Gov. Kevin Stitt (R-OK) during a June 18 White House roundtable on reopening the economy.

 

(Image: Photo by Alex Wong / Getty Images.)

Oklahoma Governor Pushing to Undo Tribal Sovereignty Ruling

Gov. Kevin Stitt of Oklahoma has publicly stated that he must seek to have Congress pass legislation to override the U.S.Supreme Court McGirt v. Oklahoma ruling that the Eastern half of the state is still the sovereign land of five Native American tribes. The only “solution,” as Stitt sees it, is for the state's representatives in Congress (all Republicans except for one) to pass federal legislation to have ALL issues, ALL criminal and ALL civil matters involving the five tribes reservations revert to the control of the state of Oklahoma.

As TYT reported last week, Governor Stitt has already asked the Environmental Protection Agency (EPA) to override tribal sovereignty regarding regulation of environmental issues in the eastern half of the state. Stitt can legally do that despite the US Supreme Court ruling that that part of Oklahoma is still sovereign territory of five tribes (Muscogee(Creek), Choctaw, Cherokee, Chickasaw, and Seminole). He can because of a midnight rider Senator James Inhofe (R-OK) attached to an appropriations bill in 2005. That rider gave the EPA and, if requested, the state of Oklahoma, the legal right to assume control of regulating the Clean Water Act of 2002 in Oklahoma. It applies only to Oklahoma tribes. This rider meant the state of Oklahoma could protect and had control of regulating its fossil fuels, a multibillion dollar industry there.

NEXT: TAKE AWAY ALL SOVEREIGNTY RIGHTS OF THE FIVE TRIBES

In a webinar on Aug. 3 with the Oklahoma Farm Bureau, an agriculture business group, Stitt made clear the magnitude and impact of the Supreme Court’s McGirt v. Oklahoma decision on the running of the state, noting that it affected, “…taxes, regulations and criminal cases.” In a telling exchange, Farm Bureau President Rodd Moesel and Stitt agreed federal legislative intervention was necessary, citing a hint from the author of the McGirt decision, Justice Neil Gorsuch:

Moesel: It sounds like the only solution is congressional action now. Gorsuch says in his decision that Congress has the power to end it or make other arrangements just as they have done with the Chickasaw Nation… Stitt: …I don't [see any other solution]. It would just be compact after compact after compact. We have great relations and the state works well with tribes today, but the uncertainty is who will the chiefs of the tribes be 5 or 10 years from now, who is the next governor, what do the compacts look like, and the state has apparently little say in what goes into these compacts and how to audit them. The federal delegation going in and fixing this is what the attorneys are telling us.


TRIBAL ENEMY: US SENATOR JAMES INHOFE

Native American activists, especially those from Oklahoma, know who the powerful fossil fuel interests in Oklahoma will call for congressional intervention -- oil’s best champion: James Inhofe

Inhofe is the senior U.S. senator from Oklahoma. A four-term Republican up for reelection in November, he is a die-hard pro-oil, gas and fracking conservative and climate change denier. Inhofe was once mayor of Tulsa and seems to have what might be called a pioneer cowboy attitude toward Native Americans.

Oklahoman activist Ashley Nicole McCray, who is Absentee Shawnee & Oglala Lakota, notes, “NE Oklahoma does not like James Inhofe. He built a giant house on Grand Lake in Grove, Oklahoma and impacted the water there.” Inhofe used a military funding bill last year to limit how much a dam in Oklahoma could control the water level of Grand Lake. That’s where he owns a home and his wife has investments in $1 million worth of properties. The high level of water, good for recreation for the upscale lake homes, caused major flooding upstream in the impoverished town of Miami (pronounced My-am-uh) where 20% of the residents are tribal members. The flooding caused not only mold and transportation problems, but, the mayor there said, prevented industry from investing in the town.

Inhofe has had an even bigger impact on water rights of Oklahoma tribes.

INHOFE NEUTERED OKLAHOMA TRIBES BEFORE

In 2005 the Senator attached a clause to an appropriations bill that essentially negated Tribal ability to stop projects impacting water supplies as protected in the 2002 Clean Water Act. This sleight of hand by Senator Inhofe deprived only the Oklahoma Tribes the legal authority to challenge projects based on the impact on water cleanliness and supply.

The National Congress of American Indians and seven other Native American organizations have publicly stated concern that Inhofe has already formed a working group of Oklahoma congressional Republicans to pull the same type of political maneuver and seek federal legislation to negate all the treaties affirmed by the McGirt decision. They have written to Senator Inhofe warning him not to try similar tactics.

In a July statement from Inhofe and other Republican federal legislators from Oklahoma, one phrase may be foretelling, “… we expect federal legislation to provide greater clarity for everyone.”

SOME TRIBAL LEADERS MAY NOT BE ABLE TO SUPPORT ENVIRONMENT

McCray cites another avenue of possible environmental sabotage. Buying off tribes desperate for income to cover tribal services including health care during this COVID-19 pandemic. McCray told TYT:

“… tribal nations’ leaders are faced with a tough decision. They want to save the environment for future generations, but often have no choice but to accept fossil fuel deals because of their economic reality & duty to care for their people. This is true for a lot of tribal leaders. Actually it’s both tribal governments with land and individual tribal members with leases on their own land…On an individual level it’s harder to counteract…with family allotments, only 50% of the allottees have to go along. The fossil fuel industry is difficult to counteract in rural Oklahoma where impoverished conditions make survival a necessity.”

