A tactic increasingly used by the political left is to emphatically claim people can’t trust their senses or common sense.
In short, the message has been, “Who are you going to trust? Us, or your lying eyes?”
We’ve seen this tactic used locally in Oklahoma, in national politics, and even on the world stage.
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.
GOVERNOR STITT OFFERS ONE YEAR EXTENSION FOR CHEROKEE CAR TAG COMPACT
OKLAHOMA CITY (August 10, 2023) - Governor Kevin Stitt sent a letter to the principal chief of the Cherokee Nation with an offer of a one-year extension on their current car tag compact set to expire on August 16, 2023. The offer contains the same material terms provided in the existing compact.
But Cherokee Nation budget documents obtained by the Oklahoma Council of Public Affairs indicate that the tribe at least considered, and may have used, vehicle revenue for political activity.
The Cherokee Nation acknowledges that some money generated by its motor-tag compacts with the state of Oklahoma has been used for electoral activity, but the amount of money tribal officials say was spent and the uses made of that money differ dramatically from the amounts and uses outlined in a tribal budget document provided by a whistleblower.
The U.S. Supreme Court’s McGirt decision, which effectively declared much of eastern Oklahoma remains tribal reservation land, prompted some tribal officials to embrace separatism.
In 2021, a Muscogee (Creek) Nation official told NonDoc the difference between the Muscogee chief and the governor of Oklahoma is that one is the “head of a nation” while the other is “just the head of the state.”
That’s grandiose, at best. David Hill was elected Muscogee principal chief with 3,399 votes. Kevin Stitt was elected Oklahoma governor with 644,579 votes.
On a similar note, Cherokee Nation Principal Chief Chuck Hoskin, Jr. recently banned display of the Oklahoma flag on Cherokee property. But Hoskin’s action drew swift rebuke from other Cherokees. [see article here]
When announcing he was reversing course, Hoskin said he had “heard from many Cherokee citizens” and “the vast majority were opposed” to his flag order. Many were concerned it “further divided the state and the tribe.”
Put simply, there was a huge gap between Cherokee leadership and Cherokee citizens, most of whom do not view their home state with hostility.
It’s not shocking that gap exists. Few Cherokees are directly involved in tribal government. The tribe reports over 400,000 individuals are Cherokee citizens, but less than 14,000 voted in the last election for tribal chief. (Similar trends are also notable for the Muscogee Nation, which claims 86,100 citizens.)
Most Cherokees don’t embrace a worldview pitting them against their non-Indian neighbors and family members.
That contrasts with many comments from some tribal leaders. When the Oklahoma Council of Public Affairs called for McGirt to be reversed, which would simply ensure all Oklahomans are treated the same under the law as had been the case for the prior century, Muscogee leadership responded with “see you on the battlefield.”
The Muscogee (Creek) Nation now argues all Muscogee citizens living on the tribe’s reservation—including most of Tulsa—are exempt from state taxes. Hoskin has also indicated support for that position. If that view prevails, it could reduce state funding for things like roads and schools by more than $200 million, if not more.
As state Sen. John Michael Montgomery has noted, if tribal citizens don’t pay Oklahoma taxes “there’s a pretty compelling argument to be said: ‘Why are we still funding things in areas if they’re not going to be paying taxes on services for those areas?’”
The challenges created by McGirt extend well beyond flag displays. Rather than equal treatment, what is occurring under McGirt is different treatment based on heritage and physical location—and that disparate treatment is harming people, including tribal citizens.
Most Cherokees understand we are all Oklahomans, even if some of their leaders do not. If those Cherokee citizens’ view prevails, the challenge of working out state-tribal differences will become much easier.
Jonathan Small serves as president of the Oklahoma Council of Public Affairs.
After receiving overwhelming backlash from within the Cherokee Nation, Hoskin has now reversed course. From The Frontier reporter Reese Gorman:
Through a new executive order, Cherokee Nation Principal Chief Chuck Hoskin, Jr. has prohibited display of the state flag of Oklahoma at tribal facilities.
Hoskin’s executive order declares that the chief of staff of the Cherokee Nation shall “cause all flags of the State of Oklahoma to be removed from Cherokee Nation properties” by Sept. 1.
It’s the latest indication that some tribal officials and activists do not consider themselves citizens of Oklahoma now that the U.S. Supreme Court has ruled their tribal reservations were never disestablished, creating numerous jurisdictional questions on everything from public safety to taxation.
Oklahoma’s tribal governments have their own police forces, their own court systems, and immense wealth from casinos to pay for their public-safety responsibilities. So why did tribal entities recently seek an indirect subsidy from state government?
