Indian Country slams efforts to 'abrogate' sovereignty in wake of historic Supreme Court ruling

Thursday, August 13, 2020

By Acee Agoyo

In a major show of unity, nearly every Indian Country organization is warning of efforts to "abrogate" tribal sovereignty following a historic U.S. Supreme Court decision that's still being celebrated as a seminal win for the first Americans.

Barely a month ago, the high court confirmed that the reservation promised to the Muscogee (Creek) Nation by treaty continues to exist. Yet tribes are worried that lawmakers are already working on legislation that could undermine the landmark victory.

"We fear that any such bill could irreparably undermine the sovereignty of tribal nations across the country," the three-page letter signed by eight organizations, representing Indians nations from every region of the United States, reads.

The letter cites concerns about a "working group" convened by members of Congress from Oklahoma, all of whom have already said they intend to address a wide range of issues that were not in contention in McGirt, which only dealt with the state's "unlawful" criminal prosecutions. Despite push-back from the Muscogee (Creek) Nation, as well as the Seminole Nation and more recently the Choctaw Nation, the organizations say the legislative train is moving ahead without adequate input from Indian Country.

"Rushed legislation, even if narrowly crafted, would create a dangerous blueprint and expectation that Congress should be engaging in diminishing tribal authority—instead of restoring or preserving it," the letter states. "Such a blueprint, predicated on the court’s historic decision in McGirt, would threaten the sovereignty of all of our tribal nations, and ultimately would undermine the safety and prosperity of all of those who live within or near a reservation."

And while McGirt only affirmed the status of one reservation, its significance is already being felt. It's been used to bolster the rights of another Indian nation -- yet the Oklahoma delegation has not considered how their efforts will impact tribes elsewhere, the organizations say.

"The Court’s affirmation of sovereignty was a win for every tribal nation in the United States, as well as communities that neighbor tribal nations," the letter asserts. "As such, an Oklahoma delegation-led effort to receive input primarily from corporations with Oklahoma interests is narrowly focused and fails to consider the impact that will occur from coast to coast."

Have questions about what the SCOTUS decision in #McGirt means for Native women living on the Muscogee (Creek) Nation reservation?
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⚖️Read NIWRC's amicus brief: https://t.co/Vcx5BH5NSs #TribalSovereignty #StandWithMsvkoke @OkNaav @ATCEV1 pic.twitter.com/uu7ZRRCRkS
— National Indigenous Women's Resource Center (@niwrc) August 13, 2020

To correct the limited representation, tribes are calling on the six Republicans and one Democrat from Oklahoma to bring them to the table. Leaders from urban and rural areas must be included before any bills go forward, they write.

"Any working group tasked with discussing the realities of McGirt must and should include voices from both urban and rural reservations across the United States, where tribal leaders have succeeded in collaborating with local state governments to ensure the safety and welfare of all," the letter continues.

Without such input, the organizations plan to oppose "destructive" legislation, drafted behind closed doors and lacking transparency about whose ideas were used to develop it.

"We stand united in our pledge to work as partners and engage in conversations with any parties who wish to work together to ensure that the greater possibilities presented by the Court’s historic decision become realities," the letter reads.

"But we stand equally united in opposition to any rushed process that limits discussion, limits participants, and drives towards a calculated goal of passing destructive federal legislation," it concludes.

The letter was signed by the National Congress of American Indians, the Association on American Indian Affairs, the National Center for American Indian Enterprise Development, the Inter Tribal Association of Arizona, the Great Plains Tribal Chairmen’s Association, the United South and Eastern Tribes Sovereignty Protection Fund, the Affiliated Tribes of Northwest Indians and the Midwest Alliance of Sovereign Tribes. Altogether, the organizations represent almost every tribe in the U.S., many of whom also joined briefs in McGirt, which was released by the Supreme Court on July 9, the last day of its most recent term.

The ruling was welcomed as a huge victory by tribes across the nation. But questions quickly arose when Oklahoma Attorney General Mike Hunter (R), who had fought the existence of the Creek Reservation at all stages of the case, disclosed that he had been negotiating an agreement-in-principle that would address a wide range of regulatory, legal and business issues that weren't connected in any manner to the litigation.

