Had a productive and encouraging meeting this morning with Charles Addington, Director of the Office of Justice Services...
Posted by Principal Chief David Hill on Thursday, July 23, 2020

Law | National | Politics | Trust

National Congress of American Indians stands strong against efforts to erode tribal sovereignty

Thursday, July 23, 2020

By Acee Agoyo

The nation's largest inter-tribal advocacy organization is diving into controversy over the U.S. Supreme Court decision that affirmed the treaty rights of the Muscogee (Creek) Nation, vowing to oppose legislation aimed at undermining the historic victory.

In a statement on Thursday, the National Congress of American Indians acknowledged efforts on Capitol Hill to "disestablish or terminate" reservations in Oklahoma following the landmark win in McGirt v. Oklahoma. But the organization said it would "aggressively oppose this baseless action."

"NCAI’s mission is to fully protect and support the sovereignty of every tribal government across the country," the short yet pointed statement read. "As such, we will strongly oppose any and all legislation that diminishes the sovereignty, jurisdiction, or treaty rights of tribal nations that are affirmed in the United States Constitution, statutes, and judicial opinions, including in the Supreme Court’s historic McGirt decision."

"NCAI is aware of a legislative effort currently underway in Congress to disestablish or terminate the reservations of certain tribal nations in #Oklahoma, and we will aggressively oppose this baseless action." @NCAI1944 #HonorTheTreaties #StandWithMvskoke #OneMvskoke https://t.co/RmOZbbkOxv
— indianz.com (@indianz) July 23, 2020

The statement caps off a week of political drama that began when the Muscogee (Creek) Nation, whose reservation boundaries in Oklahoma were confirmed through the case, walked away from potential legislation that might address issues arising from McGirt. The tribe and its leaders have made clear that they will not accept any efforts to erode their sovereignty.

"Creek Nation is completely against any legislation that diminishes McGirt," Jonodev Chaudhuri, a former federal government official who now serves as his tribe's ambassador, said during a well-attended webinar that concluded right as NCAI was issuing its statement.

Derrick Beetso, NCAI's general counsel, also took part in the session, which was hosted by the Indian Legal Program at the Sandra Day O’Connor College of Law at Arizona State University. He called McGirt a "huge victory on behalf of Indian Country" that should not be attacked in the halls of the U.S. Congress.

"NCAI will stand strong against that," Beetso, who is a citizen of the Navajo Nation, said in a preview of the organization's eventual statement, which points back to its 76-year history as a defender of sovereignty and opponent of termination-era policies such as taking away tribal homelands.

Stacy Leeds, dean emeritus and professor of law at the University of Arkansas, said she's heard about a legislative rider that could diminish not just the homelands of the Muscogee (Creek) Nation but those of the Cherokee Nation, the Chickasaw Nation the Cherokee Nation, the Choctaw Nation and the Seminole Nation, who are sometime collectively known as the Five Civilized Tribes.

"If it came to some sort of rider that sought to take boundaries away from any tribe, there would be a full-on assault of all Indian Country -- including all five tribes -- to shut that down," said Leeds, who was the first woman to serve as a justice on the Supreme Court of the Cherokee Nation.

As one of the three branches of the U.S. government, Congress owes a fiduciary duty "of the highest responsibility and trust" to tribes and their citizens, as the Supreme Court has often pointed out. But Indian Country knows all too well that judicial victories are not always accepted by politicians and lawmakers, who are often guided by competing financial, political and social interests when it comes to the first Americans.

Indeed, as soon as the high court announced McGirt on July 9, which was last day of a tumultuous term that had been upended by the COVID-19 pandemic, Oklahoma's political machinery kicked into a different gear. Instead of hailing the significance of the ruling and its importance to tribes, whose treaties have repeatedly been broken by the U.S. government, they have sought to address all sorts of matters that go far beyond the case, whose only question was the state's "unlawful" exercise of criminal jurisdiction on the Creek Reservation.

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

"I look forward to working with the tribes, the state, and other members of the Oklahoma congressional delegation to finding a solution acceptable to all parties," Sen. James Lankford (R), who serves on the Senate Committee on Indian Affairs, said in a statement that asserted a need to "clarify" issues of "criminal and civil regulatory jurisdiction" in the state even though McGirt was narrowly focused on one aspect of criminal prosecution.

Lankford and his Capitol Hill colleagues -- there are six Republicans and one Democrat in the delegation -- have continued to parrot the playbook even though the Muscogee (Creek) Nation and the Seminole Nation disavowed the McGirt framework. While the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation have not abandoned potential legislation, their leaders have since said they will solicit more input from their people as they go forward.

