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Capitol Insider: McGirt Decision Compels State-Tribal Cooperation

U.S. Supreme Court
U.S. Supreme Court

The last day of the 2019-20 U.S. Supreme Court term saw the justices make a much-anticipated decision in a case involving criminal prosecutions in Oklahoma. In a 5-4 decision in McGirt v. Oklahoma, the Court determined that for the purposes of federal criminal law, tribal lands within the state are considered reservations. KGOU's Dick Pryor and eCapitol's Shawn Ashley discuss the landmark decision. 


Dick Pryor: This is Capitol Insider. Your weekly look inside Oklahoma politics, policy and government. I'm Dick Pryor with eCapitol news director, Shawn Ashley. Shawn, the U.S. Supreme Court issued a major decision clarifying the status of Native American nations in Oklahoma and the federal Major Crimes Act. Justice Neil Gorsuch wrote the majority opinion and McGirt v. Oklahoma, which held that tribal lands are reservations under the Act. What's the upshot of the opinion relating to criminal prosecutions in Indian country?

Shawn Ashley: Well, what this means is that tribal members who commit specific crimes listed in the Major Crimes Act on Indian land should be tried in federal court. Now, the Major Crimes Act is a 1885 law that established this requirement and set in place a series at the time of just seven specific crimes. It's since been expanded to more than a dozen. One of the issues the court had to resolve, though, was rather Indian land should be treated like a reservation and ultimately, no. Gorsuch writing for the majority said indeed it should. And therefore, the Major Crime Act applies and those individuals should be tried in federal courts.

Dick Pryor: The state attorney general and five tribes Chickasaw, Choctaw, Cherokee, Seminole and Muskogee Creek quickly responded. What they said is they are working on implementing a framework of shared jurisdiction in these areas.

Shawn Ashley: Now, they weren't specific as to what that could be, but we've seen some examples in the past, such as memorandums of understanding related to law enforcement officers, both tribal and non-tribal officers, and how they worked in and on these lands. It could also lead to future compacts between the state of Oklahoma and those tribes governing how laws will be enforced – criminal laws in particular - will be enforced in these areas.

Dick Pryor: That cooperative approach is something Justice Gorsuch suggested in his opinion.

Shawn Ashley: That's right. He noted that the state and the tribes had worked together on a number of issues in the past. Of course, we're well aware of the current controversy involving tribal gaming that they're working to resolve. But there are a large number of compacts and memorandums of understanding between the state and tribes on the books in the state of Oklahoma governing motor fuel tax, tobacco taxes and as I mentioned, law enforcement activity.

Dick Pryor: As promised, the state of Oklahoma has released a county-by-county heat map showing the status of COVID-19 in each county. What does the map indicate?

Shawn Ashley: Well, the map is designed to indicate the level of growth and increase of COVID-19 on a county-by-county basis. It's a four-tiered or four-colored map. Green, of course, being the best, then moving to yellow or orange and finally red. The changes in the map are based on those increases in the number of local COVID-19 cases per 100,000 population.

Dick Pryor: How are people supposed to interpret this new map and know what they're supposed to do?

Shawn Ashley: Depending on the level of alert, Dr. Lance Frye, the Commissioner of Health, described this as a risk assessment tool for citizens and local officials to use to do that very thing, determine what actions they should be taking. The map is available on the State Department of Health Coronavirus website and provides buttons that lists specific items for consideration by individuals, businesses and local officials. These range from simply avoiding large groups to wearing mask to perhaps even limits on large group activities and other actions that we've seen in the past.

Dick Pryor: Some other states, and municipalities including Norman and Stillwater, have enacted mask mandates. Is there a point at which the state of Oklahoma would mandate masks or other enhanced measures?

Shawn Ashley: You know, we really haven't heard that from Governor Stitt or Dr. Frye. In fact, on Thursday during a press conference, what Governor Stitt seemed to be stressing is to look at the timeline of the states COVID-19 response, which began back in March. At that time, of course, there were steps taken to shut down portions of the economy and ask citizens to stay at home in order to flatten the curve or lower the base, if you will, of the number of cases and the number of individuals hospitalized. That was accomplished to a certain extent. And officials like Kevin Stitt have said that when the economy reopened, we would see cases increase and additional hospitalizations, but their goal was to avoid the hospital and health care system being overwhelmed in the state. On Thursday, Governor Stitt said it would take approximately 2,000 new cases per day for 14 days to near that point. According to the State Department of Health approximately 20 percent of the adult intensive care unit beds in the state are currently available, and another 30 percent of the pediatric intensive care unit beds are also available.

Dick Pryor: Thank you, Shawn.

Shawn Ashley: You're very welcome.

Dick Pryor: And that's Capitol Insider. If you have questions, e-mail us at news@kgou.org or contact us on Twitter @kgounews. You can also find us online at kgou.org and ecapitol.net. Until next time with Shawn Ashley, I’m Dick Pryor.

Access new Oklahoma COVID-19 resources and the county-by-county map with guidelines at this link.

The Oklahoma Department of Health COVID-19 information home page, which includes daily updates can be found at this link.

Dick Pryor has more than 25 years of experience in public service media, having previously served as deputy director, managing editor, news manager, news anchor and host for OETA, Oklahoma’s statewide public TV network. He was named general manager of KGOU Radio in November, 2016.
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