Chief David Hill of the Muscogee (Creek) Nation and Chief Greg Chilcoat of the Seminole Nation immediately disavowed the effort, saying it did not reflect their views. Chief Gary Batton of the Choctaw Nation, while not overtly withdrawing from talks, also said "there is no reason to rush” legislation to address McGirt.

The Cherokee Nation also has remained at the table, with Chief Chuck Hoskin, Jr., telling Indianz.Com last month that he was committed to protecting his tribe's interests. On Thursday, amid outcry among citizens about the seemingly fast pace of discussions, he announced a new commission that will study key issues affecting the reservation in northeastern Oklahoma.

Chief Hoskin establishes @CherokeeNation sovereignty commission in wake of #McGirt decisionhttps://t.co/uq2ZWmz5fp
— Chuck Hoskin, Jr. (@ChuckHoskin_Jr) August 13, 2020

“The Cherokee Nation will continue to fight to protect our sovereignty, the Cherokee reservation, the Cherokee people and all citizens living within our Cherokee reservation boundaries,” Hoskin said in announcing the Commission for the Protection of Cherokee Nation Sovereignty, which consists of prominent citizens from political, legal and diplomatic fields.

“I signed this executive order today to put this commission in place to ensure stability and protection on our reservation lands and proposed this legislative act to secure federal funding to meet the challenges presented by the landmark United States Supreme Court McGirt decision," the chief added.

But as tribal leaders take a very determined approach to McGirt, a key member of the Oklahoma delegation is working at a much quicker pace. Sen. Jim Inhofe (R-Oklahoma), who serves as chairman of the powerful Committee on Armed Services, confirmed last week that the legislative wheels are already in motion on Capitol Hill.

"That's being done now," Inhofe said on the Road to Rural Prosperity podcast on August 5.

Road to Rural Prosperity · Episode 44- Oklahoma Senator Jim Inhofe Talks Tribal Sovereignty, Pandemic Help and Reelection

Road to Rural Prosperity: Oklahoma Senator Jim Inhofe Talks Tribal Sovereignty, Pandemic Help and Reelection

And while Inhofe said the work was being undertaken in "conjunction and cooperation with the Indian population" in Oklahoma, a letter sent from his office to stakeholders paints a different story, according to a person who has been briefed on its contents. A slew of industry interests -- from oil and gas developers to chicken farmers and even Walmart and American Airlines -- have been asked to provide input about McGirt legislation.

But Indian Country was left behind.

"Not one tribe" received the same request, the person who has been informed about the Inhofe letter told Indianz.Com.

The stakeholders were given until the end of next week to provide their responses, a speedy timeline that Inhofe also mentioned on the podcast.

"We have given them the date of the 21st of August to put together something where we can initiate legislation," Inhofe said.

"Shame on you": Lying about your tribal identity could land you in trouble on the Muscogee (Creek) Nation, whose reservation boundaries have been reaffirmed by a historic U.S. Supreme Court decision. #McGirt #HonorTheTreaties #Oklahoma https://t.co/aMHDXcvPTa
— indianz.com (@indianz) August 12, 2020

Inhofe isn't alone in leaving Indian Country behind. Oklahoma Gov. Kevin Stitt (R), who was sidelined by the attorney general in connection with the McGirt agreement-in-principle, announced his own commission last month, and stacked it with non-Indian industry interests.

"The first ones they are going to are oil and gas and agriculture," said the person closely following the drama.

Both chambers of Congress are currently out of session and lawmakers aren't due to return to work until early September, after the Labor Day holiday. Once they come back, they face a time-crunch of their own, with the November election leaving them fewer days to do business.

Yet Inhofe, in his role overseeing defense legislation, has a major opportunity to advance his priorities. The bill that funds the U.S. military is considered must pass, making it a prime vehicle should he chose to move forward with a McGirt bill.

"Any conversation aimed at determining the future of all Indian Country should be open, transparent, and allow ample time for a robust public discussion between all those affected, not just those within the boundaries of one state," the tribal organizations said in their letter to Inhofe.