Ray Carter | October 23, 2020
Officials warn court decision will drive business out of Oklahoma
Warning that Oklahomans face “endless” litigation and a mishmash of regulations that will drive businesses and jobs away from Oklahoma, a state commission is calling for action to provide consistent and fair regulatory treatment of all Oklahomans following a recent U.S. Supreme Court decision.
“At stake is whether we will continue to be One Oklahoma, or whether we will take steps backward, toward two parallel societies, each subject to different rules and each denied the opportunity to achieve a whole greater than the sum of the parts,” states a report by the Oklahoma Commission on Cooperative Sovereignty, a group formed by Governor Kevin Stitt to explore the effects of the U.S. Supreme Court’s ruling in McGirt v. Oklahoma.
In McGirt v. Oklahoma, the U.S. Supreme Court held that the Muscogee (Creek) Nation’s reservation was never disestablished. While the ruling applied only to Creek land and questions of criminal prosecution under the federal Major Crimes Act, its precedent and basis are expected to result in application to numerous other issues, such as taxation and regulation, and also include the land of four other tribes—the Choctaw, Chickasaw, Cherokee, and Seminole nations—whose combined territory includes most of eastern Oklahoma.
The commission warned the repercussions of the McGirt ruling are substantial.
“This issue is not academic; it is foundational,” the group’s report stated. “Clear jurisdiction of governance within geographic boundaries controls everything, including, but not limited to, the civil and criminal courts, taxation, regulation, property ownership, and the provision of all public services, including education, transportation and infrastructure, public safety, environmental protection, health, and human services.”
Stitt and commission chair Larry Nichols, co-founder of Oklahoma City-based Devon Energy, warned that both American Indian and non-Indian citizens will face negative repercussions if officials do not adopt uniform, statewide policies that equally apply to all Oklahoma citizens regardless of heritage or location.
“People hate uncertainty,” Nichols said. “Businesses hate uncertainty.”
He said employers are not going to operate in Oklahoma if they cannot predict the rules and regulations that will be applied to them or what entity will be in charge of enforcement.
“If you don’t know what the rules are, you’re going to build that plant in some other state,” Nichols said. “That will be to the detriment of everybody, to the tribes as well as the state—to the entire state. Because without those common rules, without that certainty of knowing what the rules are, we will drive business away. And that hurts the tribes and everybody the same.”
“As governor, I represent the members of all 39 tribes as well as all four million Oklahomans,” said Stitt, who is Cherokee. “That’s why one set of rules is essential to us becoming a top 10 state. We need to protect the social and economic fairness that we’ve all enjoyed as a state for the last 113 years. Can you imagine what would happen over the next 113 years if we had 39 different sets of rules?”
Without guidance via new federal legislation, or some form of unified state-tribal agreement, Nichols said the problems created by the McGirt ruling will instead be addressed through “endless litigation that would take us a decade and create tremendous uncertainty in the process.”
“We don’t want endless litigation,” Stitt agreed. “We don’t want to be divided as a state.”
The commission report endorses five broad principles its members said should guide state-tribal efforts in the years ahead. Those principles include providing equality under the law and representation by commonly elected state officials; requiring that all Oklahomans pay for the “common services provided by the State to its residents”; consistent application of the law to all citizens regardless of heritage or other classifications (other than on tribal trust-owned land); maintenance of a level playing field for all businesses regardless of physical location or ownership; and respect for tribal sovereignty.
“We all benefit from those common services,” Nichols said. “The roads are roads. They’re not Indian roads and non-Indian roads. The schools, the education, the environmental protection, the criminal courts—all of that is shared by all of our citizens, so we believe all of our citizens should share in the responsibility for paying for those services.”
The Oklahoma Tax Commission has estimated that state government could lose hundreds of millions of dollars in tax collections due to possible exemptions created by the McGirt ruling. That would in turn shift an increased tax burden on other Oklahomans to maintain current services.
Under the McGirt ruling, the five tribes empowered by the decision may also have additional governmental responsibilities for various services, although it is not clear the tribes can provide those services, and Nichols suggested many citizens would find the resulting dual systems distasteful.
“We should not have segregated schools or segregated courts and jails,” Nichols said.
In addition to Nichols, other members of the Oklahoma Commission on Cooperative Sovereignty include former U.S. Sen. Don Nickles, former U.S. Rep. J.C. Watts, state Sen. Julie Daniels, state Rep. Mark Lepak, Alan Armstrong, Brent Bolen, Suzie Brewster, oilman Harold Hamm, and Joe Robson.
The commission has met with representatives of the five McGirt tribes, and officials with those tribes have each established their own tribal version of the commission to work through the challenges created by the court ruling.
But one of those tribal leaders quickly criticized the commission’s recommendations. In a statement, Cherokee Nation Principal Chief Chuck Hoskin Jr. said the commission’s proposal left “no role” for tribal governments empowered by McGirt.
“Let tribes decide the best path forward by choosing whether or not to opt into agreements and negotiations through federal legislation that work best on filling gaps in criminal jurisdiction,” Hoskin said. “There is no reason to erode tribal sovereignty or upend this historic McGirt decision when there are clear and better options to keep all Oklahomans safe.”
However, Stitt said federal legislation remains the best approach to addressing McGirt fallout, saying, “Compacting with each individual tribe is problematic” due to issues that include the challenge of enforcement.
Stitt noted 1.8 million non-tribal members live in the 18 million acres now considered reservation land, an area comprising roughly 40 percent of Oklahoma.
“That makes Oklahoma unlike any other reservation that exists in the entire country,” Stitt said. “Reservations in other states have land held in common, owned by the tribe. Almost zero non-tribal members live on those reservations.”
“Rather than having, as the governor described, reservations set aside exclusively for Indians, we’re totally integrated,” Nichols said. “The land is privately owned. Our citizens, non-Indian and Indian, are totally integrated together throughout eastern Oklahoma, throughout Oklahoma.”
“What we’re focused on is fairness and the success of all four million Oklahomans,” Stitt said. “And so the commission’s report, which I agree with, is that we need one set of rules regardless of your race, your gender, your geography, or where you live in the state of Oklahoma.”
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.