Skip to main content

Who Speaks for Oklahoma? Setting the Scene for Coming Tribal Negotiations

The situation in Oklahoma is fluid after the Supreme Court’s consequential decision in McGirt v. Oklahoma. There are many moving parts. Independent state officials apparently have different goals and motivations, and legal uncertainty abounds. Against this background, it can be difficult to track what is going on and to sort through leaders’ public statements and actions. Let’s cut through some of the clutter.

First, a brief recap: a monster everyone agrees is guilty as sin had his conviction for raping and forcibly sodomizing his wife’s 4 year old granddaughter overturned by the US Supreme Court. In so doing, a slim 5-4 majority on the Court ruled that the Muscogee (Creek) reservation, encompassing nearly all of the City of Tulsa, is still in existence because the US Congress never formally “disestablished” the reservation when it admitted the State of Oklahoma into the Union more than 100 years ago. As a result, Oklahoma no longer has jurisdiction to prosecute a slew of serious crimes in at least the Creek lands, and likely the other tribal lands covering the entire eastern half of the state. Instead, those crimes will be prosecuted by the federal government.

As I noted last week, while the transformation of the criminal justice system in the state is significant, the consequences for state and tribal regulatory authority and civil jurisdiction may be more far-reaching and long-lasting. Most Oklahomans who have taken an interest in this issue are focused on this aspect of the ruling, asking questions like, “Do I still own my house?” (Spoiler alert: yes, you do. But whether and how that property will be taxed may be up in the air depending on whether you are a member of a tribe and what the tribes do next).

Hours after the decision was announced, Attorney General Mike Hunter, whose office represented the State throughout the litigation that led to this result, issued a joint statement with the Five Tribes informing the public that even as he was doing battle with the tribes in court, he was privately brokering “an agreement” with them, which would be forthcoming. Days later, the AG released a bare bones “Agreement in Principle,” claiming to have the support of the Five Tribes. The Agreement laid out broad principles to guide Oklahoma’s congressional delegation in crafting legislation to address criminal and civil jurisdictional matters going forward. The Agreement in Principle also urged that any issues left unresolved through legislation be addressed via intergovernmental agreements between the tribes and the state, and that such negotiated resolutions of issues be encouraged in the text of the legislation.

Shortly after this document was made public, likely in response to concerns raised by prominent tribal citizens, two of the tribes backed away from the Agreement. The Seminole Chief claimed that he never agreed to the terms and even that he was not involved in the negotiations. (The AG is subject to the Open Meetings Act, it shouldn’t be hard for a reasonably enterprising reporter to determine who is telling the truth, here. They can’t both be.). The Creek Chief gave a cryptic statement implying that his understanding of the Agreement was that it did not govern the Creek Nation, as such, but merely laid out principles for the State’s relations with the Five Tribes generally. He also asserted the Creek Nation does not believe federal legislation is necessary.

So what are we even talking about here? A couple things are in play and seem to be getting confused with one another.

There are three—and only three—ways the numerous open jurisdictional questions can be resolved going forward: (1) an act (or acts) of the US Congress, (2) via government-to-government agreements between the state and the Tribes, and/or (3) through litigation. And it could be a mix of the three.

In theory, the most direct, least disruptive way to proceed would be for Congress to simply formally do what it clearly intended to do more than 100 years ago: disestablish the reservations. This would return us to the way the state has operated for all of its history, and tribal sovereignty would be preserved in the form it took until now, which was considerable. As I noted last week, though, the likelihood of this Congress putting Humpty Dumpty back together again is, at least in the short term, virtually nil. That does not mean state officials shouldn’t raise Cain about it and that Oklahoma’s congressional delegation should be let off the hook. All but one of them was in the majority party with an ally in the White House for two years while this issue was litigated, and the potential consequences well-known. Did any of them introduce legislation that would head off this jurisdictional crisis? Browsing through, I found none. I’m sure they’ll be in touch if I missed something.

Note that the AG has not used words like “compact” or “intergovernmental cooperative agreement” to describe what he is pursuing with the tribes. This is for good reason—he has no authority under Oklahoma law to do so (at least outside of the narrow context of direct relations between his Office and the tribes). In reality, the AG has reached an “agreement” (now in doubt) about what should be proposed to Oklahoma’s congressional delegation. But he has presented what he is doing as though it will usher in a global settlement of all outstanding issues. In short, the AG is acting as though he speaks for the State. He does not.

An intergovernmental cooperative agreement or compact is a government-to-government agreement between the State of Oklahoma and a Tribe or tribes. In such a scenario, there is little doubt that Oklahoma’s constitution and statutes charge the Governor with negotiating on behalf of the State. Legislative leadership has challenged the Governor’s authority to unilaterally renegotiate separate gaming compacts with the tribes, but that case turns on idiosyncrasies with the way Oklahoma’s gambling laws are constructed, not on the Governor’s constitutional and statutory authority as the state’s chief executive. That is, even if the Governor loses in the gaming spat, he remains the state official constitutionally and statutorily designated as the one responsible for intergovernmental relations. 

(Note: late yesterday, after this article was submitted for publication, the Oklahoma Supreme Court ruled against the Governor. In short, though the Court claimed the case “implicates the core notion of our constitutional structure: separation of powers,” the opinion actually turns, as noted above, on whether the Governor authorized gaming made illegal by Oklahoma’s gambling laws. The Court acknowledged that the Governor is the proper party to negotiate on behalf of the state, it just found that what he negotiated included unauthorized provisions).

