Saturday, July 18, 2020

OCPA column: Responding to "Indian country" ruling

Responding to “Indian country” ruling
By Jonathan Small

The U.S. Supreme Court ruling in McGirt v. Oklahoma has created much legal uncertainty throughout Oklahoma. Rather than have a conglomerate of state and tribal officials hash out various agreements—potentially numerous agreements—it would be far better if Congress resolved this problem.

The court’s actual ruling was narrow: Creek tribal members, on territory once set aside for the Creek tribe, can only be prosecuted by federal, not state, authorities for serious crimes. But the ruling is expected to apply to several other tribes and territory throughout eastern Oklahoma, including Tulsa. Determining if an offender should be prosecuted in federal or state court will depend on the heritage of the offender, the heritage of the victim, and the location of the crime. In situations where an offender is an enrolled member of one tribe and the victim is a member of another, things could become even more complicated.

The state’s attorney general says he has reached an agreement with five of Oklahoma’s largest American Indian tribes to address these issues, but the announced agreement raises more questions than it answers and instead of eliminating some of the challenges citizens want addressed, appears to lock them in place.

However, Governor Kevin Stitt, by law and longstanding practice, is the primary negotiator on behalf of our state when state-tribal agreements are constructed. The governor won office with the goal of representing all Oklahomans, including those who are members of our state’s proud Native American tribes. He should act with the help of the attorney general―not the other way around.

While Stitt should be the point man for proposed state-tribal agreements, Congress should also address the issues raised by the court.

The court found that land reserved for the Muscogee (Creek) Nation since the 19th century remains what the court’s majority opinion referred to as “Indian country” for the purposes of the federal Major Crimes Act because Congress never formally abolished the Creek Reservation. As a result, a man convicted in Oklahoma state court in 1997 for the rape of a four-year-old girl must now be retried in federal court.

Congress could resolve this problem by passing a law that formally recognizes the on-the-ground reality that has existed in Oklahoma since statehood and formally abolish tribal reservations in this state. That would do nothing to reduce tribal sovereignty as it existed in Oklahoma prior to the court’s decision this month. And it would allow for efficient administration of justice when murder or rape involves an enrolled tribal member in some capacity.

If Congress does not act, the potential exists that prosecution of major crimes in Oklahoma will soon be guided by multiple agreements that could draw additional legal challenges and ultimately deprive crime victims of justice for years or decades to come.

Jonathan Small serves as president of the Oklahoma Council of Public Affairs.