Tuesday, July 28, 2020

OCPA column: One-sided negotiation?

One-sided negotiation?
By Jonathan Small

Imagine a future where you face new regulations on everything from criminal justice to environmental oversight to taxation. Now imagine a policy response is being negotiated, but no one representing your interests is allowed in the room. Instead, the entire negotiation is between people on the other side of the issue and their employees.

Sounds crazy, right? Unfortunately, that appears to be occurring today as Oklahoma grapples with the U.S. Supreme Court’s decision that tribal reservations were not formally abolished when it comes to criminal jurisdiction (which opens the door for increased tribal authority in a wide range of areas).

To reach this point, many prominent state officials weighed in and suggested reestablishment of reservations would not be a big challenge in Oklahoma—even though the court reaching that decision would also involve vacating Jimcy McGirt’s prison sentence. McGirt was convicted of molesting, raping, and forcibly sodomizing a four-year-old girl.

Those filing a brief in McGirt’s case, in which McGirt’s attorneys argued he could not be tried in state court because he is Seminole and Creek reservation boundaries remain in place, included U.S. Rep. Tom Cole, former Gov. Brad Henry, former state Senate leader Glenn Coffee, former Oklahoma House Speaker Kris Steele, former Attorney General Mike Turpen, former state House Speaker T.W. Shannon, former U.S. Rep. Dan Boren, and others. All signed their name to a brief submitted by the Chickasaw Nation and the Choctaw Nation.

What largely united this group was not doubt about McGirt’s guilt, but ties to tribal governments who stood to gain enormous power over half the state if McGirt’s challenge was successful. Most supporting that petition have been either directly employed by tribal entities, received tribal contracts, or were beneficiaries of tribal largess to various causes.

Notably, some of those same individuals are now disregarding their own arguments.

The aforementioned brief argued any resulting issues created by a ruling in favor of McGirt could be handled by state-tribal compacts. But now Cole has announced he will file federal legislation that appears to preserve tribes’ increased control without new compacts. And that legislation will be based on an agreement devised by Attorney General Mike Hunter, who according to a 2019 review by CNHI was the state’s largest recipient of tribal campaign donations in 2017-2018.

This agreement could affect all Oklahomans, tribal and non-tribal alike, but it appears there has been little participation by any official who is not beholden to the tribes in some fashion. The proposed agreement not only cuts out substantial non-tribal citizen input, but also had limited input from more than 30 smaller tribes in Oklahoma.

Oklahomans deserve honest negotiations, and that requires Gov. Kevin Stitt to lead the process. We cannot put our faith in other officials when there is reason to wonder which side of the negotiating table they represent.

Jonathan Small serves as president of the Oklahoma Council of Public Affairs.


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