Posted Mar 14, 2022 7:51 a.m.
Nancy Marie Spears
Oklahoma is in a power struggle with its 39 tribes over criminal jurisdiction and whether or not there are Native American reservations in the state, but legal experts say Arizona and other western states have solved most of these problems years ago.
In 2020, the US Supreme Court ruled that the Muscogee reservation in Oklahoma had never been dissolved by Congress, meaning the federal government – not the state – had jurisdiction over the crimes committed on Muscogee lands.
The case involved Jimcy McGirt, an enrolled member of the Muscogee tribe who Oklahoma prosecutors convicted of sex crimes. The Major Crimes Act, first enacted in 1885, gives the federal government jurisdiction over crimes committed on tribal lands.
The basis of the McGirt decision is a Case
decided by the New Mexico Supreme Court in 2006, said Jerri Mares, director of legislative affairs for the New Mexico attorney general. He ruled that the state lacked jurisdiction to prosecute crimes on New Mexico reservations.
“While New Mexico will undoubtedly feel an impact from the McGirt v. Oklahoma decision in the future,” Mares said, “New Mexico case law has already established a framework for determining who may exercise jurisdiction over crimes committed by members of Indian tribes in Indian country.”
Since McGirt was returned, Oklahoma courts have ruled that the Cherokee, Choctaw, Chickasaw, Seminole, and Quapaw tribal reservations were never legally dissolved.
Robert J. Miller, a professor at ASU’s Sandra Day O’Connor College of Law and a member of the Eastern Shawnee Tribe in Oklahoma, said his tribe’s 14,000-acre reservation could potentially be recognized again under McGirt.
Prior to McGirt, Miller said, Arizona had by far the most tribal land within its borders, at 27%. Now, with six restored reservations, Oklahoma leads with 43%.
“There is no state that makes the same case as Oklahoma,” Miller said. “Oklahoma acts like this, it’s the end of the world. Yes, 43% is a big deal and it’s a shock to the system. I called this case bomb and it was a bombshell for the federal government, the state and the tribes.
Oklahoma Governor Kevin Stitt clashed with tribes over casino gaming pacts in 2019, a year before the McGirt decision. In 2021, the Republican clashed with tribal leaders over the costs of hunting and fishing contracts and the expiration of gambling contracts.
Stephen Greetham, the senior attorney for the Chickasaw Nation, said “there is no longer any ambiguity to reasonably debate” in the application of the law.
Greetham said that in his experience working with his team, the governor only wants to work within the framework of a McGirt rollback, “and the tribes won’t.”
“Each of these states (outside of Oklahoma) have been dealing with this for quite a long time,” Greetham said. “They have invested in and built and structured their law enforcement systems to deal with the law as it is. What Oklahoma is doing, instead of working with the tribes and working with the law as it is, is continuous arguments trying to say, “No, not us, we’re different.”
“It does not work like that.”
Rachel Roberts, director of communications for the Oklahoma attorney general’s office, said there may be room for dialogue with tribal nations.
“The Attorney General has had constructive conversations with tribal leaders and looks forward to further discussions in the future,” she said this month.
Oklahoma’s position is not unique, according to Monte Mills, a professor of federal Indian law at the University of Montana. State and local concerns about tribal rights and their impact on non-tribal citizens are often at the heart of these disputes, he said.
“That’s not to say there haven’t been disputes about whether the state exercises authority or taxes certain people within the boundaries of the reservation,” Mills said. “These have continued, but this fundamental question of whether the reservations exist has not been an issue here recently as it has been in Oklahoma.”
Alexander Skibine, a professor at the SJ Quinney College of Law at the University of Utah, pointed to ongoing disputes over the boundaries of Ute Tribe reservations.
“While McGirt only affects Oklahoma for the immediate future, disputes over boundaries or removal of reservations have affected a number of states,” Skibine said. “Here in Utah, the state has long refused to cooperate fully with federal decisions regarding reservation boundaries.”
Miller said Arizona has in the past argued a number of Supreme Court cases against the tribes. In 1959 and 1973, the state sued individual members of the tribe in state court as well as a case in which the state tried to tax the wages of a Native woman who lived in the Navajo Nation. Arizona, he said, has learned to recognize the tribes for what they are: an equal body of government.
“The state recognizes tribal governments as constitutionally recognized governments, and you must deal with them the same way you deal with other states or with a city or county,” Miller said. “The Oklahoma tribes now have a lot of obligations that they didn’t have before. Most of them work diligently to absorb these new powers. They cooperate with the feds, they want to cooperate with the state. Will the state do it? »
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