Lawmakers recently passed House Bill 3501, which would have required the Department of Public Safety to “recognize and act” upon a report of conviction from any tribal court in Oklahoma. Supporters said the bill would target drunk drivers, but tribal courts can issue orders regarding issues other than DUI violations, and it appears the legislation could have required state police to carry out a wide range of orders on behalf of tribal governments.
Fortunately, Gov. Kevin Stitt vetoed the bill, writing that it would have required state law-enforcement officials “to carry out tribal court adjudications, no questions asked.” That’s worth stressing because tribal courts can issue orders that might not pass legal muster in Oklahoma’s state court system.
To cite one prominent example, the Cherokee council approved an “Anti-Harassment Act” that allows tribal officials to obtain tribal-court ordered restraining orders against any individual who “annoys” officials, apparently including through social-media posts made “over time, however short.”
Park Hill (May 3rd) - Candidate for Oklahoma's Second Congressional District, Cherokee Councilor Wes Nofire, prepares to file legislation protecting life within the Cherokee reservation after reports of the U.S. Supreme Court overturning Roe v Wade:
"I am thankful this morning for the work of so many people who have spent their lives fighting as the voice of those that were never allowed to take a breath. I pray the reports are accurate and our nation is overturning the landmark case of Roe v Wade. Roe v Wade was not only the case that led to the death of so many unborn children; it also stripped away States' rights in America. I am proud to say I have every confidence that Oklahoma will do the work necessary to be abortion-free.
OKLAHOMA CITY - “McGirt is not retroactive. This is a major victory for the State of Oklahoma,” said Attorney General John O’Connor.
The Oklahoma Court of Criminal Appeals unanimously made that decision in Parish v. Oklahoma. Today, the United States Supreme Court refused to consider an appeal of that decision by Parish.
Clifton Parish was convicted of second-degree murder in the 2010 beating and shooting death of Robert Strickland in Hugo, Oklahoma. Parish sought to have the United States Supreme Court throw out his conviction, arguing that McGirt is retroactive.
His conviction is one of many convictions that will now stand, with the Supreme Court’s decision announced today.
“This is an important victory for the safety of victims, families of victims, and the people of Oklahoma,” said Attorney General O’Connor. “Victims and their families will not be required to relive their tragic experiences by testifying in new trials, or worse, seeing the perpetrators out in society."
“We are hopeful that this is the first step in having the McGirt decision overturned or clarified and limited. Even without retroactive application, McGirt has opened prison doors and let violent criminals go free," said General O'Connor.
[By Ray Carter - Director, Center for Independent Journalism] In a recent online post, Cherokee Nation Principal Chief Chuck Hoskin, Jr., mocked efforts to keep Critical Race Theory (CRT) out of Oklahoma classrooms.
“The solution in search of problem nonsense that is the ban on ‘critical race theory’ continues to sap time & energy and undermine efforts at seeking a full understanding of history and culture,” Hoskin tweeted on Nov. 26. “We’d waste less time banning unicorns.”
Hoskin’s tweet came in response to news regarding the implementation of House Bill 1775, which bans K-12 schools from teaching that “one race or sex is inherently superior to another race or sex,” that “an individual, by virtue of his or her race or sex, is inherently racist, sexist or oppressive, whether consciously or unconsciously,” and other similar concepts broadly associated with Critical Race Theory.
In touting the need for a “full understanding of history and culture,” Hoskin echoed the arguments of many CRT supporters and/or opponents of HB 1775.
Ironically, one area where Oklahoma students are seldom provided “full understanding,” according to critics, is the Cherokee Nation’s participation in chattel slavery of black people and the tribe’s participation in the Civil War on the side of the Confederacy, alongside four other tribes—the Chickasaw, Choctaw, Seminole, and Muscogee tribes.
Some experts say that chapter of history deserves much more classroom focus.
“Although there were Indigenous people who integrated states of unfreedom within their communities, as other scholars have demonstrated, these were not exactly the same structures and processes as the practice of chattel slavery. And still, some members of the Five Tribes practiced chattel slavery in their southeastern communities and later on in Indian Territory (present-day Oklahoma),” said Celia E. Naylor, professor of Africana Studies at Columbia University and author of African Cherokees in Indian Territory: From Chattel to Citizens.
“It is important for students in history classrooms, and for everyone, to understand the complexities of slavery in the U.S. and in Indigenous nations,” she said. “Without reckoning with the complexities of slavery in the past, we will continue to navigate the various iterations of the afterlives of slavery in the present day.”
