TAHLEQUAH – Many jurisdictional questions have been raised by the McGirt v. Oklahoma decision about how far the reach of tribal, state and federal law enforcement agencies extends onto Native reservations, particularly when non-Natives perpetrate a crime.
Cherokee Nation Attorney General Sara Hill spoke to reporters during an April 6 virtual press conference about the potential effects of McGirt.
“It was important for the tribes to get an acknowledgment by the United States Supreme Court that the treaties made between the United States and the Five Tribes had meaning,” Hill said. “The consequence of that was the acknowledgment that the state had been illegally prosecuting people – Indians or people who had committed crimes against Indians – for 100 years.”
Early on, Hill said victims of crimes in cases that could be retried had the support of the CN attorney general’s office.
“Those processes are inevitably going to be painful for the families and victims involved,” Hill said. “We’re doing everything we can to maintain contact with those victims to be sure they have the support they need from the Nation, with increased funding to victims’ services to be sure we have the victim advocates to support people that are in this situation.”
Hill warned there would likely be a few cases which could not be retried, citing statutes of limitations and the possibility of evidence being lost during the years. She said a few others may be released based on time already served under a state prosecution.
With tribal nations now assuming jurisdiction over many criminal cases, the legal workload has markedly increased. Hill said her office filed 440 cases over a span of six weeks, and that $10 million was added to the budget to hire additional prosecutors.
Hill said the Five Tribes are missing some of the “tools” they need post-McGirt, and only Congress can provide them. She said the CN wants the acknowledgements of the McGirt decision maintained, but also seeks the freedom to negotiate jurisdictional agreements with the Oklahoma government.
“Federal legislation is necessary to allow the Cherokee Nation and the state to compact on issues involving criminal jurisdiction,” she said. “To be clear though, the Nation will not stand for any solution that would in any way limit the sovereignty of the Cherokee Nation nor the rights that we have fought for, or the treaty rights the Nation has.”
On a tribal reservation, the federal government prosecutes major crimes and any crime perpetrated by a non-Native; the state prosecutes non-Natives who commit victimless crimes or against other non-Natives; and the tribe tries crimes involving Natives. Hill said the system is “imposed upon tribes” and has “well-documented problems.”
“It prohibits the state and the tribes from prosecuting non-Natives who commit serious crimes on reservation land,” she said. “It leaves our tribal government and the state government heavily reliant on the United State and the U.S. Department of Justice.”
Hill said the U.S. often has difficulty providing adequate law enforcement, including “the police, prosecutors and other resources” to deal with crime on Native reservations.
Tribal courts are also prohibited from handing down sentences of more than three years or fines in excess of $15,000, regardless of the seriousness of the offense.
“That’s just a congressional limitation on the authority of tribes to sentence individuals,” Hill said.
She said the Cherokee Sovereignty Commission has recommended congressional approval for tribes to enter into compact agreements with the state. “It will create further options for tribes to work with the state of Oklahoma to provide legal systems without restricting our sovereignty, or mandating agreements without tribal approval.”
Hill also spoke about the possibility of retrials of capital cases, with death sentences handed down by the state. She said federal prosecutors have sought death penalties against Native defendants.
“In order for the death penalty to be an option in some circumstances, the tribe has to opt in,” she said. “There has only been one tribe in the United States to opt in to the death penalty. The Cherokee Nation has not opted in. (Whether the CN will opt in) is not a question I can answer. It would be a political decision and not a legal decision.”