No 'surrender': Muscogee (Creek) Nation stands firm on sovereignty after historic Supreme Court win

Monday, July 20, 2020  

The Muscogee (Creek) Nation is celebrating its treaty rights for a second time this month and is calling on Indian Country to stand up for tribal sovereignty following the collapse of a controversial agreement that threatens to undermine a hard-fought victory at the U.S. Supreme Court.

Less than three weeks ago, the nation's highest court confirmed that the reservation promised to the tribe by treaty continues to exist. But the landmark decision, which was over a century in the making, was called into question by an immediate push to ask the U.S. Congress to step in with legislation.

Muscogee leaders initially were a part of the inter-tribal coalition, first announced on the same day of the July 9 ruling in McGirt v. Oklahoma. Their statement was joined by Attorney General Mike Hunter (R) -- the very state official who tried to convince the Supreme Court that the Creek Reservation did not exist.

A historic morning here at tribal headquarters as Muscogee (Creek) Nation Principal Chief David Hill and Second Chief Del Beaver listen live to oral arguments before the Supreme Court in McGirt v. Oklahoma. @indianz @IndianCountry @tulsaworld @TheOklahoman_ pic.twitter.com/yJktsi9rF3

— Jason Salsman (@RealJSals) May 11, 2020

But Creek leaders and citizens voiced serious concerns after details of an "agreement-in-principle" were announced on July 16, showing that core matters of sovereignty far beyond the scope of the case were on the table for negotiation. Chief David Hill disavowed the plan the following day.

"The Muscogee (Creek) Nation opposes any legislation that takes away what was just affirmed in McGirt," Hill told Indianz.Com on Sunday.

Hill isn't the only tribal leader backing out of the so-called agreement. The Seminole Nation does not support it either, Chief Greg Chilcoat announced last week, saying his people had not been included in any negotiations with Hunter to address their sovereign rights.

"To be clear, the Seminole Nation has not been involved with discussions regarding proposed legislation between the other four tribes and the state of Oklahoma," Chilcoat said of an agreement-in-principle that had been joined by the Cherokee Nation, the Chickasaw Nation and the Choctaw Nation.

The strong stances taken by Hill and Chilcoat came just hours after Suzan Shown Harjo, a highly influential figure in Indian Country, slammed the agreement. In a widely read post on social media, the Presidential Medal of Freedom recipient said it would undermine McGirt even before the ink dried on the landmark decision.

"Now is the time to stand for sovereignty, not to give it away," wrote Harjo, who is Holdogee Muscogee and Cheyenne. "The victory in McGirt is the result of generational sacrifices of our Ancestors."

"It is the present generations’ duty to guard and protect it, not to give it away," Harjo asserted.

Despite the clear declarations from Creek Country, the leaders of the other three tribes have no intention of backing down from their proposal with Hunter. Not long after Hill and Chilcoat withdrew on Friday, Cherokee Nation Chief Chuck Hoskin, Jr., prepared, recorded and posted a video on social media in defense of the potential legislation.

"Congress ultimately has the authority to close jurisdictional gaps by approving legislation, and this is why we started working with our state and federal partners before the case was even decided by the Supreme Court," Hoskin said, disclosing that talks had been taking place "for more than a year."

"But let me be clear about this -- in developing legislation, Cherokee Nation will never agree to undo what ultimately the McGirt decision affirmed," he said on Friday. "We will protect our reservation boundaries and our sovereignty."

Choctaw Nation Chief Gary Batton also said his government stands by the legislative framework. In a release on Friday, he refuted suggestions that tribal sovereignty is being "given up" in the agreement-in-principle.

"Our commitment is to strengthen not weaken our tribal hard-earned rights to self-government," said Batton. "The best way to protect this is by having a ‘seat at the table’ during any legislative discussions."

As for the Chickasaw Nation, Governor Bill Anoatubby continues to support the agreement, Hoskin told Indianz.Com on Saturday. The Cherokee chief spoke with the Choctaw and Chickasaw leaders amid the controversy, and he said all three Indian nations remain committed to the legislative playbook even though the other two tribes are not in agreement.

Addressing the underlying controversy, Hoskin said it would be "naive" for anyone to think that Congress won't react to McGirt in some fashion, despite the fact that it was limited to the treaty rights and the reservation of one tribe, as Justice Neil Gorsuch stressed in his widely-praised majority opinion.

