A pair of conflicting Supreme Court decisions over the past few years about how much authority the state of Oklahoma has to prosecute some crimes committed on Native American land means Congress will likely to have step in.
In a June ruling, Oklahoma v. Castro-Huerta, the high court ruled that agencies at the federal and state levels held concurrent jurisdiction over prosecuting non-Natives for crimes committed on Native lands. It’s a topic that affects many people in the Sooner State where, according to the Supreme Court’s 2020 McGirt vs. Oklahoma decision, about 43% of Oklahoma is now considered “Indian Country.”
The Castro-Huerta decision, in fact, modified its McGirt ruling from just two years before. The latter decision had gone even further in stating that much of the eastern part of Oklahoma, including the city of Tulsa, should be considered Native American lands.
The pair of Supreme Court rulings leave many issues unresolved after decades of law built around the principle that tribes have the right to govern themselves on their own territory.
Native American members of Congress
Congress holds the power to change federal law over who can prosecute major crimes committed on tribal land. Before that happens, though, tribal authorities in Oklahoma and the state government must negotiate the details since they’re the ones directly affected.
The issues arise as a growing number of Native American candidates appear poised to win elections in November or to get a promotion by voters from their current positions.
In Oklahoma, Republican Rep. Markwayne Mullin, a citizen of the Cherokee Nation, is highly favored in the Nov. 8 open-seat Senate race. Mullin faces former Rep. Kendra Horn, who held an Oklahoma City-based House seat for a single term from 2019 to 2021. The former House colleagues are running for the final four years of Republican Sen. Jim Inhofe’s term. Inhofe is set to resign his seat on Jan. 3, 2023, when he will be 88.
Mullin would be the first tribal citizen to win in the Senate since Republican Sen. Ben Nighthorse Campbell of Colorado retired in 2005. The only other tribal citizens in the Senate were Robert Owen, an Oklahoma Democrat who was part-Cherokee on his mother’s side, from 1907 to 1925; Senate Majority Leader Charles Curtis, a Kansas Republican of Kaw, Osage, and Potawatomi ancestry who was vice president under President Herbert Hoover from 1929 to 1933; and Sen. Hiram Revels of Mississippi, who was of Lumbee ancestry. Revels was elected to the Mississippi legislature to the Senate as a Republican to represent Mississippi in 1870 and 1871 during the Reconstruction era, where he was the first black person to serve in either chamber of Congress.
Across the Capitol, Rep. Mary Peltola, an Alaska Democrat, recently made history when she won an August special election to replace 49-year GOP Rep. Don Young in the state’s lone House seat. Peltola is the first Alaska Native in Congress. Peltola won Alaska’s first-ever ranked choice election last month, with the vote split among Republican Sarah Palin, the Frontier State’s former governor and the 2008 GOP vice presidential nominee, and businessman and tech executive Nick Begich III. The same group of candidates will face off Nov. 8 for a full, four-year term in which Peltola is favored to win by political handicappers.
Adding to the tally, Rep. Sharice Davids (D-KS) in 2018 made history as the first openly LGBT Native American elected to Congress, defeating an incumbent Republican. Redistricting has made her seat, the 3rd Congressional District covering the Kansas City suburbs, more competitive. Nevertheless, under the new lines, President Joe Biden would have beaten former President Donald Trump 51.2% to 46.7%. Davids, a member of the Ho-Chunk Nation of Wisconsin, on Nov. 8 faces former state Republican Party Chairwoman Amanda Adkins, whom the congresswoman beat in 2020.
And if Republicans win the House, Rep. Tom Cole (R-OK), a Chickasaw Nation citizen, will be in the position to become the chairman of the House Rules Committee, which decides the parameters of House floor debate for legislation and is a GOP leadership position. Cole also has a high-ranking position on the House Appropriations Committee, which decides where federal dollars should be spent, including on Native American communities.