It is not clear who protects the environment in this power struggle. Tribal leaders have a responsibility to provide services to their citizens. This is a difficult task, because tribal governments cannot collect taxes (though after McGirt this may change). That’s one reason so many casinos are on Native American land. The casinos provide much needed cash for tribal services like police, fire, health, and vehicle registration. Some tribes are not opposed to fossil fuels if that provides income. It is more about self-determination than the environment for some Native Americans tribal leaders.

LEADING NATIVE AMERICAN ACTIVIST COMMENTS ON OKLAHOMA ACTIONS

Julian Brave Noisecat, one of the authors of the Green New Deal, responded to TYT’s report that Stitt asked EPA Administrator Wheeler to strip tribal authority on environmental regulations, calling it, “incredibly concerning.” Noisecat is a member of the Secwepemc and St'at'imc Nations and vice president of policy and strategy for the Data for Progress environmental think tank. In a statement to TYT, he said:

"In McGirt v. Oklahoma, the Supreme Court affirmed the treaty-backed promise at the far end of the Trail of Tears. These treaties, signed by tribal nations and the federal government, have been ratified by Congress and are described in the United States Constitution as the 'Supreme Law of the Land.' It is incredibly concerning that, less than two months after the Supreme Court affirmed the unbroken and preeminent power of these treaties as law, the state of Oklahoma, Congress and the Trump Administration have gotten back to the 150-year-old business of breaking them."

NOVEMBER 3RD IMPACT

Much of eastern Oklahoma’s sovereignty status could be determined on November 3rd. Given Inhofe’s close relationship to big oil and Oklahoma oil billionaire Harold Hamm, and their close relationship to Donald Trump; if he is reelected President the odds increase of some federal legislation completely overturning the Supreme Court’s McGirt ruling. If Joe Biden is elected president and the US Senate flips to a Democratic majority, while still possible, the odds are clearly lower.

Stitt said in the Aug. 3 webinar that a legislative fix could be “slipped in this year,” but that, “I think it’s probably something that would happen next year, after talking to the senators.”

(After the warning from tribal leaders against a legislative rush, Inhofe reportedly said no legislation was imminent.)

Referring to the “exhaustive list” of issues the state would have to negotiate with tribal leaders if they have sovereignty, Stitt said, “Our federal delegation has got to step in and go back to where we thought we were two weeks ago before this ruling came out.”

Stitt also revealed why Native Americans were absent from from his commission on the ruling.

“Some people said, ‘Why don’t you put tribal leaders on your commission?’” He told the Farm Bureau, “The reason I didn’t do that is because I wanted this commission to represent the state’s interest.”

Stitt said, “I knew that the tribes were going to have their own interest. And they would be lobbying and pushing the federal delegation for what was in their best interest. And I wanted somebody thinking about what was in the state’s best interest.”

When Stitt announced his commission, he said its charge was to make recommendations to the state and Congress about how to proceed.

In the webinar three weeks later, Stitt said the state’s federal representatives were “very engaged” with the issue and, “I know they’re reaching out to groups like the Farm Bureau.”

“Oklahomans need to get engaged with this issue,” Stitt said, “and let Inhofe and [Sen. James] Lankford (R-OK) know, you know, what the fix is.”

In addition to putting industry leaders on his commission, Stitt said he has been “briefed by several big law firms on what this means, as they’re briefing their clients.”

Asked about the “concern” that tribal lawyers will push for the full range of sovereignty rights implied by the Supreme Court ruling, Stitt said “that’s the thought process” of the lawyers who had briefed him. He also said tribal leaders may be under pressure from members who want to push for an “extreme” reading of the ruling. Stitt offered no proof for this speculation.

At one point, Stitt offered a justification for state control by referring to state benefits Native Americans received in the early days of the pandemic.

“One thing that I think is important for the Farm Bureau to know is, when we had this downturn and our unemployment went up to 14½ percent, did you know that the state, we spent $125 million on tribal members for unemployment? Which is great: That’s you and that’s me and that’s people in Oklahoma. So we can’t have two sets of rules. That’s my whole point.”

What Stitt did not mention is Oklahoma tribes contribute an estimated $12.9 billion to the state economy. Since 2005 Oklahoma Tribes have paid the State of Oklahoma some $1.2 billion in gaming fees alone. Fees which Governor Stitt wants to more than double. In 2015, tribal gaming contributed $325 million in payroll related taxes to Oklahoma.

Referring to his fellow commission members, Brent Bolen, a county farm bureau official, said during the webinar, “You can see that uncertainty brings some, a little bit of fear and a little bit of unknown to those guys.”

In his final remarks, Stitt recounted an exchange he had with tribal leaders after the ruling.

“I said, your citizens need to understand that, long-term, if you go look at reservations in New Mexico, in Arizona, in North Dakota, you don’t have Tesla located on a reservation there. Not that the land is any different, but it’s the uncertainty. You have to know what the rules are and we’ve got to have one set of rules if we want to have non-tribal businesses located [on reservations] and expanding and growing. And so that is why, I believe that--the tribes know this, and I believe--we can all come together and let our federal delegation know how to fix it, how to go back to one Oklahoma.”


Stitt, Inhofe, the Muscogee and Cherokee Tribes, and the National Congress of American Indians either did not respond to or did not answer questions from TYT Investigates.

TYT Investigative Reporter Ti-Hua Chang is an award-winning journalist who has worked for CBS News and other outlets. You can find him on Twitter @TiHuaChang.

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