Tuesday, December 15, 2020

CN Upgrades Criminal Codes, Redirects $10M for Law Enforcement, Courts, Prosecutors after McGirt Decision

The Cherokee Nation is updating its criminal code and proposing to immediately repurpose $10 million from its general budget to make necessary upgrades in the wake of the U.S. Supreme Court McGirt ruling. 

The Council of the Cherokee Nation on Monday unanimously approved overhauling the Cherokee Nation criminal code based on recommendations from the Commission for the Protection of Cherokee Nation Sovereignty. Many of the Cherokee Nation’s criminal laws were updated and made consistent with existing Oklahoma laws. Other updates were made to ensure that any cases dismissed by state courts as a result of the decision in McGirt can be refiled in the Cherokee Nation’s courts.

“As we celebrate the McGirt decision and our sovereignty, we must also remain prepared to continue to protect public safety while addressing new legal challenges. Updating our criminal code will improve law enforcement on our reservation, and ensure that we are ready when criminal cases are dismissed in state courts,” said Cherokee Nation Principal Chief Chuck Hoskin Jr. “We also want to maintain order and consistency and avoid any confusion among the public and law enforcement officers.”

The revised Cherokee Nation criminal code makes it a felony to commit domestic abuse against a pregnant woman, and updates assault/battery domestic abuse laws.

Other criminal code updates include clarifying penalties and fines for felonies and misdemeanors committed in the Cherokee Nation reservation.

“There’s a lot at stake after this court ruling and it’s important our Cherokee Nation laws reflect these changes and challenges ahead,” said Tribal Councilor Mike Shambaugh, who is on the commission and is a police chief in Jay, Okla. “Our goal is to maintain our sovereignty and close jurisdictional gaps while ensuring continued justice.”

Cherokee Nation criminal code regarding the Controlled Substance Act is now more consistent with state law, so tribal citizens will not be penalized for acts that are legal under Oklahoma law. This will help tribal citizens and business owners in the cannabis industry avoid tribal criminal prosecution if they are fully complying with Oklahoma law.

Also on Tuesday, the Executive and Finance Committee of the Tribal Council voted to modify the operating budget by allocating $10 million in additional spending on law enforcement, prosecution, and for the tribal courts.

“This funding is necessary to ensure that the Cherokee Nation’s government is prepared to deal with the increase in criminal cases expected as a result of the McGirt decision,” Attorney General Sara Hill said. “The Cherokee Nation takes seriously its responsibility to address jurisdictional or enforcement gaps on the Cherokee Nation’s reservation, and is committed to doing so in a way that protects and preserves our hard-fought sovereignty.”

The spending increase will be considered by the full Tribal Council next month.

The U.S. Supreme Court ruled in July that the Muscogee Creek Nation’s reservation is intact and therefore by extension the Cherokee Nation’s reservation is also intact.

The Commission for the Protection of Cherokee Nation Sovereignty was established by Principal Chief Hoskin after the McGirt ruling to make recommendations on expanding the Cherokee Nation courts, attorneys and Marshal Service. In addition to these changes, the commission recommends calling on Congress to allow for mutual intergovernmental agreements, or compacts, to give tribes and the state of Oklahoma the option to cooperate on criminal cases. This approach would keep 100 percent of McGirt, respects tribal self-determination by creating new powers for tribes to compact, and would authorize an opt-in mechanism for the state and tribes without mandating any changes or diminishing sovereignty over reservations.

The Cherokee Nation reservation covers nearly 7,000 square miles, with law enforcement policing that tribal land and the attorney general’s office expecting thousands of new criminal cases in the coming year.

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