Choctaw Nation Chief Batton Special Report: McGirt vs Oklahoma

J. Eric Reed: A roadmap for protecting tribal lands and sovereignty

To Be or Not to Be, That is the Question

Halito! The Great elation many felt was indescribable when the United States Supreme Court issued great clarity to all Tribes regarding the validity of their jurisdiction that had been usurped by the state unlawfully for so many years.

The McGirt decision and order is not a gift, the ruling simply provides complete and undeniable clarity to ALL about the proper lawful territorial jurisdiction for Tribes. The clear ruling and order now dictates that Congress in its Trust Responsibility to Tribes allocate the necessary and proper resources with funding for the Tribes to rebuild the systems of justice and infrastructure in Indian Territory as reservations.

Congress is not allowed nor any of the representatives to turn their back on the Tribes and fail the Tribes once again. Because of the intellectual honesty of the majority opinion upholding tribal sovereignty, McGirt also provides a clear roadmap forward for both the Tribes and State in support of the transition from the forced and un-natural colonial jurisdiction to appropriate tribal jurisdiction in the boundaries of Indian Territory.

The clarion call of the case is a “UNITY DECISION” for all tribes and all peoples in the United States to support and for all of Oklahomans to prosper following the ruling. Both Tribes and the State can create a beneficial public safety through honoring the Court’s order.

J. Eric Reed. Courtesy photo

For the last century, the Five Tribes have labored under a forced and unlawful, colonially imposed system of justice that our tribes and our citizens neither needed nor wanted imposed upon them. During this century of state dominion over tribes, disparity, bias, and marginalization resulted in tribes being unable to redress the lack of justice and racial marginalization imposed upon them until now.

Please consider the life of Apushimataha (Pushmataha): a fearless warrior and charismatic leader who befriended, made alliances with, and benefitted Andrew Jackson and the U.S. government only to be betrayed by Jackson and others in treaty negotiations and simple requests to uphold the promises to Tribes. He simply asked Jackson and the U.S. government to keep their word that the Choctaw would “have the lands as long as the grasses grow and the rivers flow” as promised by the U.S. government.

Pushmataha, who did not seek fortune or notoriety, was a humble Mingo/Chief to the Choctaw Tribe and peoples. While in Washington D.C., he fell ill and died serving our peoples to protect our lands and sovereignty. The Five Tribes were nevertheless removed to Indian Territory known in the Choctaw words “Oklahoma” or Red Earth. As citizens and leaders together we must serve our nation the same way today to preserve, protect, and build our jurisdictional sovereignty and justice institutions for a better future. The McGirt decision has finally ordered that Congress be held to their word and promises and restored enforcement of Tribal jurisdictional sovereignty to the Five Tribes.

The Danger of Tribes Failing to Fight to Transition to Sovereignty!
It is great to see that the Tribal leaders have backed away from the initial State plan and should now use pause, reflection and wise decision making to avoid fear and to be strong to support a transition of our Tribes forward on a pathway to flourish as a sovereign. The horror of failing to be strong by letting fear control their decisions and watching them fold and surrender everything that is the life blood of our spirit and soul is unbearable to think about but is an all too dangerous reality of losing everything regarding our future sovereignty that many indigenous have fought and died to preserve against all odds.

We as Native peoples do not want to take the bait and snatch defeat out of the jaws of victory. When I contacted my great teacher and mentor, Sam Deloria, from the American Indian Law Center who represents the epitome of fighting for and supporting Tribal sovereignty and has trained the legal minds of many Native American law students since 1968, he simply asked me “do they really want it or not?” which resonated to me a great concern in the initial tribal response to look to the State rather than ourselves and our scholars for answers. Said in other words the Five Tribe leaders are forced into deciding ALL of the Tribes futures with the question of “To be or Not to be Soverns?, that is the ultimate question.”

If Tribes fail to fight under the “grunt and sweat of this weary life” just as our ancestors to keep sovereignty and nurture it into a future for our peoples or in a legal sense commit suicide and surrender that sovereignty forever “for in that sleep of death, what dreams May come . . . their currents turn awry And loose the name of action [and die].”

