An open letter: 'McGirt decision, self-determination and the future of the Five Tribes'
J. Eric Reed
J. Eric Reed
Attorney and citizen of the Choctaw Nation of Oklahoma.
Dear Chief Batton, Assistant Chief Austin, Speaker Williston and Choctaw Nation Tribal Council Members:
Halito! I am writing as a citizen of the Choctaw Nation and an attorney, scholar and advocate for Indigenous self-determination who has practiced federal Indian law and international Indigenous human rights for the last 25 years.
I am writing this letter in my individual capacity as a concerned Choctaw citizen and join in the Joint Choctaw Citizens letter written by other individual concerned Choctaw citizens provided to our leaders on July 21, 2020.
I incorporate all of the content, concerns, issues, thoughts, ideas and recommendations by reference in this letter to our leaders as well.
I would like to expand on some additional legal concepts, sovereignty issues, and factors that you should consider detrimental to the tribe about the state’s plan and that legislation is not needed or helpful also discussed in the Joint Choctaw Citizens letter.
First, the McGirt decision provides an excellent opportunity to build diplomatic relations between the tribe, federal government and state-based upon theories of equality which also empowers the tribes in this process.
Second, the restoration of jurisdiction to the Five Tribes is like the gates to the promised-land opening up for our tribes and our peoples to cultivate and grow tribal sovereignty.
It is deeply concerning to see a proposed agreement that would return our tribes to the shackles and yoke of state jurisdiction even before the ink dries on the order restoring jurisdictional sovereignty to our tribes.
After such a long battle to achieve self-determination, in the simplest terms, agreeing to such a Faustian bargain would set the absolute worst and most dangerous precedent in Indian Country against 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 Choctaw sovereignty and set a powerful precedent to protect tribal sovereignty in all of Indian Country.
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. It is a landmark precedent for all of Indian Country.
The ruling in the case is not based on treaty language and thus may not be abrogated by Congress simply through adverse political objectives of the day. For our Five Tribes, the ruling presents us with a return of sovereignty over tribal lands whereas engaged and informed Choctaws, we do not want to see the opportunity lost or bargained away but embraced and grown so that there is equality for our citizens now and in the future. Until 1907,
The Five Tribes exercised sovereignty and jurisdiction over their territorial boundaries and there is no reason our tribes should give that away to the state to maintain its jurisdictional dominion over the Five Tribes as status quo.
The Supreme Court has issued its order to “hold the federal government to its word.” Thus, the court order requires Congress to act in its trust responsibility to the Choctaws and Five Tribes. That trust responsibility does not let them turn a blind eye but requires the Congress to properly allocate funding and resources so that the Five Tribes can effectively rebuild our sovereign systems of justice and assume the criminal and civil justice responsibilities restored by the Supreme Court.
The tribe should consider that the way forward is to see this opportunity as a capacity-building approach for our tribal systems rather than allowing the state to intercede where they have lost and by the proposed agreement strip away tribal jurisdictional sovereignty because the state wants to maintain the status quo. Then take that agreement and have a congressional legislative act codify it into law.
The Five Tribes should also be wary of political moves to keep the state’s status quo despite the ruling with potential midnight riders to attach and run through stealthily as part of the recent legislative bills before Congress.
The Five Tribes have an opportunity for our nations to collectively and in some manner uniformly create a path to being collectively strong in a coalition to the effort of rebuilding our systems of justice.
More importantly, the McGirt decision creates a level ground in negotiating an agreement for a fair temporary transitional plan with proper terms.
Please consider the Oklahoma property law of “adverse possession” would still apply to individual allotted Choctaw trust lands under the proposed plan; however, with the restoration of our jurisdiction, those probate matters would be heard in tribal court rather than state courts.
By assuming the responsibility of jurisdiction, the Five Tribes would also have more opportunity to protect its people’s air, water and land environmental laws in tribal courts rather than state courts in the future.
The ruling creates exclusive jurisdiction for Indian Child Welfare cases in tribal courts within the territory of our tribes’ which improves prevention of child trafficking in addition to reduced costs of travel and logistics of Choctaw tribal experts, advocates and attorneys appearing in state courts.
It gives the Choctaws a mechanism to fight off any bad laws proposed in Congress that attempt to strip away tribal powers contrary to the ruling.
The beauty of the Supreme Court's opinion is that the language is based on intellectual honesty to uphold the law. It places the Choctaws and other Five Tribes in a strong position to forge any and all plans, compacts, agreements or memorandums of understanding with the state on the basis of equality rather than disparity from the previous status quo where no legislation is needed as the order stands as law.
The proposed solutions in appendix 2 of the Joint Choctaw Citizens letter set out a good starting point particularly for any plans or agreements with the state having a time-limited end date. Again, allocation of resources as a part of the trust responsibility of Congress to fulfill the required needs of law enforcement, prisons and court infrastructure as outlined in appendix 2 of the Joint Choctaw Citizens letter can be accomplished without giving up sovereignty to maintain the state’s wishes to go back to a pre-McGirt status quo in its proposal.
The proposed Choctaw Nation Sovereignty Commission is an excellent way to be open transparent and inclusive in this process and bring in a broad, traditional and holistic approach to assuming the control of jurisdiction in the Choctaw Nation or entering into any proposed plan with the state to implement full sovereignty. The tribal leaders might also consider creating a Coalition of Five Tribes advisory group for capacity building of the tribes' system of justice.
The ruling of the United States Supreme Court to “hold the federal government to its word” is like the court breathing fresh air into the miner’s canary of tribal sovereignty.
Together as nations, we can climb out of the darkness of the mine we’ve been forced to stay in through injustice for so many years. We must not forget history and be mindful that “like the miner’s canary,” the state political positions shift from “fresh air to poison gas” when it has power over all our native peoples.
Consider that we can ride this horse of opportunity into a new future together for the benefit of all our tribes and flourish.
I respectfully request our Choctaw leaders engage with all of our citizens and legal scholars to create a future grounded in a holistic approach of rebuilding our systems of justice and sovereignty in the area of criminal and civil jurisdiction in our territory.
Yakoke for your time, attention, and consideration regarding the tribal citizenry’s concerns and recommendations outlined in both letters.
I and other lawyers look forward to working with the Choctaw Nation in the process of building a great future for our citizens.
J. Eric Reed
J. Eric Reed worked as a fellow to Professor Robert N. Clinton who wrote and taught extensively on the issues of Criminal Jurisdiction in Indian Country in the United States. He was also a fellow to Prof. S. James Anaya who became Special Repertoire to the UN on Indigenous Peoples Rights is now Dean of the Colorado Law School. He has practiced criminal trial and appellate law for 25 years and served as Tribal Prosecutor and Special Assistant United States Attorney on the Cheyenne River Sioux Nation and Special Prosecutor on various Tribes in the United States. He lectured Native American Law at the University of Texas Dallas and other colleges. He is a Charter Member of the Native American Law Enforcement Association. Is a member of the Choctaw Bar and other Tribal Bar Associations. Board Member for the Native American Law Section of the State Bar of Texas. He is a citizen of the Choctaw Nation of Oklahoma.