Chief Hoskin, AG Hill address agreement in principle following McGirt decision

Cherokee Nation Principal Chief Chuck Hoskin Jr. and Attorney General Sara Hill address the recent agreement in principle following the U.S. Supreme Court's McGirt decision. Chief Hoskin explains, "Cherokees have long asserted that our original homelands were exchanged for a new reservation by the U.S. government. Our tribal Constitution has long affirmed its boundaries and established our authority to govern ourselves and this land. We will continue to do so, as we always have."

Posted by Cherokee Nation on Friday, July 17, 2020
Cherokee Nation: McGirt Agreement-In-Principle

Zac Russell: Cherokee Nation won't surrender its sovereignty

On the McGirt Agreement in Principle

Citizens of the Five “Civilized” Tribes have been on a roller coaster ride this week.

We were ecstatic to learn the Justice Neil Gorsuch authored the decision of the Supreme Court of the United States proclaiming that the Creek Reservation (and presumptively all five tribes) has never been disestablished. Our sovereignty was affirmed, a rare instance of the U.S. keeping their word.

Days later we were flabbergasted to find the five tribes and the Oklahoma Attorney General had published an agreement in principle giving Oklahoma authority to prosecute crimes involving Indians that had previously been under exclusive jurisdiction of the tribes or the federal government. Many quickly decried this agreement as a surrender of our sovereignty. Two tribes, the Seminole Nation and the Muscogee (Creek) Nation, later issued statements distancing themselves from the agreement.

Criticism ramped up as discussions ensued, seeming to cross political divides. The discourse escalated as some called for Principal Chief Chuck Hoskin, Jr. of the Cherokee Nation to be impeached or recalled. Accusations were hurled that this was all equivalent to the signing of the Treaty of New Echota.

Chief Hoskin was accused of violating Cherokee Nation law and the Oklahoma Bar Association’s code of ethics. None of those are valid criticisms.

The agreement in principle, if enacted into law, would grant some of our sovereignty to the state of Oklahoma, but this is not the same as an unauthorized group of unelected Cherokees illegally signing a treaty giving away our land and permitting the U.S. government to force Cherokees from their homes, resulting in the deaths of thousands of Cherokees.

Zac Russell. Courtesy photo

To draw an equivalence is intellectually dishonest and deeply offensive and should offend every Cherokee. Chief Hoskin was elected precisely to perform these negotiations. Any negotiation that would create legal framework would need to be approved by council, but this agreement does not do that.

It is simply an agreement between the Chiefs and the state to guide any potential legislation enacted by the U.S. Congress. Congress could enact legislation without our consent or input. Having Chief Hoskin involved is an asset, not a detriment.

I have some problems with the agreement as it stands, but Chief Hoskin has now released a statement that he has taken feedback into consideration and will take that into account in future discussions. My main issue with it is that it allows the state to prosecute Indians on our reservation without our consent or input.

Cherokee Nation Principal Chief Chuck Hoskin Jr. watched as crews removed two Confederate monuments from the Cherokee Nation Capitol Square in Tahlequah, Oklahoma. Both monuments were placed on the capitol square nearly a century ago when the property was owned by the state. The tribe did not place the monuments. Photo: Cherokee Nation

For one thing, submitting Indians on the reservation to state law and state jurisdiction limits our tribal council’s ability to legislate effectively because any bill passed by council could be counteracted by the state legislature. Then there’s the issue of over-policing Indians which has cost too many Indian lives and many more Indians are put in jail for offenses white people would not have been or would have received less time. Any agreement to allow the state to prosecute Indians should involve the tribe.

This could be accomplished in several ways, including allowing the state to detain Indians and refer prosecutions to the tribe’s Attorney General for prosecution or even allow them to bring charges in our courts. We could reverse that so that the tribe’s prosecutors would bring charges against Indians under our jurisdiction through state courts.

Alternatively, we could be notified and given right of first refusal to prosecute and any objection to prosecution noted to the judge and jury involved and we should be given the right to submit sentencing recommendations for any Indians in our jurisdiction. We could even just ask for the right to rent space in state prisons for any Indians we prosecute. There are many creative solutions we can come up with to compromise with the state and still retain a great degree of sovereignty.

There is also the issue of permanence. One day, I suspect and hope we will have the capacity to prosecute all crimes on the reservation one day. When that day comes, while we have the capacity, our authority will be shared with the state and we’ll have no ability to withdraw that authority from the state.

Involving Congress puts a historical precedent into law giving another sovereign authority over our citizens. Once authority is given to the state, Congress is not likely to return it to the tribes.

We can do this with a compact that expires in a given amount of time and allow for a transition period upon its expiration and option for both parties to renew or decline renewal. If Congress were involved, any legislation must include a sunset clause and transition period upon its expiration. There are other concerns others have raised, but these are my issues with the agreement.

I have no issue with Chief Hoskin. He is a good man who loves the Cherokee Nation and wants to protect our sovereignty, I simply believe this agreement falls short of what he can get and what our people deserve.

Wado, Chief, for your efforts and willingness to listen.

Zac Russell is a citizen of the Cherokee Nation who is active in the Native American Student Union at The University of Virginia. He can be found on Twitter @zacrussell93. This opinion is his own.

McGirt v. Oklahoma

Sharp v. Murphy

Indianz.Com Audio: U.S. Supreme Court - McGirt v. Oklahoma - May 11, 2020

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