Please consider that our ancestors’ mere survival was an act of great resistance and proclamation of sovereignty in the face of genocide and neither they nor we now consider the protection of our sovereignty a “hobby”! But instead, our fight is a passion and traditional way of life. If Tribes fail now they will place themselves in nothing more than that of a corporate entity with only the illusion of sovereignty and a response to any future litigation on sovereignty treat potentially from the Courts as nothing more that garnering the consideration of that of a corporate entity under the law.

Indianz.Com Video: Oklahoma Gov. Kevin Stitt (R) State of the State #HonorTheTreaties

Secret Meetings, Dark Money and Smoke Filled Rooms of Mysterious “Stakeholders?”
The state regime and its many minions want to see a proposed statement or agreement-in-principle that would return our Tribes to the shackles and yoke of state jurisdiction even before the ink dries on the McGirt order clarifying jurisdictional sovereignty that is vested in our Tribes. Both the State and the Congressional officials are creating “commissions” to advise them that are comprised with a mysteriously identified group of “stakeholders” which may include anti-native interests and other industry interests that do not want to take responsibility for malfeasances, torts and other legal matters in Indian Territory.

What and who exactly are comprised of the State commission are unknown but clearly follow the same rhetoric of fear. Federal Senators and Representatives Groups and their political leanings may be a violation of the Trust Responsibility these officials are required by law to follow on behalf of the Tribes. In terms of tribal participation in those meetings tribes should seek transparency rather than secrecy and avoid involving anyone associated with lobbyists dark money in political matters and advocate the benefits the McGirt ruling has for all to benefit rather than fear.

After such a long battle over many years to achieve self-determination, in the simplest terms, agreeing to the State of Oklahoma’s plan of a Faustian bargain would set an absolutely horrible and dangerous precedent in Indian Country against any Tribes fighting for and achieving freedom and self-determination in a court of law or politically. Those who are against Native peoples will argue and point to the fact we acquiesced the required duty of self-governance regarding Tribal sovereignty over jurisdiction to the state to exercise and that our future plights for asserting tribal sovereignty are merely an illusion of sovereignty warranting nothing more under the law than that of a corporate entity.

Now is time for great pause and reflection so that we protect all Five Tribes tribal sovereignty and set a powerful precedent to protect tribal sovereignty in all of Indian Country. The decision effects at the highest about merely 9% of the State’s entire Court docket matters and there is no “tidal wave” of problems as several detractors have alleged will collapse the State and Federal Court systems.

It is important to understand that state jurisdiction over native peoples has been wrought with injustice and inequality in Oklahoma and other States in the United States for many years. Indeed, that disparity in fair justice is the reason for challenging state jurisdiction in McGirt and the other cases in the first place.

For example, “Pass through” money allocated to the States from the Federal Government for COVID 19 health care seemingly never makes it to the Tribes in endless stories of disaster on our reservations across the United States regarding the virus which simply harkens a historic reality of plagues and promises never fulfilled and such abject indifference and planned intent is some cases killed our peoples on the Trail of Tears.

Three important cases to keep in mind in relation to McGirt while we move forward on our tribal jurisdictional sovereignty are:

Dollar General Corp. v. Mississippi Band of Choctaw Indians, 579 U.S. ___ (2016), was a United States Supreme Court case in which the Court was asked to determine if an American Indian tribal court had the jurisdiction to hear a civil case involving a non-Indian who operated a Dollar General store on tribal land under a consensual relationship with the tribe. The Court was equally divided, 4–4, and thereby affirmed the decision of the lower court, in this case the United States Court of Appeals for the Fifth Circuit, that the court had jurisdiction. This will be an area of litigation because of easements on Indian Lands.

Brackeen v. Bernhardt, (Pending), argued on en banc rehearing where the United States Fifth Circuit Court of Appeals regarding a decision on whether Congress Plenary Power is unconstitutional and the Indian Child Welfare Act passed as a part of that Trust Responsibility and Plenary Power of Congress’ relationship and trust responsibility to Tribes that can affect every federal statute created for Tribes under the Plenary Power Doctrine. Their intent is to have the Plenary Power doctrine struck down and Tribes ultimately have no status under the law.

