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 Congress.gov, 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 [email protected].
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.