Law & Principles
Governor begins work on state-tribal jurisdictional issues
July 20, 2020
To address state-tribal jurisdictional issues created by a recent U.S. Supreme Court ruling, Gov. Kevin Stitt announced Monday the formation of the Oklahoma Commission on Cooperative Sovereignty. The group will study and recommend changes to state or federal law required due to recent U.S. Supreme Court decisions in McGirt v. Oklahoma and Sharp v. Murphy.
“We know that there is a lot of unpredictability right now,” Stitt said. “We are committed to working with all Oklahomans, Tribal and non-Tribal, to create a practical and sustainable path forward. This commission is the first step.”
In its recent ruling in McGirt v. Oklahoma, the U.S. Supreme Court found certain crimes involving American Indians on tribal land in Oklahoma must be prosecuted in federal, not state, court. While the decision directly affected land held by the Muscogee (Creek) Nation, it is expected to equally apply to the Cherokee, Chickasaw, Choctaw, and Seminole nations. The cumulative effect of the ruling could impact nearly half the state of Oklahoma, where 1.8 million people reside, including the city of Tulsa.
Because the McGirt decision declared the Muscogee (Creek) Nation’s reservation boundaries were never formally disestablished and that territory remains “Indian country,” the decision is expected to also expand tribal government authority in a wide range of areas, including regulations and taxation.
Public statements indicate tribal leaders hold that view.
“We are looking at ways to expand our sovereignty with the McGirt decision while balancing meeting the needs of our citizens and the communities in which they reside,” Chief Gary Batton of the Choctaw Nation of Oklahoma said in a July 17 statement. “Our commitment is to strengthen not weaken our tribal hard-earned rights to self-government.”
Stitt’s announcement comes only days after Attorney General Mike Hunter claimed to have separately reached an agreement with leaders of the five tribal nations on proposed federal legislation to address McGirt’s fallout, only to have the alleged agreement begin falling apart almost immediately when two of the five tribes distanced themselves from it.
Seminole Nation Chief Greg P. Chilcoat said his tribe “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.”
Muscogee (Creek) Nation Principal Chief David Hill separately called Hunter’s proposal a “framework in regards to the Five Tribes and not to the Muscogee (Creek) Nation specifically.” Hill said any such agreement would be “temporary” and address only “the immediate transitional period as we address inter-governmental cooperation agreements consistent with the court’s decision …” He also said federal legislation is not necessary and does not have the tribe’s support.
The validity of any agreement reached between the attorney general and tribes is legally precarious since the Oklahoma Constitution and state law grant the governor, not the attorney general, the authority to negotiate and enter into cooperative agreements on behalf of the state with federally recognized Indian tribal governments.
Notably, the agreement announced by Hunter not only addressed jurisdiction in the area of criminal law, but also called for federal law to affirm tribes’ civil jurisdiction in their reservation boundaries including “the ability to legislate, regulate, tax, and adjudicate on non-criminal matters.”
Hunter’s agreement would have granted tribes civil jurisdiction over non-tribal members when the “conduct” of non-members “threatens Tribal self-governance or the economic security, health, or welfare of the Tribe.”
Stitt indicated his commission will take a more comprehensive and thorough approach to McGirt issues than the prior discussions held by the attorney general with tribal officials.
“While I appreciate the enthusiasm to rush into agreements, it’s vital that our next steps be thoughtful and informed,” Stitt said. “The Commission provides all Oklahomans with a central platform to help determine what those next steps might be.”
Under the executive order Stitt issued that creates the commission, state agencies, boards, or commissions impacted by the McGirt decision must submit a Notice of Potential Impact by Aug. 28, and a more detailed Report of Potential Impact by Sept. 30.
Larry Nichols, co-founder of Oklahoma City-based Devon Energy, will serve chair of the commission. Other members will include former U.S. Sen. Don Nickles, former U.S. Rep. J.C. Watts, state Sen. Julie Daniels, state Rep. Mark Lepak, Alan Armstrong, Brent Bolen, Suzie Brewster, oilman Harold Hamm, and Joe Robson.
Additional members may also include a representative of the Oklahoma Attorney General’s office, a member of the District Attorneys Council, and representatives of Oklahoma’s federally recognized Indian Tribes.
The commission will also hear from and engage with leaders from various sectors of the Oklahoma economy, local communities, and the public.
Leaders of the Cherokee, Chickasaw, and Choctaw Nations responded to Stitt’s announcement with a joint statement that suggested they preferred working with Hunter, despite the attorney general’s lack of meaningful authority.
“None of the leaders of the Five Tribes support eroding our sovereignty or turning back the recognition of our reservation achieved through McGirt,” leaders of the three tribal nations stated. “We feel that the leaders of each tribe understand that we must be engaged with the state Attorney General and members of Oklahoma’s Congressional delegation if we are to have a meaningful voice in any legislative process that moves forward as a result of McGirt.”
However, the three tribal nation’s leaders suggested the previous announcement with Hunter’s office was rushed.
“Last week’s statement of principles began a discussion with state and federal stakeholders,” the statement said. “Upon further reflection, and after obtaining feedback from the people we represent, leaders of the Cherokee, Chickasaw, and Choctaw Nations agree that more discussion is warranted with stakeholders and the general public.”