Oklahoma's Own In Focus: Tribal Compacts, Task Forces, And Tags

The stalemate between the tribes and the governor continues after the tribes declined the governor’s invitation to join a task force looking at the 2020 McGirt ruling.

Governor Kevin Stitt announced the formation of the “One Oklahoma” taskforce last month, saying “The McGirt decision has created confusion and tension.” Stitt said his goal was to bring state and tribal leaders together to “confront the continued impact of McGirt.”

The Five Civilized Tribes this week, sent a letter to the governor, declining the task force invitation, calling the McGirt ruling a “pro-public-safety ruling that restored tribal jurisdiction.” 

Their letter goes on to say “The Five Tribes cannot participate in an effort that spreads falsehoods about the law, attempts to minimize tribal voices, and engages in political attacks instead of constructive government-to-government dialogue.” “The decision in McGirt V. Oklahoma opened a sort of Pandora's box of issues for folks to consider,” said Robert Gifford, a tribal law expert.

Stitt’s order says the McGirt ruling “continues to wreak havoc in nearly half the state.” The governor is calling for the task force to develop and submit a report that contains:

1. Legislative and regulatory recommendations to address the effects of the McGirt decision;
2. Uniform cross-deputization and jail agreements; and
3. Any other recommendations relevant to the speedy resolution of the broken system created by the McGirt decision.

“Cross-deputization in this case is two law enforcement agencies in two separate jurisdictions having to work together when there's an issue that arises either right on their border or spills over from one jurisdiction to the other,” said Gifford.

Gifford explains the cross-deputization is similar to the Norman Police Department’s agreement with the University of Oklahoma police, or the Stillwater Police Department’s agreement with the Oklahoma State Police. Gifford explains these cross-deputization agreements have been around long before the McGirt decision. He says many of the agencies work well together, it’s just a few agencies in the state that may need new agreements.

“But it's not until now and the fighting that's happening between the state governments and the tribal governments is creating the issue,” said Gifford. “Unfortunately, it's going to be the citizens of and residents of Oklahoma and tribal members that will pay the price.” "By initiating the One Oklahoma Task Force in good faith, Governor Stitt created an opportunity for a solution-oriented dialogue with our tribal partners on a critical public safety issue, McGirt.  The tribes’ letter goes on to say, “When we have a willing partner at the State of Oklahoma, we are fully prepared to move forward, and we are eager to work with our friends and neighbors to improve coordination in public safety efforts.”

“The tribes wanted a seat at the table and to influence the state’s response to the issue. Governor Stitt gave them a seat at the table, and they’ve chosen not to participate. Further, the Task Force allows for additional groups to present upon request. We are hopeful the tribes will reconsider, but Governor Stitt will continue to seek input from all parties.” Abegail Cave, Governor Stitts’ Communications Director.

“I don't see any agreement between the state of Oklahoma or the tribes until there is a new election,” said Gifford. The Attorney General says he will be participating in the task force, and the House Speaker and Senate Pro Tem both say they will designate a member to participate.

Governor Stitt says he is hoping the Five Tribes will reconsider.

The One Oklahoma Task Force states it will be comprised of:

1. The Governor or designee, serving as chair;
2. The Speaker of the Oklahoma House of Representatives or designee;
3. The President Pro Tempore of the Oklahoma Senate or designee;
4. The Attorney General or designee;
5. An appointee by the District Attorneys Council;
6. An appointee by a county jail trust;
7. An appointee by the Office of Juvenile Affairs;
8. An appointee by the Oklahoma Sheriff’s Association;
9. An appointee by the Oklahoma Highway Patrol;
10. An appointee by the Oklahoma State Bureau of Investigation;
11. An appointee by the Council on Law Enforcement Training (CLEET);
12. One member representing Oklahoma’s Five Tribes; and
13. One member representing Oklahoma’s other thirty-eight tribes.

The order states, “Any vacancies in the membership of the Task Force shall be filled in the same manner provided for in the initial appointment.” The Executive Order states that appointments shall be made within 30 days of the order, which was filed on December 22nd. It adds that the chair shall hold the first task force meeting within 60 days of the filing.

This is just one instance in a long list of issues between the Governor and the tribes.

Issues between tribes and the Governor:

Tribal Tags

A Garfield County judge dismissed a ticket issued to a woman with tribal tags. OHP gave her the ticket because they say didn't live on tribal land.

Governor Stit says the law is a matter of public safety. There is growing concern within Oklahoma's Native American community that citizens will face fines for their tribal tags after a recent uptick in the enforcement of rules regarding taxes and license plates.

