Friday, August 25, 2023

State Rep. Olsen: Issues with SB26X and two-tiered system of unequal justice

Issues with SB26X
By Rep. Jim Olsen

The Legislature recently voted to overturn the governor's veto of Senate Bill 26X, which effectively gives another year for the tribal compacts to be negotiated.

It would be easy to look at this issue as pretty simple. The tribes just want another year to negotiate the compacts. Just give them another year, right? What's the big deal?

Hasn't the Cherokee Nation been very generous to our area, helping with schools, bridges, roads and numerous other community projects? Absolutely yes, to the tune of tens of millions of dollars!

Doesn't it behoove us to seek collaboration with the various tribal nations for the benefit of us all? Of course it does!

However, I have found this issue to be a little more complicated than I had at first realized, as there are several legal or constitutional issues with voting for this veto override.

There is a good chance that the Oklahoma Supreme Court will declare this bill to be unconstitutional.

First, we passed it during a special session, meaning that any bill heard during the special session must be related to the topic originally referenced in the call, as required by our state constitution. The call of the special session was related to the Fiscal Year 2024 state budget.  The argument for the call being related to the compacts is that the outcome of the vote on the bill could have a fiscal impact. However, almost every bill we vote on has some sort of fiscal impact. Therefore, if fiscal impact means that it is germane, then germaneness as a requirement for a bill to be included in a call for special session loses any meaning whatsoever.  I believe addressing the compacts during a special session for the budget is a stretch at best.

Secondly, the constitution specifically designates these negotiations with tribal nations to the governor. The Legislature affirmed this in 2014 when we put into statute that the governor is responsible for conducting these negotiations.

In the immediate sense, it is possible for the Legislature to change the statute. However, there is a proper way to change existing laws, rather than simply ignoring it for the sake of another law.

If we want to change statute, we must either amend the existing statute or add the statement "notwithstanding other provisions of law," neither of which was carried out prior to the passage of SB26X.

The issue that overshadows everything else is that the Oklahoma Constitution assigns the responsibility of negotiations with the tribes to the governor, not the Legislature, the Judiciary branch or any other part of our state government.

Every two years since I joined the House in 2018, I have affirmed an oath to support and defend the U.S. Constitution and the Oklahoma Constitution. If I knowingly defy our state constitution, I have violated my oath of office, and this is something I cannot and will not do.

In addition to the direct constitutional issues, there are other issues with the compact agreements that the tribes are bringing forth.

They argue that the phrase "Indian country" should be used in these compacts. What's the problem with that? The issue is that this brings us closer to a two-tiered system of law in Oklahoma. This has been expressly advocated in some of the legal briefs from the tribes in various court cases and is expressed in the following court cases:

Alicia Stroble, a member of the Muskogee (Creek) Nation who lives in Okmulgee, argues that she is exempt from Oklahoma state taxes because she is a tribal member living in Indian Country.

Justin Hooper, a member of the Choctaw Nation, argues that he is exempt from paying a $150 speeding ticket within the City of Tulsa because he is a tribal member.

We've also seen that under the new "plate pay" system by the Oklahoma Turnpike Authority, tribal members with unregistered tribal tags are not in the OTA's system and thus cannot be charged for using turnpikes. One vehicle with a Cherokee Nation tag has reportedly failed to pay $670 in tolls since May 15. Should they be exempt because of their tribal affiliation?

If things keep going in this direction, the implications of this two-tiered system would eventually be even more extensive. We must maintain equal justice in Oklahoma.

Rep. Jim Olsen represents District 2 in the Oklahoma House of Representatives, which includes portions of Seqouyah County.


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