The dispute over state/Tribal law enforcement jurisdiction brought about by the U.S. Supreme Court’s McGirt v. Oklahoma decision in 2020 took its latest turn last week. Members of the Inter-Tribal Council of the Five Civilized Tribes (Cherokee, Chickasaw, Choctaw, Muscogee, and Seminole Nations) rejected participation in Gov. Stitt’s One Oklahoma Task Force.
The task force was created by executive order “to provide the Governor, the Legislature, Tribal leaders, and the state’s congressional delegation with substantive legislative and regulatory recommendations, including but not limited to updated uniform cross-deputization agreements, uniform jail agreements, and state and federal legislative proposals.”
Catalyst for creation of the task force was a recent altercation between the Okmulgee County jail staff and a member of the Muscogee Nation Lighthorse Police, when the Lighthorse attempted to book an arrestee into the Okmulgee County jail. The county officers refused to accept the validity of the Lighthorse’s cross-deputization by the Grand River Dam Authority, an entity of the state.
It’s easy to understand the emotional reactions to the McGirt decision by both Tribal officials and state law enforcement. For more than 100 years, it has been assumed by the state that Indian Country in Oklahoma consisted of land allotments awarded to Tribal members by the federal government, and that Oklahoma had no Tribal reservations as they exist in other states. Both federal and state law enforcement honored this understanding.
The Muscogee Nation, however, likely channeling the feelings of other Tribes disagreed and felt that their sovereignty had been infringed upon by the exercise of criminal jurisdiction over cases involving Tribal members on their reservations. They were proven right by the McGirt ruling. The state took the ruling as a loss of sovereignty over a portion of its territory rather than a recognition of Tribal jurisdiction that had existed but been unrecognized for years.
Such a sudden reversal of a long-held jurisdictional understanding was met with shock and denial by the state, causing the two sides to miss an early opportunity to face the new reality cooperatively. The state did score a legal win in 2022 when the Supreme Court limited McGirt by ruling in Oklahoma v. Castro-Huerta that state courts have concurrent jurisdiction with federal courts over crimes committed by non-Indians against Indians in Indian Country.
Tribal leaders took offense at both the composition of the task force and the tenor of the governor’s executive order. Only two of the 38 federally recognized Tribes were to be represented on the 13-member task force. The executive order characterized McGirt as “continuing to wreak havoc in nearly half of the State of Oklahoma and calls for “recommendations relevant to the speedy resolution of the broken system created by the McGirt decision.”
Tribal leaders do not view McGirt as having “wreaked havoc” or created a “broken system.” As time moves on, it appears that cooperative efforts to reach practical solutions will be more and more difficult and may be years away.