Office of the Attorney General (OAG) look forward to working with the U.S. Department of Justice and Oklahoma’s congressional delegation in crafting proposed legislation that generally (1) recognizes tribal sovereignty, jurisdiction, and the continued importance of the Five Tribes’ respective boundaries set out in treaties and statutes while (2) also affirming continuity of the State of Oklahoma’s jurisdiction within Eastern Oklahoma but outside of Indian trust or restricted lands (meaning, those lands held in trust by the United States on behalf of the Tribe or an individual Tribal member or citizen, restricted title lands, and Tribal treaty lands that have never been allotted), subject to limitations concerning Tribes and Tribal hunting, fishing, or water rights protected by treaty or other Federal law.
Accordingly, the Five Tribes and OAG today recommend to Oklahoma’s congressional delegation a set of principles that memorialize our shared position. Our goal is to see these principles implemented in appropriate Federal law for purposes of enhancing and clarifying respective State and Tribal jurisdiction, both criminal and civil, without limiting the jurisdiction or immunities of either the State or any Nation. We believe implementation of these principles will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and property rights.
- Criminal Jurisdiction: Presently, the Federal government has law enforcement jurisdiction within the Nations’ treaty territories. With respect to criminal matters, the legislation should:
- Affirm the Five Tribes’ criminal jurisdiction throughout their respective treaty territories over Indian offenders, as well as those non-Indian offenders over which federally-recognized tribes generally have jurisdiction in Indian country, such as domestic abusers covered by the Violence Against Women Reauthorization Act of 2013;
- Provide and affirm the State’s criminal jurisdiction over all offenders throughout that same area, including appropriate and legal mechanisms to address matters concerning existing convictions, with the exception of crimes involving Indians committed on Indian trust or restricted lands; and
- Authorize and direct the U.S. Department of Justice to coordinate with the State and Nations concerning deployment of law enforcement resources and respective authorities under the law.
- Civil Jurisdiction: With respect to civil jurisdiction, including the ability to legislate, regulate, tax, and adjudicate on non-criminal matters, legislation should:
- Affirm the Five Tribes’ civil jurisdiction throughout their respective treaty territories, to be exercised subject to Federal law that generally governs Tribal civil jurisdiction in Indian country. The Five Tribes would accordingly be affirmed in their civil jurisdiction over, for example, matters of self-government and their members but would remain subject to the Federal law that provides, as a general matter, that Tribes do not have civil jurisdiction over non-members outside Indian trust or restricted lands, as described above, except for (1) subject matters for which Federal law specifically grants Tribes jurisdiction; (2) activities of non-members that are part of a consensual relationship, such as contracts, with the Tribe; or (3) conduct of non-members that threatens Tribal self-governance or the economic security, health, or welfare of the Tribe.
- Provide and affirm the State’s civil jurisdiction over all persons throughout the treaty territories, except on Indian trust or restricted lands, but legislation would not grant the State jurisdiction to regulate or tax, directly or indirectly, any Tribe, Tribal official, or entities owned or operated by one of the Five Tribes. Also, the legislation would not affect jurisdiction over Tribal rights relating to hunting, fishing, or water that are protected by Federal law.
- General Provisions: In addition, the legislation should:
- Protect Tribal sovereignty and consistency in law enforcement by affirming that only the Nations will exercise Tribal jurisdiction within their respective treaty territory.
- Allocate resources sufficient to ensure public safety and effective law enforcement.
Each of these components would reaffirm or expand upon the Tribes’ and the State’s sovereign authorities and should not be read as limiting any authority possessed prior to legislation being enacted, including any sovereign immunity.
We recognize that details about how these broad principles will be worked out in particular situations will require further development. Accordingly, we believe the legislation should encourage the State and Nations to resolve any remaining concerns through intergovernmental compacting, while providing also that it does not alter or terminate any existing compact or other intergovernmental agreement between the State and one of the Five Tribes.
UPDATE 9:54 A.M.: Representatives of the executive branches from the Cherokee Nation and the Creek Nation have not yet returned calls for comment.
UPDATE 2:28 P.M.: Tribal members are hopping mad over the announcement via social media.
Longtime Cherokee advocate David Cornsilk did not mince words:
[W]e are at a crossroads similar to the place our ancestors found themselves at the birth of Oklahoma. Our ancestors voted to terminate their government and give everything to the new state. When their descendants realized the mistake and rebuilt our Nation from practically nothing, we dared not dream of this day, but knew in our hearts, our reservation remained intact. Now that the crossroads are in front of us, will we retreat in fear of our own power? Will we opt for the status quo because it’s the evil we know? Will we allow weak and cowering elected officials steal this from us and more importantly from our grandchildren? I say NO!
Cherokee Chief Chuck Hoskins has not returned requests for comment; neither has his press secretary or the press secretary for the Creek Nation.
“Our tribal members are so mad that our Chief after all the time and effort would even consider an agreement with the State of Oklahoma,” one Creek citizen said. “People are saying he needs to be impeached. No we do not have to agree to the State Attorney General and should not. The United States Supreme Court has made a ruling. ... Why ask Congress to legislate authority to the State? No tribe speaks for the Muscogee Nation and the majority of our people will not stand for this turning back to the jurisdiction of the State.”
The Seminole Nation issued an official statement that it is not involved in the agreement, which said it was between the Five Civilized Tribes and the state, of which the Seminoles are one.
The Seminole Nation has not formally approved the agreement-in-principle announced by the other four tribes. To be clear, the Seminole Nation has not been involved with discussions regarding proposed legislation between the other four tribes and the State of Oklahoma. Furthermore, the Seminole Nation has not engaged in any such discussions with the State of Oklahoma, including with the Attorney General, to develop a framework for clarifying respective jurisdictions and to ensure collaboration among tribal, state and federal authorities regarding the administration of justice across Seminole Nation lands.
“Before the Seminole Nation will consider any such framework, the Nation requires respectful and meaningful government-to-government discussions directly with the state. Until such government-to-government discussions occur, and the Nation has an opportunity to fully conduct its own due diligence to any such proposed legislation, the Seminole Nation does not consent to being obligated to an agreement between the other four tribes and the state. As always, the Seminole Nation is proud to be one of the Five Tribes and is eager to have a constructive discussion during this monumental time in our history.”
Chickasaw Nation spokesman Tony Choate said he will have a statement as soon as possible from his tribe.