"100 percent, you can guarantee they will respond," Hoskin told Indianz.Com. "Congress has a history to responding to Supreme Court cases which move the needle on tribal sovereignty."

"So the only question for the Cherokee Nation is whether we want a seat at the table of whether we want to be on the menu," the chief added. "And I don't want to be on the menu. I want to have a seat at the table."

Yet Hoskin is facing a revolt among his own people. Cherokee citizens are planning to march on their capital complex on Monday afternoon, sweltering temperatures and all, warning the tribe not to cede any sovereignty.

"I cannot support this agreement with Chief Hoskin," Cherokee Nation council member Wes Nofire said on social media on Sunday. "It was done behind closed doors and without public discussion, with the state of Oklahoma's attorney general."

"First and foremost, this agreement does sacrifice our sovereignty," said Nofire, who plans to introduce a council resolution disavowing the proposal.

The collapse of the agreement-in-principle came despite regular talks among leaders of the Creek, Cherokee, Chickasaw, Choctaw and Seminole nations, who are sometimes collectively referred to as the Five Civilized Tribes. They frequently work together on issues of common interest, with the recent passage of a bill protecting the land of their citizens a testament to their unity and strength.

But Chief Hill told Indianz.Com that going to Washington, where Indian issues aren't exactly a priority for the current Congress or the White House, is the wrong approach following the historic win at the Supreme Court. He said his tribal government, which has long operated a robust law enforcement and judicial system, will continue to address any issues that might arise in the wake of McGirt through intergovernmental agreements.

"The Muscogee (Creek) Nation remains open and willing to speak to members of the Oklahoma delegation, as well as tribal leaders of our sister tribal nations, and we will continue to do our best to explain why legislation is not necessary to address the public healthy and safety concerns that can and will be addressed through intergovernmental agreements," Hill said on Sunday.

"These sorts of intergovernmental agreements have worked on reservations across the United States that overlap with, or connect to, major urban areas," he added. Tulsa, which is the the second-largest city in Oklahoma and a hub of economic, social and political activity in the eastern part of the state, falls within the Creek Reservation, as the decision in McGirt confirmed.

"Take for example, the Puyallap Indian Reservation that encompasses Tacoma, Washington. Or, Gila River's Reservation which runs right up next to the sprawling metropolis of Phoenix," Hill pointed out. "Tribes routinely enter into intergovernmental agreements with sister sovereigns to address jurisdictional issues, and we do not need Congress to do this for us."

Both Hill and Hoskin told Indianz.Com that their working relationship will not suffer despite a break in the coalition. Besides weekly talks, the leaders recently concluded the first virtual meeting of the Five Tribes organization, which had to take place online instead of in-person due to the COVID-19 pandemic, which continues to affect the first Americans at disproportionate rates.

"We have an excellent relationship with the Inter-Tribal Council of the Five Tribes leadership," Hill said. "Our position doesn’t change that."

"But the McGirt case and outcome is a Muscogee (Creek) issue and we simply want our place at the table in these discussions to reflect that," Hill continued. "We are committed to working with leaders from the other Five Tribes. The Muscogee (Creek) Nation greatly values unity -- but not at the expense of sovereignty."

Chief Hoskin, however, admitted he was blindsided by the change in stance from the Creek and Seminole leaders, especially since it came barely a day after all Five Tribes announced the legislative framework. The press release -- which was put together by a public relations firm in Oklahoma -- included quotes from Chief Hill and Chief Chilcoat.

"I was surprised, and that would put it mildly," Hoskin, who also serves as president of the Intertribal Council of the Five Civilized Tribes, told Indianz.Com. "I know both of those gentlemen and have had a great working relationship with them."

"I speak with them each week, at a minimum of once at week, and spoke with them on the morning they issued their statements, and was shocked that those statements were issued," Hoskin said of the actions taken by Hill and Chilcoat.

"I don't begrudge any tribal leader for making up his or her own mind about what's best for their people, taking in the necessary feedback," he added.

And of the shift in stance among some of the five nations, he said: "I think it becomes difficult to build a coalition when positions change within a very short period of time, with no opportunity really to keep the coalition together. We'll continue to try, but that's how I feel at the moment."