Zurich American Insurance Co. vs. McPaul, No. CV-19-08227-PCT-SPL, United States District Court of Arizona (Order 8/7/2020). Order ruling that a Tribal Court does not have jurisdiction over an insurance company in a tribal civil matter as the insured of a Defendant company which consented to jurisdiction that spilled 15,000.00 gallons of Gasoline and contaminated an area of tribal town on the Navajo Reservation. Fossil fuel and other industries identified by the State as “important stakeholders” do not want any responsibility for any malfeasance, tort or contract breach on Indian land even after jurisdictional consent has been given and this case seeks to prevent the insurance carriers who indemnify the Tribes for corporate misbehavior on Tribal lands to provide insurance coverage when the company is found liable for misbehavior in a tribal Court of law.

These cases are important as they represent a trend of anti-tribal and anti-native sovereignty and the trust responsibility regarding our nations and the laws that protect our nations which serve as an example of why we must fight to preserve them and that these issues are going to be the battle ground of our future. It is disconcerting to see Senator Jim Inhofe and others take an anti-Native stance given their oaths of office to serve as fiduciaries to the Tribes as part of the Congressional Trust responsibility and instead breach that fiduciary duty and promote, support and even attempt to legislate contrary to that fiduciary duty and Trust Responsibility that they are required to uphold.

Rather than surrender, we should collectively gather together and fight any diminishment or disestablishment proposal that anti-native racists, lobbyists and dark money want to attempt to impose under some type of a Public Law 280 scheme to again subject Tribes to state dominion. Under Congress’s trust responsibility, and under the oath that individuals elected to Congress have sworn to act as fiduciaries to Indian tribes, tribes become beneficiaries in a government-to-government relationship.

Only limited legislation is needed to properly transition jurisdictional responsibility from state courts to tribal and federal jurisdiction. The only thing this legislation needs to do is provide proper and appropriate allocation of resources and funding for the tribes to capacity-build their justice systems. Consequently, the Five Tribes would be more prepared to take over jurisdiction in the Indian Territory. This legislation would look much like Public Law 638, which acts for the benefit and self-determination of Indian tribes and their governmental institutions. Such a plan would be more successful and beneficial for both the state and Indian tribes.

Tribal Transitional Ideas under Fiduciary Allocations to Tribes from by Congress
In order to completely restore the sovereign tribal jurisdiction of the Five Tribes, the tribes must think like a nation vested with self-governance, not simply as managers in a corporation. It is encouraging seeing the Tribes establish committees, advisory groups and commissions to advise them. In the formation of such bodies to assist the Tribes, it’s important to create complete transparency with the tribal citizenry and leadership.

In establishing a advisory body, the Tribes should include proper input from its citizenry then identify how, who, why and what each person’s qualifications are in the area of transitioning a justice system from one government to a tribal justice system. There are a few attorneys who have done such a transition back in the early and mid-1990s regarding transitioning BIA justice systems over to tribal justice systems that have great knowledge and improve the learning and growing curve for the Tribes in their respective transitions.

There are several models for prototypes that I have seen or worked with over the years and it is important for all to understand that Tribal State jurisdictional arrangements can take years to fine tune but in the end the Tribe having jurisdiction over its internal tribal matters has always been a more efficient and more equitable outcome that improves justice in both systems. The following three phases are ideas that should be considered in restoring complete tribal jurisdiction of the Five Tribes over Indian Territory in Oklahoma. 

