Law & Principles

Stitt calls for tribal compacts on McGirt issues

January 22, 2021

Ray Carter

Gov. Kevin Stitt has called on tribal leaders to begin compact negotiations to address the many issues created by the U.S. Supreme Court’s McGirt v. Oklahoma ruling, which declared the Muscogee (Creek) Nation’s reservation was never disestablished.

“As the commonly elected Governor for all 4 million Oklahomans, it is critically important that the State of Oklahoma and the leaders of Oklahoma’s tribes impacted by the McGirt decision begin negotiations, in earnest, to resolve the potential ramifications of this ruling,” Stitt said. “Under Oklahoma law, which is consistent with Oklahoma’s Constitution, the Governor of Oklahoma has the authority to negotiate and enter into cooperative agreements on behalf of the state with Oklahoma’s Native American tribes. Oklahoma law also allows me to designate a lead negotiator for the state, and for this role I am designating Ryan Leonard, Special Counsel for Native American Affairs.”

In McGirt v. Oklahoma, a case centered on the appeal of a convicted child rapist, the U.S. Supreme Court held that the Muscogee (Creek) Nation’s reservation was never disestablished. While the ruling applied only to Creek land and questions of criminal prosecution under the federal Major Crimes Act, its precedent and basis are expected to result in application to numerous other issues, such as taxation and regulation, and also include the land of four other tribes—the Choctaw, Chickasaw, Cherokee, and Seminole nations. The combined territory of those five tribes includes most of eastern Oklahoma, about 43 percent of Oklahoma’s total land mass, which is home to approximately 1.9 million residents.

“As all who have read the Supreme Court’s opinion know, the McGirt decision was limited to matters of criminal jurisdiction,” Stitt said. “In that regard, ensuring the public safety of all Oklahomans and providing certainty and adequate resources for the men and women in law enforcement in eastern Oklahoma is of paramount importance. As things stand today, crimes are going unpunished, and convicted criminals are seeking to be set free. We can’t allow this to happen.”

Stitt previously created the Oklahoma Commission on Cooperative Sovereignty to explore the repercussions of the McGirt case and, as part of that effort, ordered all state agencies to provide the commission with analyses on how the ruling could impact their areas of focus.

In their analyses, law enforcement agencies warned of many major challenges for public safety across Oklahoma due to McGirt.

The District Attorneys Council warned, “Under this new jurisdictional framework, the State is without authority to prosecute Indian defendants and protect Indian victims.”

The State Board of Dentistry and Oklahoma State Board of Veterinary Medical Examiners both warned the McGirt ruling may allow drug traffickers to evade punishment in much of eastern Oklahoma, as well as bogus practitioners.

The District Attorneys Council and Oklahoma State Bureau of Narcotics and Dangerous Drug Control both warned that law enforcement officials will be reluctant to arrest criminals in many cases because of potential personal liability should they subsequently be accused of unknowingly but illegally arresting a tribal citizen.

Law-enforcement agencies noted that most tribal governments lack a tribal court system designed to address many crimes and do not have long-term jail facilities.

Officials warned that increased illegal activity in eastern Oklahoma will likely be the result of the law-enforcement restrictions and uncertainty currently created by McGirt.

“The last thing we want as a state is for multinational drug cartels to more effectively prey upon the addictions of so many Oklahomans by setting up shop in what will effectively be a safe-haven for drug traffickers,” the Oklahoma State Bureau of Narcotics and Dangerous Drug Control analysis warned.

Stitt said compact negotiations should also include discussion of other issues that potentially loom on the horizon.

“Some have also suggested that McGirt may potentially be expanded to civil issues that could negatively impact the state’s tax base, as well as undermine certain regulatory and zoning authority in eastern Oklahoma,” Stitt said. “As both an Oklahoman and a citizen of the Cherokee Nation, my response to those suggestions is that Oklahoma’s future success is dependent upon our common values of certainty, fairness and unity being embraced by all. Working together is how we make Oklahoma a Top Ten state.”

In October, the Oklahoma Commission on Cooperative Sovereignty issued a report that endorsed five broad principles its members said should guide state-tribal efforts in the years ahead. Those principles include providing equality under the law and representation by commonly elected state officials; requiring that all Oklahomans pay for the “common services provided by the State to its residents”; consistent application of the law to all citizens regardless of heritage or other classifications (other than on tribal trust-owned land); maintenance of a level playing field for all businesses regardless of physical location or ownership; and respect for tribal sovereignty.

Those recommendations were not embraced by all tribal leaders.

In November, Cherokee Nation Principal Chief Chuck Hoskin Jr. wrote that it had “become clear that Gov. Stitt’s vision for Oklahoma does not include a role for tribes.” Hoskin criticized the work of the Oklahoma Commission on Cooperative Sovereignty, saying the group “has called for taking away tribal authority over our own land” and used “anti-Indian language reminiscent of the 19th century to argue for dispossessing tribes of our homelands.”

A potential sticking point in McGirt compact negotiations may be what tribal governments are willing to offer in exchange for the state of Oklahoma assuming major, potentially expensive state-level law-enforcement functions that may now be considered the effective responsibility of those tribal governments in most of eastern Oklahoma.

Tribal governments have gone to court in recent years to oppose efforts to renegotiation past compacts on casino gaming, which have proven highly lucrative to tribal governments due primarily to very low state rates for the exclusive right to operate casinos in Oklahoma.