Meanwhile, Sen. James Lankford (R) goes in search of a "solution" to a problem that didn't exist until the U.S. Supreme Court affirmed the treaty rights of Muscogee (Creek) Nation. #McGirt #HonorTheTreaties https://t.co/JiaNd1Y0hc pic.twitter.com/bPlZWuv1Y3

— indianz.com (@indianz) July 9, 2020

According to Hoskin, the five tribes and Hunter had agreed that Sen. James Lankford (R-Oklahoma) would use his position as a member of the Senate Committee on Indian Affairs to advance forthcoming legislation. On the day of the July 9 decision, Oklahoma's junior senator vowed to find a "solution" to McGirt but did not identify what problems a bill might need to address.

"The work will continue in the days ahead to clarify a framework for criminal and civil regulatory jurisdiction that provides consistency and predictability for all people living and doing business within the state," said Lankford.

Lankford has already held one meeting with staff for Sen. John Hoeven (R-North Dakota), the chairman of the Committee on Indian Affairs, to confirm the path forward for any McGirt vehicle. Republican buy-in is crucial in the U.S. Senate, where party leaders all but refuse to take up bills that they deem as being too Democratic, out of fear of letting their colleagues on the other side of the aisle claim success.

In wake of #McGirt, Oklahoma politicians are avoiding the obvious: Admitting that reservation promised to Muscogee (Creek) Nation by treaty still exists. Sen. Jim Inhofe (R): "We have a duty to all American citizens to uphold the Constitution and stand up for victim’s rights." pic.twitter.com/1mqVZ4bNIw

— indianz.com (@indianz) July 9, 2020

The ideological stance has kept pro-tribal bills that have cleared the U.S. House of Representatives, which is under Democratic control, from becoming law in the era of Republican President Donald Trump. His administration actively argued against the Muscogee (Creek) Nation's interests in McGirt and in Sharp v. Murphy, a similar case that the Supreme Court failed to resolve in 2019.

During arguments in both matters, Trump's appointees at the Department of Justice claimed the Creek Reservation did not exist, despite the guarantee in the treaty. They tried to convince the nation's highest court that the tribe already ceded sovereignty to the state, a line of thinking soundly rejected by Justice Gorsuch, who was chosen for the position by the president.

"If Congress wishes to withdraw its promises, it must say so," Gorsuch wrote in a decision joined by four of the court's Democratic nominees. "Unlawful acts, per­ formed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right."

Gorsuch, whose experience in Indian law is unprecedented in Supreme Court history, also shot down Oklahoma's attempts to weaken the Creek Nation's treaty-guaranteed rights. He dispelled notions that upholding the government-to-government agreement would upset matters beyond what was at stake in the case -- the state's "unlawful" exercise of criminal jurisdiction on one tribe's reservation.

"In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long,' Gorsuch wrote. "But it is unclear why pes­simism should rule the day."

"With the passage of time, Ok­lahoma and its tribes have proven they can work success­ fully together as partners. Already, the state has negotiated hundreds of intergovernmental agreements with tribes, including many with the Creek," he continued.

"The Supreme Court today kept the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation. Today’s decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries." #HonorTheTreaties

— indianz.com (@indianz) July 9, 2020

According to Creek leaders, the strong affirmation of their sovereignty should be the starting point for any discussions. The Muscogee Nation plans to ensure Congress is aware of what McGirt means to the tribe, as the decision did not directly deal with any other Indian nation's rights.

"Our legislative team will be working to clearly communicate our position to members of the delegation," Chief Hill told Indianz.Com. "We respect our delegation and are confident in the relationships we’ve built."

"The Nation will continue to communicate and work together with appropriate parties, but will not pursue or support any agreement or legislation that reverses or diminishes the the Supreme Court's affirmation of the sovereignty of the Muscogee (Creek) Nation," he added.

"I agree with Justice Gorsuch’s opinion today that the United States government should be held to its treaty obligations, & its word": Cherokee Nation Chief Chuck Hoskin Jr. on #SupremeCourt win in #McGirt. #HonorTheTreaties @ChuckHoskin_Jr @CherokeeNationhttps://t.co/F2B9u3r1MF pic.twitter.com/qwVyqh67nt

— indianz.com (@indianz) July 9, 2020

Still, Chief Hoskin said commonalities among the five tribes warrant the need to move forward with legislation even though McGirt did not resolve, one way or the other, the status of reservations beyond the one promised to the Creeks. He is not alone in this assessment of the case -- even though Gorsuch was careful to note that the outcome was only about one Indian nation.