The First Phase
In order to get a baseline of where tribal jurisdiction stands, the following information is needed:

  1. Establish tribal steering committees or advisory groups and a Five Tribes advisory Group to liaison with the Federal Government on coordinating prosecutions with lawyers and others who have transitioned a justice system from one government to a tribal government.
  2. Obtain Data from the state courts on the number of Native American offenders tried in both misdemeanor and felony cases (currently estimated at 9%).
  3. The current monetary budgets of law enforcement agencies and courts of all counties within the territorial boundaries of the Five Tribes subject to the McGirt decision
  4. An assessment of current tribal resources on the counties indicated above
  5. Federal statistics, studies, data and information used for current Federal Funding to the State.
  6. Establish a steering committee of the Five Tribes to work jointly in creating a capacity-building plan for the justice systems of the Five Tribes and must analyze the information as set out above. 
  7. Determine all immediately available funding options for the tribal justice systems to begin assuming jurisdictional responsibility.
  8. Establish temporary agreements and contracts for transition of state jurisdiction to tribal jurisdiction. Such agreements would include state courts serving as temporary tribal courts over Native offender criminal cases and transfer of civil cases that would exclusively be under tribal jurisdiction, such as an Indian Child Welfare case. In the event that state courts or the State of Oklahoma refuses to enter into such an agreement, contracting visiting judges, hiring certain staff, and vetting volunteers who could potentially serve on rotating circuit court within the Choctaw nation (or similar temporary courts with the other Five Tribes) could be used until federal resources are obtained.
  9. Draft legislation for the “Five Tribes Justice System Resources Allocation Act of 2020” by October 2020.
  10. Further review and update Tribal Constitution and law and order codes to be consistent with current federal law and restoration of tribal sovereignty.

The Second Phase
Once the above has been done, the following actions should be commenced:

  1. Find and acquire appropriate facilities for tribal courts and law enforcement to use as support locations and offices in the tribal territories.
  2. Hire and/or enlist volunteers to be vetted and trained as tribal court staff, law enforcement, and other support staff for the tribal justice system
  3. Contract with various training programs and entities to train law enforcement, court management, and other support staff
  4. Implement and begin operation of tribal circuit courts
  5. Continue any and all legislative efforts for federal allocation of resources and funding
  6. Consider all other funding sources and a possible tribal bond package
  7. Infuse funding into operating transitional court systems
  8. Establish a steering committee to observe operations and plan for assumption of full jurisdictional responsibility
  9. Create a liaison to work with U.S. Attorney’s Office on Federal Major Crimes Act prosecutions and encourage special U.S. Attorney relationship with liaison between the tribe and the federal government
  10. Commission meetings and review of information and reports on law enforcement and justice system operations

The Third Phase
As a final phase in the transition to expanded tribal jurisdiction and sovereignty, the following should be done:

  1. Evaluate a timeline for full tribal assumption of jurisdiction in tribal court
  2. Continue both resourcing, funding, and training of law enforcement and court staff
  3. Maintain cross-deputation agreements with state law enforcement agencies and retain resources to supplement state agencies in cross-deputation role of tribal justice system
  4. Institute alternative peacemaking Courts and specialty programs for substance abuse in diversion rather than prosecution models on limited offenses.
  5. This is not an exhaustive list, but merely a list of suggestions and guide for consideration and discussion by tribal leaders and citizens of all Tribal Nations.

As example of a tribal jurisdictional capacity building plan: as a young Native American attorney at the Cheyenne River Sioux Tribe, I participated in leading the transition of the Tribe from Bureau of Indian Affairs Control to Tribal Courts and Tribal Police Control via the prosecutor’s office and without the same amount of resources available to the Five Tribes. The Tribal justice system was able to create a substance abuse treatment facility inside of the correctional facility and jail and was a first in Indian Country and perhaps the nation. The Cheyenne River Sioux Nation created a model and an example of a sovereign tribal justice system on a reservation.

There are two other thoughts on this issue of survival as sovereign tribal nations that come to mind. First, all the involved in pathway forward since the ruling should consider before making a decision: what does a person profit if they gain the world but lose their soul? And the other is that they should consider that tribal traditional communal concepts on life and liberty function in a traditional and honored society is that the needs and future of the many out weight the profit seeking and wants of the few.

Yakoke Thanks for your time, attention and consideration.

J. Eric Reed is a citizen of the Choctaw Nation. He practices law in Texas, specializing in Native American Law, Criminal Defense Law, International Indigenous and Human Rights Law and Military Court Martials.. This opinion is his own.

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