FRAMEWORK FOR LEGISLATION PROPOSED BY TRIBES AND STATE OF OKLAHOMA
(July 16, 2020) - The Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole Nations announced today an agreement-in-principle to formalize the positions they share with the State of Oklahoma regarding future legislation following the Supreme Court ruling in McGirt v. Oklahoma. With the court’s decision in hand, the Nations now announce the culmination of years of collaborative work among the Five Tribes and the Oklahoma Attorney General to develop a framework for clarifying respective jurisdictions and to ensure collaboration among Tribal, State, and Federal authorities in the interest of effective law enforcement and administration of justice across Tribal lands, as we have done together for generations.
Leaders of the Five Tribes said the Supreme Court’s ruling in McGirt makes clear their long-held position that the boundaries described in the Nations’ treaties with the United States remain intact and continue to mark treaty homelands. Each of the Nations’ constitutions affirm these boundaries, and each Nation has and will continue to exercise its sovereign powers within those boundaries. The Five Tribes joined Oklahoma Attorney General Mike Hunter in presenting to Oklahoma’s congressional delegation an agreement-in-principle to facilitate enactment of appropriate Federal law in response to McGirt. The Tribal leaders indicated they recognize more work will be necessary as they work on legislation, but they look forward to continued intergovernmental collaboration and cooperation to complete these important efforts.
Muscogee (Creek) Nation Principal Chief David Hill stated “The Supreme Court has affirmed what Mvskoke people have always known: we are a sovereign Nation with a sovereign territory. While the ruling does leave questions for us to answer as we move forward, the Muscogee (Creek) Nation is confident that our past work with state and federal agencies has prepared us for this significant moment in our history. Tribal Nations have successfully collaborated with law enforcement for years in the communities we share, and this ruling only strengthens our ability to work together for the betterment of public safety for all Oklahomans.”
Cherokee Nation Principal Chief Chuck Hoskin Jr. stated “Cherokees have always fought to protect our tribal sovereignty and homelands and strengthen our communities. We have long held that Cherokee Nation has a reservation, rooted in our treaties, as the Supreme Court of the United States has now affirmed. This proposed legislation will cement our reservation
boundaries and the broad tribal jurisdiction the Supreme Court recognized in the McGirt decision. We will continue to work with the State of Oklahoma and our federal partners to ensure the safety of the public.”
Chickasaw Nation Governor Bill Anoatubby stated “We celebrate the Supreme Court’s affirmation of the Creek Nation’s treaties. The Chickasaw Nation will always stand firm to protect its sovereignty and rights to self-government while also protecting the common interests we share as Oklahomans. Understanding that the Court did not attempt to answer every question suggested by the case, we are pleased to join with our fellow Five Tribes and Oklahoma Attorney General Mike Hunter to announce a framework that will guide our joint effort to secure appropriate Federal legislation. We know we are stronger when the Tribes and State work together. With that in mind, we appreciate the productive engagement and professionalism of all who participated in this constructive process. Working together, we will serve the best interest of our people.”
Choctaw Nation Chief Gary Batton stated “The Choctaw people have been governing our land base and exercising sovereignty since the 1830s. The McGirt decision was a victory for tribes as it relates to our original treaty boundaries and sovereignty as well as criminal jurisdiction. We support legislation that protects our sovereign rights to self-governance with limitations on state authority in tribal affairs. I am proud to be Choctaw and to work with other tribal and state leaders for a resolution that pursues what is good for tribal members and the communities in which they live.”
Seminole Nation Chief Greg Chilcoat stated “The Seminole Nation is pleased with the Supreme Court’s ruling upholding the Muscogee (Creek) Nation’s jurisdictional boundaries. We understand our relationship with the State is important, and that we are better together than we are apart. Through our relationship, we deeply understand the sovereign rights of both the State and Nation. As we work to move forward together, this will only strengthen how we both serve our communities and our people.”
Oklahoma Attorney General Mike Hunter stated “Although there are many more details to be ironed out in the near future, we believe this agreement regarding civil and criminal jurisdiction is the best path forward for protecting the public and promoting continued economic growth in Oklahoma. My commitment to our tribal partners is to work together to forge common ground on the issues brought to light by this case. Oklahoma’s tribal nations are a fundamental part of Oklahoma’s culture, economy, politics and governance.
The relationship between the tribes and my office is based on trust and mutual respect. And that synergism has been essential to the successful formation of this important agreement.”
The Tribal leaders said they believed their release today with the Oklahoma Attorney General of their agreement-in-principle confirmed the faith expressed by U.S. Attorneys Timothy J. Downing, Brian J. Kuester and R. Trent Shores last week following the SCOTUS ruling. “As Oklahoma’s United States Attorneys, we are confident tribal, state, local, and federal law enforcement will work together to continue providing exceptional public safety under this new ruling by the United States Supreme Court.”
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.
1. Criminal Jurisdiction: Presently, the Federal government has law enforcement
jurisdiction within the Nations’ treaty territories. With respect to criminal matters, the legislation should:
a. 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;
b. 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
c. 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.
2. Civil Jurisdiction: With respect to civil jurisdiction, including the ability to legislate,
regulate, tax, and adjudicate on non-criminal matters, legislation should:
a. 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.
b. 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.
3. General Provisions: In addition, the legislation should:
a. Protect Tribal sovereignty and consistency in law enforcement by affirming that
only the Nations will exercise Tribal jurisdiction within their respective treaty territory.
b. Allocate resources sufficient to ensure public safety and effective law
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.