Law & Principles

Attorney General’s tribal agreement falling apart?

July 17, 2020

Ray Carter

On Thursday, July 16, Oklahoma Attorney General Mike Hunter announced he had reached an agreement with five tribes to address jurisdictional issues raised by a recent U.S. Supreme Court ruling. In making his announcement of an “agreement in principle,” Hunter said there were “many more details to be ironed out in the near future.”

Within a day, it appears one of the issues to be ironed out is which tribes were actually part of the agreement.

While a press release issued on July 16 indicated the Seminole Nation was part of the “agreement in principle,” Seminole Nation Chief Greg P. Chilcoat issued a statement on Friday, July 17, saying the Seminole Nation “has not formally approved the agreement-in-principle announced by the other four tribes.”

“To be clear, the Seminole Nation has not been involved with discussions regarding proposed legislation between the other four tribes and the State of Oklahoma,” Chilcoat said. “Furthermore, the Seminole Nation has not engaged in any such discussions with the State of Oklahoma, including with the Attorney General, to develop a framework for clarifying respective jurisdictions and to ensure collaboration among tribal, state, and federal authorities regarding the administration of justice across Seminole Nation lands.”

In its recent ruling in McGirt v. Oklahoma, the U.S. Supreme Court found certain crimes involving American Indians on tribal land in Oklahoma must be prosecuted in federal, not state, court. While the decision directly affected land held by the Muscogee (Creek) Nation, it is expected to equally apply to the Cherokee, Chickasaw, Choctaw, and Seminole nations. The cumulative effect of the ruling could impact nearly half the state of Oklahoma, where 1.8 million people reside, including the city of Tulsa.

Under the agreement announced by Hunter, the attorney general and officials from those five tribal governments reportedly supported federal legislation to “affirm” state criminal jurisdiction “over all offenders” on tribal lands in Oklahoma “with the exception of crimes involving Indians committed on Indian trust or restricted lands.”

The agreement also said that in the area of civil jurisdiction, “including the ability to legislate, regulate, tax, and adjudicate on non-criminal matters,” the proposed federal legislation should affirm a tribe’s civil jurisdiction “throughout their respective treaty territories.”

The proposed federal law would also grant tribes civil jurisdiction over non-tribal members when the “conduct” of non-members “threatens Tribal self-governance or the economic security, health, or welfare of the Tribe.”

A release issued July 16 indicated the support of all five tribes and included a quote attributed to Chilcoat in which he said, “The Seminole Nation is pleased with the Supreme Court’s ruling upholding the Muscogee (Creek) Nation’s jurisdictional boundaries. We understand our relationship with the State is important, and that we are better together than we are apart. Through our relationship, we deeply understand the sovereign rights of both the State and Nation. As we work to move forward together, this will only strengthen how we both serve our communities and our people.”

That release was also posted on the Facebook page of the Seminole Nation of Oklahoma.

However, by the following day Chilcoat was distancing himself from the agreement. In his July 17 statement, which was also posted on the Seminole Nation’s Facebook page, Chilcoat said, “Before the Seminole Nation will consider any such framework, the Nation requires respectful and meaningful government-to-government discussions directly with the state. Until such government-to-government discussions occur, and the Nation has an opportunity to fully conduct its own due diligence to any such proposed legislation, the Seminole Nation does not consent to being obligated to an agreement between the other four tribes and the state. As always, the Seminole Nation is proud to be one of the Five Tribes and is eager to have a constructive discussion during this monumental time in our history.”

Since Hunter’s announcement was released, Muscogee (Creek) Nation Principal Chief David Hill has also issued a statement, posted to Facebook, saying the “Agreement-in-Principle document” is “a framework in regards to the Five Tribes and not to the Muscogee (Creek) Nation specifically.”

“MCN’s position is that the agreement Oklahoma’s Attorney General announced today is temporary and will be continuously monitored by MCN,” Hill said. “This agreement is provided solely to address the immediate transitional period as we address inter-governmental cooperation agreements consistent with the court’s decision and will give the MCN a voice in any potential congressional legislation. MCN, however, does not agree that legislation is necessary. If any legislation is proposed that Muscogee (Creek) Nation has not formally approved, MCN will oppose it and call upon all those who recognized the benefits of the McGirt decision to tribal citizens, and non-Indians alike, to join in opposition. MCN remains committed to working with the State of Oklahoma, along with all of the Five Tribes, to ensure the safety, health, and welfare of all Oklahomans living within the borders of MCN’s Reservation. However, legislation is not necessary to achieve this goal.”

Any formal government-to-government discussions between the State of Oklahoma and a tribe would have to involve Gov. Kevin Stitt, not Hunter, based on constitutional and statutory requirements.

The Oklahoma Constitution grants the governor “Supreme Executive power” and state law further elaborates that the governor is the official “authorized to negotiate and enter into cooperative agreements on behalf of this state with federally recognized Indian tribal governments within this state to address issues of mutual interest.”

That law does allow the governor to name a designee to negotiate such agreements, but Stitt has not named Hunter as a designee for any state-tribal agreements related to the U.S. Supreme Court’s McGirt ruling.

A 2004 opinion issued by the office of the attorney general also backs the governor’s role as the lead state authority when state-tribal agreements are negotiated. 

Hunter responded to Chilcoat and Hill’s comments in a brief statement.

“Since the Murphy case went before the U.S. Supreme Court over two years ago, we have been meeting regularly with the Muscogee (Creek), Seminole, Cherokee, Chickasaw and Choctaw Nations to discuss potential legislation, so Chief Hill's statements today come as a stunning and regrettable reversal of commitments and assurances to me,” Hunter said. “This is neither in the best interest of the state of Oklahoma nor its tribal citizens. Legislation is necessary to clarify the criminal and civil uncertainty created by the McGirt decision. I am deeply disappointed in Chief Hill for withdrawing from this process. It is my hope that both the Muscogee (Creek) Nation and the Seminole Nation will recommit to our agreement on legislation that preserves public safety and promotes continued economic growth.”

On July 15, the Oklahoma Council of Public Affair’s Center for Independent Journalism emailed Hunter’s office, asking for the names of the attorneys who were representing each tribe in the then-ongoing negotiations. As of publication on July 17, no response had been provided.

NOTE: This story has been updated since publication to include comment from Attorney General Mike Hunter.

(Image: KWTV-DT, News 9 video screenshot)