News 9 received a statement from Oklahoma Gov. Kevin Stitt’s team: 

"This is addressing a significant public safety issue that puts law enforcement and others at risk. If tribal governments won’t share vehicle registration information with DPS, we can’t keep our officers and our streets safe. Members of tribes with valid compacts that provide needed car registration information will not be ticketed. Oklahoma Highway Patrol is simply enforcing the law and following U.S. Supreme Court precedent.”

This comes after a member of the Otoe-Missouria Tribe recently shared a picture of her costly ticket on Facebook. 

The Otoe-Missouria Tribe stated on November 9, 2023, that a citizen was informed that they could not use their tribal car tag.

The citizen posted on Facebook that they were given a $249 ticket by the Oklahoma Highway Patrol for operating a vehicle "on which all taxes due to the state have not been paid." The citizen said the trooper told them that they were using tribal tags outside of their jurisdictional area, meaning that the citizen's registered address was not located within the tribal jurisdiction of the Otoe-Missouria, making them unqualified to drive their car using the tribe's tag.

In response, the Otoe-Missouria Tribe said that this new rule was real and was made by the state without consultation of the tribe.

And The Oklahoma Highway Patrol issued this statement:

"There are two circumstances in which an Indian living in Oklahoma may use a tribal tag in lieu of a state-issued tag:

• Pursuant to the United States Supreme Court's holding in Okla. Tax Comm'n v. Sac & Fox Nation, 508 U.S. 14 (1993), Indians may use a tribal tag if they (1) have registered their vehicles through the tribe and (2) reside and principally garage their vehicle in the tribe's Indian country.

• For tribes with a valid compact with the state, members of those tribes may lawfully use a tribal tag no matter where the person lives.

Other than these two circumstances, all Oklahomans must register their vehicles with an Oklahoma tag and registration. Oklahomans who fail to do so are subject to enforcement under the Oklahoma Vehicle License and Registration Act, which may include a misdemeanor citation and/or impoundment of the vehicle."

Service Oklahoma, which handles car registrations, says on its website unauthorized tribal plates may lead to penalties. According to a 1993 US Supreme Court ruling, authorized means the vehicle must be registered through the tribe, and the owner must reside and principally garage the vehicle in the tribe's territory. This rule doesn't apply to the three tribes that have vehicle compacts with the state: Choctaw, Cherokee, and Chickasaw. Other tribes are disputing how the law is being enforced.

Tribal Compacts:

Possibly the longest ongoing battle is over tribal compacts.

Lawmakers held a special session in July to extend tobacco and motor vehicle compacts after Governor Stitt vetoed the bills. They overrode the veto, extending the compacts for a year. The hope is for the Governor and Tribes to renegotiate- that's something Stiit says he's been trying to do.

One other compact is still under fire. The 5 tribes are suing the Governor over a revised gaming compact, agreed to with a few smaller tribes.

Arguments will be heard by the State Supreme Court.

What is a tribal compact?

A compact is a type of contract between a state and tribes. Compacts between states and tribes put in place rules for the management of gaming activities, and how the state and tribes divide income from taxes on tobacco sales and motor vehicles. Although a compact is negotiated between a tribe and a state, the U.S. Secretary of Interior must approve it.

CLICK HERE for more information from Oklahoma.gov.

What is a gaming compact?

Oklahoma voters in 2004 approved SQ 712, which set up a model compact between the state and Native American tribes to regulate tribal gaming operations. The tribes were allowed to manage specific games in return for making payments to the state.

CLICK HERE for more information about Oklahoma's gaming compact.

What does Class III gaming mean?

The Indian Gaming Regulatory Act (IGRA) Class III includes all forms of gaming; lucrative, casino-style slot machines, and ball and dice games. Class III gaming needs a tribal ordinance to pass, but it also requires tribes to conduct Class III activities “in conformance with a Tribal-State compact entered into by the Indian tribe and the State.”

What is the State-Tribal Gaming Act?

Through the State-Tribal Gaming Act, the state laid out the exact terms of its offer for a gaming compact to allow Class III gaming to each federally recognized tribe within Oklahoma. Oklahoma tribes interested in Class III gaming were able to simply accept those terms without negotiations that are usually necessary in other states.

CLICK HERE for more information from the Oklahoma Bar Association.

What is a task force, and why does Governor Stitt want one?

Governor Kevin Stitt announced a task force to address the impact of the Supreme Court's ruling on tribal jurisdiction on December 22, 2023.

The "One Oklahoma" task force will consist of the Governor, top state lawmakers, the attorney general, tribal representatives, and several law enforcement officials.

The task force will develop recommendations for new legislation and uniform cross-deputization requirements.

Governor Stitt signed Executive Order 2023-32 shortly after a dispute over tribal jurisdiction between a Muscogee Creek Lighthorse officer and an Okmulgee County jailer.