The potential to make landmark strides for Native representation in government will also be on display in November when the House Rules Committee is slated to hold a hearing on whether to grant the Cherokee Nation a delegate seat in Congress. Supporters say doing so would be the proper way to honor a 187-year-old treaty between the tribe and the federal government.
In 1835, U.S. government officials and citizens of the Cherokee Nation signed the Treaty of New Echota, which ushered the removal of the Cherokee people from their land east of the Mississippi River in the mass exodus referred to as the Trail of Tears. That same treaty also included a little-known provision that allows the Cherokee Nation a delegate in the House of Representatives “whenever Congress shall make provision for the same.”
Native Americans in state politics
Congress isn’t the only political venue in which Native Americans have become more active. In Oklahoma, tribal leaders are criticizing Republican Gov. Kevin Stitt over his opposition to the 2020 Supreme Court McGirt decision, bolstering tribal sovereignty in the state’s eastern third.
Stitt’s grievances with the McGirt decision arose because the decision also voided the state’s criminal jurisdiction in a significant portion of the eastern part of Oklahoma when an arrest involves a member of a federally recognized tribe. That meant only federal law enforcement or tribal authorities could legally handle such cases on land deemed as “Indian Country.”
In budget submissions for fiscal 2023, the Justice Department told Congress in April that the McGirt fallout left the FBI‘s Oklahoma City field office with “thousands of Indian Country cases, whereas previously the field office investigated approximately 50 criminal cases a year involving Native Americans.”
Oklahoma has the second-highest population of Native American residents, just over 500,000, out of all 50 states, behind only California, according to U.S. Census data.
The McGirt case led the state to file dozens of legal challenges seeking to weaken or peel back provisions of the decision. That prompted a sharp rebuke from tribal leaders in the state against Stitt, who is also a citizen of the Cherokee Nation.
The state ultimately prevailed in getting the high court justices to take up Oklahoma v. Castro-Huerta this summer, a case that again came down to a 5-4 ruling that helped alleviate some of Oklahoma’s qualms by limiting the scope of its decision from two years prior.
While the Cherokee, Chickasaw, Choctaw, Creek, Seminole, and the rest of the state’s nearly 40 federally recognized tribes all maintain their sovereignty granted in McGirt, Stitt’s legal challenges prompted leaders of the Five Tribes (formerly known as the Five Civilized Tribes) to endorse Stitt’s Democratic opponent Joy Hofmeister in what’s looking now like a closer-than-expected governor’s race in a deep-red state.
Hofmeister, a Republican-turned-Democrat who has worked as the Oklahoma superintendent of public instruction since 2015, is also breaking norms after two public polls emerged showing a surprisingly tight race between her and Stitt in the deep-red Sooner State.
One late September poll by Amber Integrated showed Stitt had a 3-percentage-point lead over Hofmeister, 47% to 44%. Meanwhile, a SoonerPoll conducted between Oct. 3 and Oct. 6 showed Hofmeister with nearly a 4-point lead over Stitt.
In a sense, a close statewide race shouldn’t be so surprising. In 2020, former President Donald Trump crushed President Joe Biden in Oklahoma 65.37% to 32.29%, winning all 77 of the state’s counties. But the results came strikingly close in the state’s most populous county, Oklahoma County, which contains roughly 20% of Oklahoma’s total residents.
Trump, who has endorsed Stitt, beat Biden by a narrow 49.21% to 48.08% margin in Oklahoma County, with its relatively low cost of living making it an increasing destination for young families, professionals, and others moving into the state. And that was a considerable shift left in Oklahoma County from the 2016 presidential race, when Trump won 51.58% in Oklahoma to Democratic nominee Hillary Clinton’s 41.18%.
In response to recent polls, Stitt released his own internal polling that showed him with a hefty 15-point advantage over Hofmeister. But although local surveys depict a tight gubernatorial race, the rest of the state’s high-profile congressional seats lean solidly Republican.
What remains to be seen is whether the nearly half-million residents represented by the Five Tribes will be swayed by the Hofmeister endorsement. Tribal leaders are hedging their bets that it just might.
