The decision by the Oklahoma Court of Criminal Appeals Thursday to vacate the manslaughter conviction of former Tulsa police officer Shannon Kepler is just the latest example of the impact of the United States Supreme Court's ruling last summer in McGirt v Oklahoma that Congress never disestablished the Muscogee (Creek) Nation. Kepler is a tribal member and the crime occurred within the boundaries of the Creek Nation, and therefore, per the SCOTUS ruling, he should have been tried in federal court and not by the state.
Anticipating the decision, federal prosecutors re-charged Kepler with first-degree murder in November.
Still, as more convictions are vacated, there is added pressure on tribal and federal authorities to step into the gap created by the McGirt decision, as well as, more pressure on the tribes and the state to come up with a long-term solution.
Given the federal government's long and largely poor history in the treatment of Native Americans, tribal advocates in Oklahoma don't say this lightly, but some are looking to Congress for help.
"We see a narrow role for Congress in this, which is to kind of lift the constraints imposed by federal statute and allow us to compact on criminal jurisdiction," said Stephen Greetham, Senior Counsel for the Chickasaw Nation.
Greetham represents the Chickasaw Nation which, owing to McGirt, finds itself, along with the Creek, Cherokee, Choctaw, and Seminole Nations, now partnering with federal authorities, not the state of Oklahoma, on law enforcement.
"At the end of the day, this case is not about an increase in crime," said Greetham in a Zoom interview this week. "It’s simply a reallocation of who is responsible for handling the consequences of the crime, and you’re going to see responsibilities on the federal and tribal system go up."
In truth, those responsibilities have already gone up, and Greetham said, "there is no daylight between the tribes and the state in our commitment to public safety and effective law enforcement." He said the tribe accepts the increased responsibility and is making the investments that are needed. But tribal leaders question whether it's the best use of resources, when the state already has the legal infrastructure in place, to essentially create a parallel system.
"We are going to be making investments in criminal justice," Greetham stated. "The question is are we going to be investing in more cops and courts, or investing in intervention programs, victim services, and other complimentary programs.
For their part, handling the prosecution of major crimes within the boundaries of the five tribes' reservations, federal prosecutors are reportedly struggling to handle the increased load.
In view of these various factors, both the Chickasaw Nation and the Cherokee Nation feel the best solution is to bring the state back in through a negotiated compact, a position supported by Attorney General Mike Hunter, Speaker of the House Charles McCall, and Senate President Pro Tem Greg Treat.
"That’s very encouraging," said Greetham. "We have not heard Governor Stitt publicly address this issue, which gives us pause."
Governor Stitt visited with the federal delegation in Washington last month and, in an interview, did acknowledge compacting as a 'possible' way forward.
"There is a compacting solution," the governor noted. "Could we compact on the criminal Major Crimes Act? That’s going to take legislation, federal legislation."
The passage of legislation enabling the state and tribes to compact on criminal justice jurisdiction would likely require that, at the very least, the seven members of the state's delegation be in agreement, and right now that is not the case.
"There isn’t a consensus of us moving forward yet," said Rep. Markwayne Mullin, (R) OK-2, in an interview last week. "There is a lot of difference of opinion."
Greetham said this will take some time, but said they are having very positive discussions with the delegation.
"They get it, they see the seriousness of it," Greetham said. "So, all I can really offer is that I’m optimistic."
So far, the other affected tribes are rejecting the notion of compacting with the state on criminal jurisdiction, which is one reason certain members of the congressional delegation feel it's not time yet for compacting legislation. Greetham points out the measure wouldn’t require that tribes compact with the state, it would just allow for it.
"I do believe that there is some hope or aspiration from the state and from the delegation that there will be uniformity in approach," Greetham acknowledged, "but the position we're arguing is on behalf of Chickasaw Nation: we see real value in having the option to choose, and I think that optionality being on the table will be good for all tribes."