Capitol Insider: Tribes Hoping To Work With State Of Oklahoma On "Common Sense Solutions" to McGirt Issues
Tribal governments responding to the U.S. Supreme Court's 2020 decision in McGirt v. Oklahoma have looked to negotiation to resolve differences with the state of Oklahoma. Chickasaw Nation senior counsel Stephen Greetham discusses frustrations Native American tribes have experienced in pursuing tribal-state dialogue. In the previous episode of Capitol Insider our guest was Gov. Kevin Stitt's special counsel for McGirt matters, Ryan Leonard.
Dick Pryor: This is Capitol insider, your weekly look inside Oklahoma politics, policy and government. I'm Dick Pryor eCapitol news director Shawn Ashley and our guest is Stephen Greetham, senior counsel for the Chickasaw Nation, who has worked extensively on matters involving intergovernmental affairs. Thanks for joining us.
Stephen Greetham: Thank you for having me.
Shawn Ashley: Stephen, the U.S. Supreme Court's 2020 decision in McGirt v. Oklahoma found that Native American reservations in the state have never been disestablished, and the court found that Oklahoma does not have jurisdiction over crimes committed on tribal land against tribal citizens. That ruling has thrown state-tribal relations into the air, while the parties seek legal clarification on the reach of the decision. Stephen, what do tribes see as the issues that need to be addressed in Oklahoma because of the McGirt decision?
Stephen Greetham: In fairness, you know I work with representatives from many of the tribes. I represent the Chickasaw Nation but I think that the general consensus that I hear is folks are still scratching their heads as far as what exactly are the issues the state wants to resolve. When you look at what the state is filing with the Oklahoma Supreme Court, you would think that Oklahoma has been shaken to its very foundation and that's simply not the case. There are going to be issues that arise in the multi-jurisdictional context of a tribal reservation. We've been dealing with these issues for decades here in Oklahoma.
So the first step of the matter is coming to consensus about what the challenges are. I would suggest there's going to be tax issues we're going to want to work on. There's going to be issues about who is going to regulate what issue (is) going on on tribal lands. But those are pretty resolvable. The tribes are just as committed to a healthy, strong economy as anyone else here in Oklahoma, so there's ample common ground.
I would say our biggest challenge is the complete absence of a meaningful state-tribal dialogue at this point. We've got a choice. Do we look at the facts and commit ourselves to problem solving? Or do we stick to political posture and try to convert this into yet another wedge issue? On behalf of Chickasaw, that's the last thing we need. We need to figure out our common ground.
Dick Pryor: Well, let's talk about that dialogue, which to a large extent has come through litigation or at least filings, legal filings. Oklahoma Attorney General John O'Connor has filed several petitions with the U.S. Supreme Court asking the justices to overturn and or narrow the decision the court made just 15 months ago. What is the Chickasaw Nation’s and in general tribal nations’s response to the approach that the attorney general is taking?
Stephen Greetham: The state is so far committing itself to a political campaign rather than actual legal work. The petitions that the state has so far filed, we will respond to and we will see what the court does. I think it's unfortunate that the state has given up on any other avenue for working with each other. We have made clear from the beginning that where there are issues of common ground, we can sit down and work it out. Looking at the state's responses, though, for example, Department of Justice requested $70 million to support the FBI and federal prosecution work. According to Governor Stitt’s spokesperson they strongly oppose that legislation, but in the meantime they go to court and say that the feds don't have the resources they need to get the job.
That kind of back and forth and game is not helpful. It's not constructive. Chickasaw and Cherokee Nation have put forward a proposal that would authorize intergovernmental agreements that would allow us to allocate criminal jurisdiction. The Stitt administration again strongly opposes that legislation. That's unfortunate. We have similar legislation already under the Indian Child Welfare Act, which authorizes tribal-state jurisdictional agreements. Each of the five tribes has a jurisdictional agreement with the state of Oklahoma to deal in the civil jurisdiction context of child custody matters.
I can't get my head around why the state is unwilling to work with the tribes on common sense solutions. We're not committed to one size fits all. We're not committed to “there's only one answer,” but we got to figure out an answer together.
Shawn Ashley: Whether the McGirt decision applies retroactively is an issue that still needs to be resolved. Recently, attorneys for a man convicted of murder in Oklahoma filed an appeal with the U.S. Supreme Court asking it to overturn an Oklahoma Court of Criminal Appeals ruling that McGirt cannot be applied retroactively. Where do tribes stand on this matter?
Stephen Greetham: And you're referring to the Matloff v. Wallace decision from the Oklahoma Court of Criminal Appeals. In many ways, the Wallace decision helped neutralize the single biggest policy concern that I think the tribes and the state had following the McGirt ruling, and that would be the prospect of folks who've been in prison for 20 years, suddenly being able to get out of jail and then having witnesses who either can't recall or passed away, and that the re-prosecution of those case would be quite difficult.
Relying on state law, the Oklahoma Court of Criminal Appeals interpreted the state's own post-conviction relief statute and said, now, if a conviction was final July 9, 2020, it will stay final. There are going to be individual challenges and injustices within that holding. But as a policy matter, it provides a level of repose and finality. That's a huge relief to the families that otherwise may have gone through had to go through those trials again.
Dick Pryor: As you've indicated, the relationship between the governor's office and sovereign tribal nations is strained, to say the least. And there's not much work being done toward a negotiated resolution. In general, how do tribes want to see critical issues raised by McGirt resolved?
Stephen Greetham: Well, I would actually suggest a lot of them are being resolved. The tribes are incredibly busy right now, actually implementing McGirt. Through the end of September, I think the, and I don't have the numbers for Seminole, but through the end of September, we're up to 6,679 criminal cases. That doesn't include the traffic citations. If you include the traffic citations you're up to 9,347 matters that are being processed through tribal criminal justice systems. That's pretty impressive.
And as to the intergovernmental work, I think there is definitely a challenge that needs to be overcome in the tribal-Stitt relationship. But the tribal-state relationship remains pretty high functioning. And I would point to the Indian Child Welfare Act agreements that we signed. I would also point to and just looking at Chickasaw numbers, our Lighthorse Police of all of the arrests and citations that they have conducted since our reservation was affirmed, a full 70 percent of those cases are referred to non-tribal prosecutors. That means our Lighthorse Police are working with district attorneys and other local police officers to help bring cases through the state criminal justice system.
Flipside, within our tribal prosecutor team, a full 60 percent of the cases that they bring to court were referred to them by non tribal police. Those numbers just show in real time and concrete facts that we are working together on them. And there's a common interest in public safety and effective law enforcement, and anyone who says otherwise is either doesn't know the facts or they're trying to sell a story.
Dick Pryor: It's all very complicated. I know we'll be talking to you more. Stephen Greetham, thank you for your time with us on Capitol Insider.
Stephen Greetham: I really appreciate the opportunity to visit with you.
Dick Pryor: And we'd like to hear from you. Email your questions to email@example.com or contact us on Twitter @kgounews and @ecapitol. You can also find us online at kgou.org and ecapitol.net. Until next time with Shawn Ashley, I'm Dick Pryor.
(In the previous Capitol Insider, our guest was special counsel to Gov. Kevin Stitt on tribal affairs relating to the McGirt decision, Ryan Leonard.)