What was the McGirt decision?

McGirt Vs. Oklahoma 2020:

The Supreme Court ruled on July 9, 2020 that a large chunk of eastern Oklahoma will remain an American Indian reservation, a decision that state and federal officials have warned could throw Oklahoma into chaos.

The court’s 5-4 decision, written by Justice Neil Gorsuch, means that Oklahoma prosecutors lack the authority to pursue criminal cases against American Indian defendants in parts of Oklahoma that include most of Tulsa, the state’s second-largest city.

Oklahoma’s three U.S. attorneys quickly released a joint statement expressing confidence that “tribal, state, local and federal law enforcement will work together to continue providing exceptional public safety” under the ruling.

Jonodev Chaudhuri, ambassador of the Muscogee (Creek) Nation and a former chief justice of the tribe’s Supreme Court, said the state’s argument that such a ruling would cause legal havoc in the state was overblown.

Forrest Tahdooahnippah, a Comanche Nation citizen and attorney who specializes in tribal law, said the ruling’s short-term implications are largely confined to the criminal context and that serious felonies committed by Native Americans in parts of eastern Oklahoma will be subject to federal jurisdiction.

The case, which was argued by telephone in May because of the coronavirus pandemic, revolved around an appeal by an American Indian who claimed that state courts had no authority to try him for a crime committed on reservation land that belongs to the Muscogee (Creek) Nation.

The reservation once encompassed 3 million acres (12,100 square kilometers), including most of Tulsa.

The Supreme Court, with eight justices taking part, failed to reach a decision last term when it reviewed a federal appeals court ruling in a separate case that threw out a state murder conviction and death sentence. In that case, the appeals court said the crime occurred on land assigned to the tribe before Oklahoma became a state and Congress never clearly eliminated the Creek Nation reservation it created in 1866.

The case the justices decided on July 9, 2020 involved 71-year-old Jimcy McGirt, who is serving a 500-year prison sentence for molesting a child. Oklahoma state courts rejected his argument that his case does not belong in Oklahoma state courts and that federal prosecutors should instead handle his case.

McGirt could potentially be retried in federal court, as could Patrick Murphy, who was convicted of killing a fellow tribe member in 1999 and sentenced to death. But Murphy would not face the death penalty in federal court for a crime in which prosecutors said he mutilated the victim and left him to bleed to death on the side of a country road about 80 miles (130 kilometers) southeast of Tulsa.

Neither Murphy nor McGirt is expected to be released from prison, but they will likely have charges brought against them in federal court, said Michael McBride, chair of the Indian Law & Gaming Practice for Oklahoma City-based law firm Crowe & Dunlevy.

Following the ruling, the state of Oklahoma issued a joint statement with the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations in which they vowed to work together on an agreement to address any unresolved jurisdictional issues raised by the decision.

June 2022: 

Oklahoma now has the authority to prosecute non-tribal members who commit crimes against Native Americans on Indian Territory.

In 2020, the McGirt ruling put half of the state back in Indian Territory, saying that Congress never disestablished the original reservations. This allowed tribes to prosecute any crimes committed in tribal or federal courts.

Oklahoma attorneys fought this, saying that the state is entitled to at least share criminal jurisdiction in Indian Country. The court now agreed.

Brent Kavanaugh wrote the decision saying that the Constitution quote "allows a state to exercise jurisdiction in Indian country."

Locally, Gov. Kevin Stitt cheers on the decision.

The Choctaw and Cherokee Nation Chiefs both have said they are disappointed with the ruling.

"After all the time we spent trying to make this a state and a nation where we're a melting pot, we were having to stop and ask, are you a member of a particular race," said Tulsa County District Attorney Steve Kunweiler.

"So this will be huge. It will be huge for victims, it will be huge for law enforcement because this takes some of the problems they have had trying to determine if someone is tribal," said District Attorney Jack Thorp.

Many Tribal members are now protesting the decision calling it an attack on sovereignty.

June 2023:

Tulsa lacks the jurisdiction to prosecute a Native American man cited by police for speeding because the city is located within the boundaries of an Indian reservation, a federal appeals court ruled.

The 10th U.S. Circuit Court of Appeals issued its decision on Wednesday, rejecting the city’s argument that the Curtis Act, an 1898 federal law passed before Oklahoma became a state, gave the city jurisdiction over municipal violations committed by Native Americans.

The court’s ruling was based on the U.S. Supreme Court’s landmark 2020 decision that found that much of eastern Oklahoma, including Tulsa, remains an Indian reservation because it was never formally disestablished by Congress. That ruling has since been expanded to include several other reservations in eastern and southern Oklahoma that makeup about 40% of the state.