Name: As questions mount, prospects dim for federal bill on Oklahoma reservations
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As questions mount, prospects dim for federal bill on Oklahoma reservations

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Chris Casteel Prospects have dimmed for federal legislation this year to clarify Oklahoma’s criminal and civil jurisdiction in the wake of a momentous U.S. Supreme Court decision that could soon mean nearly half the state is Indian reservation land.Sen. Jim Inhofe, the most senior member of the state’s congressional delegation, said last week that it would be “very difficult” to get a bill passed this year addressing the myriad issues — including taxation and regulation — raised by the court’s ruling that the Muscogee (Creek) Nation reservation was never terminated.Inhofe said many interested parties were “anxious to get something done” but that there was no agreement on a way forward among the major tribes that are expected to have their reservations restored because of the July 9 decision.A coalition of Indian organizations, including the National Congress of American Indians, sent a letter to Inhofe late last week warning against a rush toward “destructive legislation.”“We fear that any such bill could irreparably undermine the sovereignty of tribal nations across the country,” the letter states.The organizations said they had heard Oklahoma congressional staff members were working on legislation “to abrogate the tribal sovereignty upheld by the Supreme Court.”Inhofe responded on Friday, "I appreciate the letter from the tribal organizations, but their concerns are misplaced. As I’ve said from day one: The entire delegation agrees and has said that some action will need to be taken in response to McGirt. We don’t know yet what that will be."That’s why the delegation is working together with the tribes and all Oklahomans to understand the scope and impact of the McGirt decision. I have personally spoken to each tribal leader to convey that.”The Oklahoma congressional delegation issued a joint statement last month saying it looked forward to “working with the Tribal Nations, the state, and all stakeholders, to develop a legislative framework that honors tribal sovereignty and gives consistency and predictability to all those living and working in Oklahoma.”The lawmakers have been mostly mum about work on legislation, deferring to state and tribal officials. Inhofe’s office solicited input from a range of Oklahoma interests and set an Aug. 21 deadline for submission. But, without agreement among the Five Tribes, Oklahoma lawmakers are unlikely to propose a bill.Some tribes, including the Creeks and Cherokees, have formed their own commissions to study the implications of the decision.Cherokee Nation Principal Chief Chuck Hoskin Jr. said last week, “This court decision is the largest victory for Indian Country in our lifetime, but also represents new challenges for the Cherokee Nation, so we are preparing vigorously for what we anticipate is coming. I look forward to a detailed report from the commission in the coming weeks.”Five TribesThe Supreme Court decision was limited to criminal jurisdiction in the Creek reservation, with the court ruling that Jimcy McGirt should have been tried in federal court for sex crimes involving a 4-year-old girl rather than state court, because he is an enrolled tribal member and his alleged crimes were committed on the reservation, which was never disestablished by Congress before Oklahoma statehood in 1907.Under federal law, major crimes involving Indians on tribal land are prosecuted by federal authorities.The McGirt decision is expected to apply to the Cherokees, Chickasaws, Choctaws and Seminoles — the other members of the Five Tribes, who were forcibly relocated in the 1830s from their land in southeastern states to what is now Oklahoma. Their Oklahoma reservations also were not explicitly disestablished by Congress.The Cherokee and Chickasaw Nations have tendered briefs in separate cases seeking recognition that their reservations still exist.The Five Tribes’ reservations span about 19 million acres in eastern and southern Oklahoma and include 1.8 million people.Already, the McGirt decision has led to numerous appeals from state inmates claiming they should have been tried in federal court, while the FBI and federal prosecutors within the Creek reservation are handling new criminal cases that were previously handled by local police and state prosecutors.U.S. Attorney Trent Shores, in the state’s Northern District, based in Tulsa, said last week that prosecutors from other states had pitched in to help with a “tidal wave” of cases.Chris Wilson, first assistant U.S. attorney in the Eastern District, based in Muskogee, said, “We have had a significant number of referral of cases that were pending in state court and a number of motions for dismissal. We’ve seen a significant increase in case referral.”The U.S. attorney’s office in the Eastern District has filed federal complaints against McGirt and Oklahoma death row inmate Patrick Murphy, whose appeal to the U.S. Supreme Court was essentially the same as McGirt’s. The federal