"That was a decision by the Supreme Court of the United States that the original reservations of the Five Civilized Tribes ... are still intact as reservations," Rep. Tom Cole (R-Oklahoma), who is a citizen of the Chickasaw Nation, said in a video message on the day after the ruling.

"Establishing that the five largest tribes in the state, who comprise about 75 percent of the Native population, never lost their reservations is extremely important to them, and they united in that," said Cole.

"Fortunately we have a good history in Oklahoma of the tribes in the state working together in recent years and we have literally hundreds of agreements back and forth between tribal governments and the state government," Cole added. "Indeed, before this decision came down our Attorney General Mike Hunter and various representatives of the five tribes had already been meeting and working toward a common statement of principles and to work out any jurisdictional disagreements or disputes."

"So this is going to be tricky," Cole said, "but it's important to the long-term health and the relationship between tribal governments , which are a big part of our history and big employers, big players in our state, and the state government."

"I feel comfortable that the two parties will come together we may at some point need federal legislation to codify whatever agreements are made," he added.

With the high-stakes presidential election fast approaching, there is little time to act in the 116th session of Congress, whose work cycle has already been dramatically upended by the coronavirus. Legislative hearings, business meetings and markups ground to a halt for almost three months before the committees that deal with Indian issues finally got back into motion in June and July.

Despite the press for time, Chief Hoskin continues to believe the McGirt playbook, which was largely developed before COVID-19, before outrage over police violence following the killing of George Floyd, before a legal win against the Dakota Access Pipeline, before the Washington NFL team finally agreed to retire its racist mascot, can be carried out on Capitol Hill. He predicts passage of legislation before the end of the year.

"Congress is going to react to McGirt and it's going to affect all five tribes," Hoskin said. "I'm going to be at the table and I'm going to make sure that our interests are going to be upheld."

"I'm also mindful, and I can't underscore this enough, that there are plenty of interests in the state of Oklahoma," Hoskin continued. "History shows this -- that if they have the opportunity to weigh in on legislation that Congress absolutely, positively will take up, they will bring their point of view to the table and they want to be at the head of the table."

In McGirt and Murphy, the oil and gas industry, along with agricultural and other industry groups, submitted briefs urging the Supreme Court not to affirm treaty rights. Hoskin said the five tribes must be in Washington to counter any attempts to weaken their sovereignty.

"Well, I'm at the head of the table and I'm doing everything I can to make sure our interests are upheld," he said.

And of the timeline for McGirt legislation, he said: "I think something happens this year. I think we’re talking about action within months, not years."

But in another widely shared post on social media, Suzan Harjo on Sunday called out Hoskin. She accused him of promoting an agreement that would erode tribal rights by allowing the state of Oklahoma to exercise jurisdiction on treaty lands, thus continuing the same kind of "unlawful" activity that has already been struck down by the Supreme Court.

"It is a sad day in Indian Country when one Native Nation is willing to sell out another because of some backroom dealing benefit," Harjo wrote. "Cherokee Nation Chief Chuck Hoskin, Jr., it is with all due respect that I say: You need to back off and sit down. Despite shiny talking points and rhetoric of not standing by while Congress considers our future, the truth is there for all to see."

"I hope and pray the rest of Indian Country will support Muscogee Nation Principal Chief David Hill in his stand for the Nation’s sovereignty, treaties, laws, jurisdiction and ways," she continued. "And please tell the Cherokee Nation to stop turning its back on a sister sovereign just to be in a better position to scoop up crumbs from under the colonizer's table."

Chief Hill advanced a similar message. A threat to one tribe's sovereignty is a threat to everyone's, he asserted.

"Indian Country can help us by standing with us in this fight for true victory," Hill told Indianz.Com. "There are many out there who understand what is at stake. Those voices need to be heard."

"Too many people worked too hard to see this day come to pass," he said. "Now is the time to exercise our sovereignty, not voluntarily surrender it."

McGirt v. Oklahoma

• Syllabus
• Opinion [Gorsuch]
• Dissent [Roberts]
• Dissent [Thomas]
• Complete Document

Sharp v. Murphy

• Per Curiam [From the Court]

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