Incidentally (or perhaps not), the AG supplied the legal reasoning for the legislators’ lawsuit in an Attorney General Opinion released earlier this year, before McGirt was decided, but after it was foreseeable what the result could be. The AG also filed a brief supporting the legislative leaders against the Governor. This would probably be a good place to point out that the Attorney General was by far the largest recipient of tribal political donations of any elected official in the state during the last election cycle. No one has ever accused the tribes of being politically unsavvy.

In any event, the state appears as though it will now engage in negotiations with the Five Tribes over every jurisdictional jot and tittle thrown into doubt by McGirt. Those negotiations will be—and should be—led by the Governor, not the Attorney General or Legislature. In a welcome sign, the Governor has indicated he will engage in a deliberative process aimed at protecting the public interest, rather than rushing to cut a pre-baked, backroom deal. Of course, he should take in all perspectives and has indicated he will do so. Post-negotiation state legislation may be necessary to carry into effect what the Governor agrees to. But ultimately, the State’s success or failure in these talks are on his shoulders.

What these negotiated agreements will look like could be as varied as the issues they seek to resolve. Or there may be no agreements at all. We shall see. If not resolved by agreement or new federal law, the State will find itself in endless litigation over all the open questions created by the sudden, imposed reservation-izing of half of its territory. Litigation will likely proceed even if negotiations are successful because it is not clear some of the issues McGirt raises can be bargained away by the tribes, but rather implicate individual rights of tribal members. Keep in mind that all this was launched by an individual’s appeal of his conviction; the tribes didn’t initiate this (but they sure came in strong once the stakes became clear).

Ironically, the figure who will primarily litigate these matters for the State will be the Attorney General. Perhaps he should stay in his lane and prepare for the work ahead. Work that he is constitutionally empowered to do.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at 

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.

Popular posts from this blog

Dear GT Bynum, Let the Children Play

I live close to a large City of Tulsa park that has a golf course, walking trail, green spaces, and a couple of playgrounds. My (almost) three-year old son loves the playgrounds, and often begs us during walks in our neighborhood to detour to “for-chun” (LaFortune Park). This seemingly innocent request can become a hassle when we don’t really have time, but we indulge him as much as possible. It’s good for kids to play outside, especially with other kids they might not otherwise come into contact with. But sometimes we have to contend with an upset toddler who doesn’t understand why we can’t go to the playground right this minute. I’m not complaining, every parent of young kids deals with similar stuff. But during the COVID lockdown, we’ve had to contend with an altogether different LaFortune Park situation with our son. As part of the mayor’s shelter-in-place overkill, all city-owned playgrounds were closed “ indefinitely .” This wasn’t a guideline or suggestion, the city meant busine

When It Comes to the Cox Center, “What if I Get to Meet a Movie Star?” Isn’t Good Enough

In a recent   post , 1889 Institute expounded on the fiduciary duty of elected officials “to act in the best interest of the people of the state as a whole,” a “high duty, executed as a public trust … wherein one puts the people’s interest above one’s own.” This fiduciary duty must not stop with elected officials. Once an elected body or an elected official – the legislature, a city council, the governor, or a mayor – has taken final action, the faithful implementation of each enacted law, policy, or program falls to an army of bureaucrats. Thus, a fiduciary duty to execute laws and policies with diligence and integrity, tantamount to that of elected officials, must extend to government employees. Recently, I had a few moments to sit down and watch a show with my children. Unsurprisingly, my son picked a series entitled “The Stinky and Dirty Show.” I was naturally skeptical that the show would yield any real value. However, as I watched, I found myself pleasantly surprised. Each episod

COVID Inspires Tyranny for the "Good" of Its Victims

The Christian philosopher, C.S. Lewis, once said, "Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies." The moral busybodies C.S Lewis warns of reminds me of those who would have Americans give up their liberty to combat COVID-19.   A recent Oklahoman op-ed compared COVID-19 to World War II, stating that the number of deaths from COVID-19 is approaching the number that died fighting for this country and the freedoms it protects. This comparison is, of course, nonsense. This suggests that a virus with a high survivability rate is an equivalent threat to the Nazi and Japanese regimes that brutally murdered millions. The piece uses wartime rationing of meat and cheese, a sacrifice necessary to ensure men on the front lines had adequate nutrition, to justify Americans accepting counterproductive lockdowns in exchange for additional stimulus c

The High Duty of Elected Officials and Ways They Fall Short

With an election just completed (the alleged voting, anyway), a legislative session coming up, constant talk of spending to offset the impacts of COVID-19, and elected officials trying to mandate our way out of a disease, the duty of elected officials in their official positions is worth considering. The 1889 Institute recently published a booklet for state lawmakers that discusses various issues and possible solutions. Included in that booklet is a short discussion of the central duty of elected officials, which is expanded here. What is the central, over-arching duty of an individual after having been elected to public office? Public oaths of office give a strong hint, and the Oklahoma Constitution is a good place to start. Article XV includes the oath of office, which states that an Oklahoma public official swears to “support, obey, and defend” the constitutions of the nation and the state, that the official will not take bribes, and that the official will discharge duties as best