government took custody of McGirt last week.The tribes also are dealing with new demands as their courts accept more cases.Hoskin said the Cherokee Nation must expand its “Marshal Service, Attorney General’s Office, detention and probation budgets, our tribal court system and other areas, while staying engaged in any congressional response to legislation that protects our tribal sovereignty, keeps this historic ruling intact and ensures criminals that commit violent acts on Cherokee Nation reservation lands do not go free.”The Oklahoma Court of Criminal Appeals last week, addressing the case of another death row inmate seeking release, ordered the McClain County District Court to determine whether the three victims of Shaun Michael Bosse were Indians and whether the murders were committed on Indian land.Oklahoma Attorney General Mike Hunter wants the state appeals court to set a template for inmates claiming the McGirt case applies to them, forcing them to prove Indian blood or enrollment and that the crimes occurred on reservation land.A frameworkHunter had worked with Five Tribes’ officials for months before the McGirt decision came down to establish a framework for federal legislation in case half the state was effectively declared to be reservation land.The intent was to develop principles that could be drafted into legislation by the Oklahoma congressional delegation. Under the U.S. Constitution, Congress has the authority to make legal changes affecting jurisdiction on Indian land.It appeared the week after the McGirt decision that an outline had been agreed upon by Hunter and the Five Tribes, but Seminole Nation Chief Greg P. Chilcoat said he had never signed off and Muscogee (Creek) Nation Chief David Hill withdrew support after a backlash from tribal members.Hunter said recently that discussions about a framework for legislation were in a “cooling off” period.“What we don’t want is the uncertainty being prompted by the case because there’s really no reservation like this in the country, where you have Indians and non-Indians ... doing business with each other, living across the street from each other in a way we’ve existed for 113 years,” Hunter said.“The goal was to address uncertainty. And if there’s a magnetic north of the agreement with regard to civil jurisdiction, it’s just to ensure that we don’t have uncertainty going forward with regard to how the state and the tribes cooperate and collaborate.“I wouldn’t say the agreement has fallen through. We’ve definitely had some setbacks with regard to some people withdrawing from the discussions.”Gov. Kevin Stitt formed his own commission last month, composed largely of oil and gas and farming interests and lobbyists to assess the implications of the McGirt decision.“I want tribes to be successful but not at the expense of nontribal businesses,” Stitt said in an interview with the Oklahoma Farm Bureau this month.“Over the long haul, if we don’t have a level playing field, if we don’t understand what the rules are, we will not have nontribal businesses growing and establishing and expanding in eastern Oklahoma.”Stitt is an enrolled member of the Cherokee Nation.Stitt told the Farm Bureau that numerous civil questions had arisen, including the reach of state tax policy. The state won’t have jurisdiction to tax tribal members who earn their income on a reservation, he said.“So now you have two kind of classes of citizens — one that pays income tax and one that doesn’t,” Stitt said.“As you know, the state government — our roads, our bridges, our education system, our health care — everything is dependent on tax revenue.”It’s conceivable, he said, that tribal members could seek about $200 million in refunds of taxes paid in the last three years.The agreement in principle announced by Hunter and Five Tribes leaders last month essentially reverted to the pre-McGirt status quo. It proposed affirming civil jurisdiction for the tribes over matters of self-government and their own members. The tribes would not have jurisdiction over nonmembers outside Indian trust or restricted land except for specific exceptions already included in federal law such as consensual contracts.The proposal would affirm the state of Oklahoma’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.”Stitt said the alternative to federal legislation was working through numerous compacts with the tribes addressing specific matters. He warned that the landscape could become "littered with lawsuits."

Chris Casteel Prospects have dimmed for federal legislation this year to clarify Oklahoma’s criminal and civil jurisdiction in the wake of a momentous U.S. Supreme Court decision that could soon mean nearly half the state is Indian reservation land.Sen. Jim Inhofe, the most senior member of the state’s congressional delegation, said last week that it would be “very difficult” to get a bill passed this year addressing the myriad issues — including taxation and regulation — raised by the court’s ruling that the Muscogee (Creek) Nation reservation was never terminated.Inhofe said many...

As questions mount, prospects dim for federal bill on Oklahoma reservations

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