Proposed Update To McGirt Ruling On Tribal Jurisdiction Receiving Pushback

A proposed legislative solution introduced by Rep. Tom Cole is getting more pushback as some say it goes too far and others say it doesn't go far enough.

Wednesday, June 2nd 2021, 5:57 pm


A proposed legislative solution in Congress to the current confusion surrounding criminal jurisdiction in Oklahoma Indian Country is getting more pushback, even as the Supreme Court whose ruling a year ago caused the confusion considers whether to weigh in on the matter again.

Rep. Tom Cole, (R) OK-4, introduced legislation last month, ten months after the Court's 5-4 ruling in McGirt v. Oklahoma, offering a potential solution for two of the five tribes impacted -- the Cherokee Nation and the Chickasaw Nation. In McGirt, the majority determined that Congress never properly disestablished the reservations created for the Cherokee, Chickasaw, Creek, Choctaw, and Seminole tribes in the 19th century, and thus, per the Major Crimes Act, crimes committed against Indians in Indian Country are still the jurisdiction of the federal government, not the state.

Hundreds of convictions have since been vacated, leaving the U.S Attorney's office and tribal law enforcement scrambling to refile charges in old cases, as well as, deal with new cases. Rep. Cole's bill would not force any tribe to do anything, but it would allow the Cherokee and Chickasaw Nations to return some criminal jurisdiction to the state through a negotiated compact.

So far, no other member of the delegation has not gotten behind the bill.

"I certainly don’t mind Congressman Cole putting out the first draft, to be able to say let’s get started on that," said Sen. James Lankford, (R) OK.

But Senator Lankford says it's problematic that three of the five tribes, the Creek, Seminole, and Choctaw oppose the legislation. He says it's important that the solution, whatever it is, work for all of the tribes, and for the state.

"At the end of the day, equal justice under the law is what we have to have in Oklahoma," said Sen. Lankford in an interview last week. "We can’t have some places and some people having different legal standards than other individuals in the state."

Rep. Cole made clear when introducing the legislation that he did view as a first draft and welcomed suggestions for making it better or for another approach altogether. Cole, who is a member of the Chickasaw Nation, says the two tribes that figure into his bill were expressing concern about a lack of progress on the issue and he decided to "take a risk" and put something out there. He said he welcomed criticism but said it's not enough to just criticize, you have to offer a proposal of your own.

Senator Jim Inhofe, in an interview last week, said the tribes need to be in agreement and so does the delegation. And they don't agree right now on what Rep. Cole is proposing.

"It’s a beginning, it’s a start," said Sen. Inhofe, (R) OK, "but as it is right now, it’s not going to be something that...that’s going to happen."

Meanwhile, last week, the Supreme Court agreed 6-3 to review an emergency petition filed by Oklahoma asking the Justices to weigh in on whether the state already has the authority to prosecute crimes committed on Native American land.


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