House rejects extra funding to help tribal courts after McGirt ruling

Rep. Tom Cole, R-Okla., said tribal courts “are spending tens of millions of dollars that none of them budgeted for,” because of the increased caseload as the result of a Supreme Court ruling last year on tribal jurisdiction. But his proposal to add $154 million to the Bureau of Indian Affairs budget to help with that surge in cases failed. (Photo courtesy House Rules Committee)

WASHINGTON – The House this week rejected a proposal that would have added $154 million to the Bureau of Indian Affairs budget to help tribal courts cope with an influx of cases after a 2020 Supreme Court ruling that expanded tribal jurisdiction.

The extra funding was proposed by Rep. Tom Cole, R-Okla., as an amendment to an appropriations bill that included fiscal 2022 funding for the departments of Interior, Labor, Agriculture, Health and Human Services and more. Cole’s proposal would have offset the increased funding for BIA with cuts to environmental programs.

That amendment, one of more than 200 proposed for the appropriations bill, was rejected Tuesday in a group with 40 other amendments offered by Republicans – an outcome Cole had predicted in the Democrat-controlled House.

“We may or may not prevail, but it’s really important that the discussion continues,” Cole said before Tuesday’s vote. The overall appropriations bill passed 219-208 Thursday on a straight party-line vote.

Cole’s amendment was aimed at helping tribes in the wake of McGirt v. Oklahoma, a 2020 Supreme Court ruling that said most of eastern Oklahoma remains “Indian country” under 19th century treaties that have never been rescinded, limiting the reach of state courts there.

Related story

The McGirt decision, although welcomed by the tribes, created an unanticipated expense for tribal courts. As a result, tribes have been looking to the federal government for more money to improve tribal judicial infrastructure.

“The tribes are spending tens of millions of dollars that none of them budgeted for, and this is not their obligation,” said Cole, a member of the Chickasaw Nation. “This is a federal government trust responsibility on Indian land.”

David Hill, principal chief of the Muscogee Nation, in testimony to the House Natural Resources Committee last month, said the Muscogee Nation had taken steps to respond to the jurisdictional changes wrought by McGirt and urged the federal government to do its part.

“However, there remains a critical role for the federal government in building capacity to manage the long-term post-McGirt workload,” said Hill. “The McGirt decision does not change the trust obligation or create any new federal responsibilities, it magnifies the systemic lack of investment.”

The McGirt decision has drawn attention to Native American treaties that were never disestablished by Congress. The Treaty of 1866 ended slavery in the Cherokee Nation and granted freed slaves the rights of native Cherokees.

Chuck Hoskin, principal chief of the Cherokee Nation, testified to the House Financial Services Committee on Tuesday about the Cherokee Freedmen and the issues that Freedmen have faced in Native American communities.

“We are on a path of reconciliation, but we need to do more than acknowledge the legal principle of equality – we must seek to embrace the spirit of equality each day,” Hoskin said in his prepared testimony. “Because no nation can truly prosper when any of its citizens are victims of discrimination.”

Marilyn Vann, president of the Descendants of Freedmen of the Five Tribes Association, testified at that hearing that the tribe has an obligation to hold up its end of the treaties they made with the Freedmen.

“Just as the U.S. Supreme Court determined the U.S. government did not have a unilateral right to break Article 3 of its 1866 treaty agreement with the Muscogee (Creek) Nation, the tribes do not have a unilateral right to remove treaty rights from the Freedmen,” Vann told the committee.

Gaylord News is a reporting project of the University of Oklahoma Gaylord College of Journalism and Mass Communication. Cronkite News has partnered with OU to expand coverage of Indigenous communities.