A delegation statement on Monday, however, glossed over and ignored the positions of the five tribes, whose citizens represent a sizable chunk of the state's population and whose treaty territories take up almost the entirety of eastern Oklahoma.

"Many legal questions remain that will require clarifying legislation," read the statement from Lankford; Sen. Jim Inhofe (R); Rep. Tom Cole (R), who is a citizen of Chickasaw Nation; Rep. Markwayne Mullin (R), who is Cherokee, along with Rep. Kevin Hern (R), Rep. Frank Lucas (R) and Rep. Kendra Horn (D).

Since people are asking: In 2005, Sen. Jim Inhofe (R-OK) used his leadership position to insert harmful anti-tribal rider into transportation bill. The rider bars #Oklahoma tribes from exercising sovereignty over water & air without "cooperative agreement" from state. #McGirt pic.twitter.com/k206FOv4YF
— indianz.com (@indianz) July 22, 2020

Along those lines, Lankford has already held at least one meeting with staff for Sen. John Hoeven (R-North Dakota), the chairman of the Senate Committee on Indian Affairs, to clear the path forward for any McGirt legislative vehicle. But participants in Thursday afternoon's webinar also feared that Inhofe would revive a strategy he's employed in the past to undermine tribal rights.

In 2005, Inhofe used his position as chairman of the Senate Environment and Public Works to insert a harmful rider into a transportation bill that bars tribes in Oklahoma from exercising sovereignty over their air and water without a "cooperative agreement' from the state. The language was developed without prior consultation or public notice and, to date, no other Indian nations are subject to the same restriction.

Inhofe now serves as chair of the Senate Committee on Armed Forces. Some tribal advocates were concerned that he would try to insert a McGirt rider into a must-pass defense funding bill, judging his record of going against their interests.

"I think that it's a real possibility, given what I hear, here in Oklahoma," Leeds said during the session.

But Inhofe had not appeared to take any action to address McGirt with S.4049, the National Defense Authorization Act, which funds the military for the upcoming fiscal year of 2021. The Republican-controlled U.S. Senate approved by the bill by a bipartisan vote of 86 to 14, with the final tally coming about 20 minutes before the Indian law session began on Thursday.

Holding a photo of my great-grandfather Charley Coker, who stood alongside Chitto Harjo before a select Senate Committee...
Posted by Principal Chief David Hill on Wednesday, July 22, 2020

"I don't think legislation is inevitable by any means," said Chaudhuri, who urged Indian Country to start healing from the very real "PTSD," or post-traumatic stress disorder, that characterized its past dealings with official Washington.

"I think if we could take a step back as advocates of sovereignty for a moment, and look at the larger landscape that we're in right now, I think most people would agree with me," Chaudhuri said, speaking of the massive movement toward justice that has been embraced in the U.S. following the killing of George Floyd, an African-American man, by police officers. The COVID-19 pandemic, which has disproportionately affected the first Americans and other marginalized groups, also has played a role in exposing long-standing inequities.

"This case was celebrated by Indigenous people across the world," Chaudhuri noted, citing calls the Muscogee (Creek) Nation has fielded from as far away as New Zealand, home to the Maori people.

"The fact that this case is narrow in a legal sense is not inconsistent with the fact that this case is being understood in a social justice sense," he continued, pointing to the upcoming presidential election as another marker of change.

"This case is not amenable to surgical legislation," Chaudhuri stressed, responding to arguments that his tribe should be at the table lest it be on the menu on Capitol Hill.

"If there's nothing to fix, there's no need for a legislative fix," he said. "It's as simple as that."

Mvto & Aho, NCAI. Standing for Native Nations’ sovereignty and treaties and jurisdiction, and for Muscogee (Creek)...
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Despite the seemingly good news with the Senate's vote on NDAA, the legislative process is not yet complete. The U.S. House of Representatives passed H.R.6395, its own version of the bill, by a largely bipartisan vote of 295 to 125 on Tuesday. So the differing packages will have be reconciled later in the 116th Congress, giving lawmakers and other interests plenty of opportunity to try and undermine the Supreme Court victory.

"I do think that we're at a turning point in Indian law, and granted it's by a very slim margin" Leeds observed of the significance of the July 9 ruling, which was decided by a vote of 5 to 4.

The majority opinion was written by Justice Neil Gorsuch, whose experience in Indian law is unprecedented in Supreme Court history. Though he's a nominee of Republican President Donald Trump, he convinced the four Democratic nominees to join the ruling in favor of the Muscogee (Creek) Nation.

"But I think we've turned at least a slight corner away from where we were in the Rehnquist court," Leeds said of an earlier era that saw tribes lose case after case under the late former chief justice William Rehnquist.