A 2016 senior thesis by Olivia DeWitt at Southern Adventist University, “Red Masters & Their Black Slaves in a White Man’s War: The Five Civilized Tribes’ Relationship with the Confederacy in Light of Slavery,” highlighted how the Five Tribes’ slavery practices were strongly linked to their decision to ally with the Confederacy. DeWitt suggests history texts have too often downplayed the role of slavery within the tribes.
“History has largely ignored the enslavement of blacks by Indians before and during the Civil War, which some historians have called ‘one of the longest unwritten chapters in the history of the United States,’” DeWitt wrote.
As with the larger white population, relatively few Cherokee, Choctaw, Chickasaw, Seminole, and Muscogee individuals owned black slaves, according to records, but a substantial number of slaves were nonetheless collectively owned by members of the Five Tribes.
The Oklahoma Historical Society reports, “By the time of the outbreak of the Civil War in 1861, the tribes’ members owned approximately ten thousand slaves.”
In a 2014 article, the Atlanta Black Star reported that Cherokees “held more Black slaves than any other Native American community. By 1860, the Cherokee had 4,600 slaves.”
Among the Cherokee Nation, DeWitt found 330 of the tribe’s 13,821 members owned 2,511 black slaves.
“In lifestyle and sometimes even physical appearance, many of the slave-owning Indians were indistinguishable from white southerners,” DeWitt wrote.
The Five Tribes’ cultural embrace of chattel slavery caused them to behave differently from all other tribes during the Civil War era, DeWitt found, writing that the Five Tribes “did not have political motives and were not forced into an alliance; the issue of slavery seems to have been motivation enough to ally against the Union.”
“Out of all the tribes residing in Indian Territory, only the five slave-owning tribes chose to ally and fight with the Confederacy,” DeWitt wrote.
Following the Civil War, the Five Tribes signed treaties promising to give citizenship to their former slaves (referred to as Freedmen) and their descendants. But critics note the tribes substantially failed to live up to those treaty promises.
Marilyn Vann, president of the Descendants of Freedmen of the Five Tribes Association, credits the Cherokees with having begun to deal with the reality of the tribe’s history regarding slavery.
“Right now the tribe has a call out in order to get Freedmen people to provide historical materials to throw into a museum,” Vann said. “So I would say the Cherokee Nation is not trying to shy away from the past.”
The Cherokee Freedmen History Project is seeking historical materials, references, documents, and images to address gaps in representation and storytelling at all tribal sites.
Vann said some of the other Five Tribes continue to be far more resistant to recognizing Freedmen descendants. However, she also noted the Cherokees’ willingness to accept Freedmen is a relatively recent development.
“For so long, you had people like Chief (Chad) Smith that opposed Freedmen citizenship,” Vann said. “The attitude was kind of like, ‘We can do what we want to.’ It’s going to take time to get past those years that the treaty was not being followed.”
Smith was first elected principal chief of the Cherokee Nation in 1999 and went on to serve three terms before losing a bid for a fourth term in 2011.
Critics of HB 1775 argued the law would prevent teaching students about the history of racial strife in the United States, but supporters noted the bill explicitly authorizes teaching materials covered in Oklahoma’s state academic standards.
‘Teaching History in All of Its Complexities’
Some tribal leaders argue the U.S. Supreme Court’s ruling in McGirt v. Oklahoma, which found a reservation was never disestablished in Oklahoma and that state officials therefore cannot prosecute many crimes involving American Indian victims or criminals, is a boon to the state.
But any ruling that leads a national publication to publish an editorial titled, “How to Get Away With Manslaughter,” as recently occurred in The Wall Street Journal, cannot be viewed as a windfall. Just the opposite in fact, since it means many national companies now have good reason to cross Oklahoma off any expansion list.
But, as I have noted before, the problems with McGirt are much worse than mere reputational harm for Oklahoma. The problems are seen in the denial of justice for families in areas impacted by McGirt, which now comprise nearly half of Oklahoma.
The cases highlighted by the Journal include Shaynna Sims, who in 2015 mutilated the body of a woman who had an affair with Sims’ husband—attacking the corpse in the funeral home. Because the deceased woman was 1/64 Muscogee (the equivalent of having a great-great-great-great grandparent who was full blood) and Sims was not, the state cannot re-prosecute Sims. Neither can the tribe. And the statute of limitations has run out for federal prosecution.
The Journal also noted the case of Richard Ray Roth, who while driving drunk in 2013 struck a 12-year-old boy, Billy Lord, who was riding a bicycle. Roth didn’t stop to tend to the boy as he lay dying, and instead drove home first before returning to the scene.
The child victim in that case was Cherokee. Roth was non-Indian. In state court, Roth was given 20 years, but that sentence has been overturned thanks to McGirt. Again, tribal officials can’t prosecute Roth and the crime cannot be retried in federal court.
