Sunday, August 30, 2020

OCPA column: Different rules for different Oklahomans?


Different rules for different Oklahomans?
By Jonathan Small

The repercussions of the U.S. Supreme Court’s McGirt v. Oklahoma decision, which effectively re-established the Muscogee (Creek) Nation’s reservation, suggest Oklahomans have reason to fear we will live under two different sets of rules based on a citizen’s heritage.

The McGirt decision dealt only with criminal prosecutions and Creek land, but it is expected impact a far broader range of issues also involving the territories of the Cherokee, Chickasaw, Choctaw, and Seminole nations, or nearly half the state of Oklahoma—and perhaps more.

Those who suggest McGirt will affect only criminal prosecutions ignore the fact that tribal leaders clearly think otherwise. Muscogee (Creek) Nation Principal Chief David Hill recently confirmed to OETA that his tribe is looking at how the decision may expand tribal authority in taxation and regulation. Choctaw Nation Chief Gary Batton has similarly said his tribe has “identified five broad categories of questions we see arising from McGirt: law enforcement, judicial, taxation, regulatory, and Indian child welfare.”

Those aren’t minor issues.



At the same time, four Cherokee Nation citizens have filed a class action lawsuit asking the court to order cities, counties and the state of Oklahoma to return money collected from prosecution of American Indians, saying imposition of those fines exceeded state and local authority over tribal citizens.

It’s reasonable to expect similar challenges will be filed on bigger issues, such as payment of routine state and local taxes by tribal citizens living in reservation areas. Due to McGirt, the 7th Circuit Court of Appeals recently ruled the Oneida Reservation in Wisconsin is not subject to fees and regulations imposed by the Village of Hobart to hold a festival.

In addition to shifting regulations, Oklahomans have reason to worry about disparate legal standards for non-tribal members under tribal jurisdiction. Consider a recent lawsuit filed by Shane Jett, who served most of a decade as CEO of the Citizen Potawatomi Community Development Corporation. Jett, a Cherokee Nation member, sued in tribal court, saying Citizen Potawatomi Nation Chairman John “Rocky” Barrett fired Jett in violation of due-process rights guaranteed by the Citizen Potawatomi Nation’s constitution. Jett claims he was fired for opposing a mask mandate at a Shawnee council meeting, even though Jett did so as a private citizen on his own time. Jett produced audio to back up his version of events.

Yet tribal court quickly tossed the case. Jett is now seeking to have the issue heard in federal court. That may become a common pattern in Oklahoma as citizens work their way through the legal fallout of the McGirt decision. At the same time, without a predictable and consistent, statewide regulatory and legal system, the challenge of attracting new business and investment to Oklahoma will only grow exponentially harder.

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

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