Tribes, State Lay out Agreement on Jurisdictional Issues in the Wake of SCOTUS Ruling on McGirt Case

Jul 16, 2020

Credit Joe Ravi / CC-BY-SA 3.0

The Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations and the State of Oklahoma released an agreement on Thursday to help the state’s congressional delegation write legislation that would settle jurisdictional questions in the wake of last week’s McGirt decision.

The U.S. Supreme Court ruled that much of eastern Oklahoma remains an Indian reservation. With the ruling, the state lost much of its power to enforce laws against tribal citizens on reservation lands.

When it comes to criminal cases, the plan is to essentially restore the state’s ability to prosecute cases while not changing the tribes’.

"For instance, if I am in Catoosa and I run a red light, the officer could give me a ticket, and the State of Oklahoma could prosecute me for that violation even though I’m an Indian and even though I was on the Cherokee Nation’s reservation when that offense occurred," said Cherokee Nation Attorney General Sara Hill. "Now the tribe, the tribal officer, of course, could also prosecute me for that in the Cherokee Nation tribal court because the tribe has jurisdiction as well. It’s a shared jurisdictional structure."

Oklahoma Attorney General Mike Hunter said while that matter of jurisdiction can be settled, there’s still the question of how past convictions will be dealt with, as some defendants can contend the state lacked authority to prosecute them.

"Individuals will need to do sort of a gut check if you will whether or not finishing their term in a state facility makes more sense than being retried in federal court," Hunter said.

The agreement between the state and the tribes also lays out principles for clarifying civil jurisdiction, though McGirt dealt only with criminal matters.

The state would be provided civil jurisdiction except to regulate or tax tribes, tribal officials or tribal business entities. The state could also not affect tribal hunting, fishing or water rights.

The agreement-in-principle would not give the state any jurisdiction on Indian trust or restricted lands.