At a hearing last year, Billy Lord’s mother noted the insanity of the situation: “My son was tribal, but he was also a citizen of the United States. He was a citizen of Oklahoma.”
Cherokee Nation Principal Chief Chuck Hoskin, Jr., said the U.S. Supreme Court’s decision in McGirt v. Oklahoma significantly increases the number of American Indian citizens who may now be exempt from paying Oklahoma state income tax.
“There’s nothing new about the law out there on the ability of a state to tax a member of a federally recognized tribe on a reservation,” Hoskin said. “What’s new of course is the scope of the reservation (because) of the McGirt case. So, we can look to existing law and we can see that taxation doesn’t attach to individual Native Americans who live on reservations.”
Hoskin made those comments as part of a panel on state tax-and-budget issues hosted by the Oklahoma Policy Institute.
The McGirt ruling found that the Muscogee Nation’s reservation was never disestablished. The ruling has since been expanded to include the reservations of the Choctaw, Chickasaw, Cherokee, Seminole, and Quapaw, a combined area that covers nearly half of Oklahoma. The affected area is home to roughly 2 million people of which 21 percent are estimated to be American Indian.
Members of federally recognized tribes have long been exempted from various forms of state taxation—if they live and work on tribal land. Prior to McGirt, that exemption covered only a small share of individuals working on much more geographically confined areas directly owned by Oklahoma tribal governments.
But under McGirt most of eastern Oklahoma is now considered reservation land, regardless of current ownership, potentially expanding the tax exemption to many more individuals. Hoskin conceded that may result in “revenue gaps” for state government.
Because of potential exemptions for tribal members on reservation land, the Oklahoma Tax Commission previously estimated that the McGirt decision could slash Oklahoma state tax collections by $72.7 million per year from reduced income tax collections and $132.2 million annually from reduced sales/use tax collections.
However, that estimate was based on McGirt applying only to the Muscogee, Choctaw, Chickasaw, Cherokee, and Seminole tribes. The Quapaw reservation has since been declared to have never been disestablished, and similar rulings could occur for other tribes now litigating reservation status.
In 2016, Chickasaw Nation Gov. Bill Anoatubby stressed to members of Congress that there “are no reservations in Oklahoma. People from many backgrounds are neighbors who live, work, play and worship together.” Anoatubby said this created “a sense that we all share in a common destiny in our communities.”
Today, “common destiny” has been shattered by the U.S. Supreme Court’s McGirt decision, which held the Creek Nation’s reservation was never disestablished. Instead, crime victims of all races are seeing claims of tribal sovereignty translate into justice denied.
The McGirt decision dealt directly with crimes committee on Creek land, but is expected to also apply to Choctaw, Chickasaw, Cherokee and Seminole land. As a result, numerous criminals are having convictions tossed, including murders, rapists, and child abusers.
OKLAHOMA CITY (Dec. 11, 2020) – Governor Kevin Stitt announced today that the State of Oklahoma has agreed to a one-year extension with the Cherokee Nation on the hunting and fishing compact that was set to expire on Dec. 31, 2020.
“I appreciate the Cherokee Nation working with my office and the Oklahoma Department of Wildlife Conservation on a one-year hunting and fishing compact extension,” said Gov. Stitt. “This compact continues a partnership between the State of Oklahoma and the Cherokee Nation to capture federal funds for conservation efforts across our state while promoting hunting and fishing opportunities for citizens of the Cherokee Nation.”
Cherokee Nation Principal Chief Chuck Hoskin Jr. signed the compact extension on Thursday in Tahlequah while Gov. Stitt signed Friday morning in Oklahoma City.
“Extending the Hunting and Fishing Compact is a victory for Cherokee citizens, reminding us of our inherent right to hunt and fish on our land just as our ancestors have done for countless generations,” Chief Hoskin said. “This extension provides Cherokee citizens living in Oklahoma an opportunity to hunt and fish not just within the Cherokee Nation reservation, but in all 77 counties of this state. The compact is also good for the state by providing a financial boost to wildlife service programs. I commend the state and Gov. Stitt for working to continue this important agreement.”
The renewal provision in the Tribes’ gaming compacts with Oklahoma is not ambiguous. Under that provision’s plain language, the compacts will renew automatically when they expire on January 1, because the provision’s sole condition precedent for automatic renewal is unquestionably satisfied. Each of the contrary arguments I have seen to date simply cannot be squared with fundamental principles of contract interpretation.Without offering support or analysis for his position, Governor Stitt has repeatedly and publicly rejected renewal, instead choosing to criticize Tribes for not working on a new compact with him and insisting the current compacts terminate and falsely declaring Tribal gaming unlawful in 2020.
