Acting on long-standing calls for progressive legislation, leaders of Cherokee Nation and Chickasaw Nation have voiced their support for the Cherokee Nation and Chickasaw Nation Criminal Jurisdiction Compacting Act of 2021, narrow federal legislation that would authorize Tribal-State compacting on criminal subject matter jurisdiction. The announcement marks a step forward in potential intergovernmental cooperation following the U.S. Supreme Court decision in McGirt v. Oklahoma.
Both tribes have made clear that any federal legislation must be based on the core principle of self-determination and be designed to empower Tribal-State problem solving with respect to their shared mission of the public’s safety and effective law enforcement. Read a statement here, and key questions & answers on the legislation are included below.
Does this legislation cede tribal jurisdiction to the state of Oklahoma?
Under this legislation, tribal jurisdiction is not and cannot be diminished. In fact, the proposed legislation specifically states, “Nothing in this Act…limits, modifies, or otherwise affects the authority or right that a Nation possess under, or which is protected by a treaty with the United States or other Federal law.” The legislation does not in any way diminish the Nation’s jurisdiction.
How does this bill strengthen tribal sovereignty? Does anything in the bill diminish tribal sovereignty?
Tribal sovereignty is the right of each tribal people to govern themselves. This legislation would strengthen tribal sovereignty by giving the Chickasaw Nation and the Cherokee Nation more options to address gaps in criminal jurisdiction on their reservations. When tribes have greater flexibility to determine their own future, tribal sovereignty is strengthened. Nothing in this legislation would diminish tribal sovereignty in any way.
Is this legislation necessary? Are there already tools that allow that Chickasaw Nation and Cherokee Nation to enter into compacts that regarding criminal jurisdiction? What about Public Law 280?
Public Law 280 imposes concurrent state criminal and civil jurisdiction on Indian country. Initially, if a state chose to impose its criminal and civil jurisdiction over Indian country within its borders, the tribes in that state were powerless to prevent it. Later, Public Law 280 was amended to require tribal consent before a state could impose its criminal and civil jurisdiction over a tribe. Oklahoma never invoked Public Law 280, and no Oklahoma tribes have ever agreed to have Oklahoma’s jurisdiction imposed on them. It’s hard to imagine that any Oklahoma tribe would ever want that. Once such jurisdiction is imposed, it is practically impossible for exclusive jurisdiction to be returned to the tribe.
The legislation proposed by Congressman Cole is, in many ways, the opposite of Public Law 280. Instead of using federal law to impose concurrent state jurisdiction over tribes, Congressman Cole’s legislation would empower the state and the Nations to enter into agreements regarding criminal jurisdiction that meet the public safety goals of both governments. The state cannot displace or diminish tribal jurisdiction under the proposed legislation, or force the Nations to enter into compacts with terms that don’t serve the interests of tribal communities. It also provides mechanisms for amendment or revocation of compacts.
Public Law 280 was intended to diminish tribal authority. Congressman Cole’s legislation expands the options available to the Chickasaw Nation and Cherokee Nation on their respective reservations, but it is entirely up to the tribes and the state to determine when or whether to use those options.
Without Congressman Cole’s legislation, the state and the tribe are completely bound by existing federal law, which is inflexible and does not provide for the type of creative problem solving that the state and tribes have successfully engaged in on many other topics, from motor fuels tax to Indian Child Welfare to hunting and fishing.
Does this legislation have implications for other tribes or Indian country outside the Chickasaw Nation or Cherokee Nation?
This is commonsense legislation that is narrowly worded to apply only to the Chickasaw Nation and the Cherokee Nation. It does not require either the Chickasaw or Cherokee to enter into compacts for criminal jurisdiction with the state, but authorizes such compacts if there is agreement between the state and the tribes. No other Nation is authorized to enter into compacts regarding criminal jurisdiction under this legislation, and “Indian country” outside of the Chickasaw Nation or Cherokee Nation cannot ever be affected by this legislation.
Would this legislation encourage the federal government to withhold funding from other tribes, or force other tribes to enter into compacts for criminal jurisdiction?
Nothing in this agreement authorizes withholding funding from any other tribes. Not only does it not force any other tribes to enter into compacts with the state related to criminal jurisdiction, it does not even authorize other tribes to enter into such compacts.
Do the Cherokee Nation and Chickasaw Nation support increased funding for public safety and judicial systems in Indian country?
Yes! The Cherokee Nation and Chickasaw Nation have long supported increased funding for public safety and judicial systems in Indian country, and will continue to do so. Increasing the strength of tribal governmental institutions is the top priority of both Nations, and this proposed legislation is consistent with that commitment to effective and strong tribal law enforcement in Indian country.