The Oklahoma Attorney General and the Cherokee Chief are at it again
Suzan Shown Harjo.
Maskokvlke! Tsalagi! Lookout, Muscogee people and all sovereignty champions!
I am sorry to tell you that the Oklahoma Attorney General and the Cherokee Chief are at it again. This time, the danger is clear, present and cannot be explained away by sock puppets mouthing the word “sovereignty.”
Begging your pardon for saying what’s up in plain language: Today, now, this hour, Oklahoma is trying to win in the back rooms of Congress what it could not win in the high court. Straight up! This is no time to be polite about it or for being distracted by pearl-clutching gasps for unity at all costs—not when unity means don’t speak out against those plotting mischief and harm to Muscogee (Creek) Nation. What would be a “win” for Oklahoma? Wiping out the Muscogee Nation’s great victory for sovereignty, for all Native Nations’ sovereignty!
Despite decades of Tribal Nations’ functional agreements with Oklahoma and concerted efforts to retire Chief Justice Marshall’s articulated model of states as the “deadliest enemies,” the state that was built on Native lands in Indian Territory seems bound and determined to reclaim its title and, embarrassingly, while its governor is Cherokee.
Just this past week, Principal Chief Chuck Hoskin, Jr., wasted no time in praising OK General Mike Hunter’s “framework for federal legislation relating to McGirt.” The OK AG (the state legal officer who lost the McGirt case—just saying) publicly announced his “proposal” by letter addressed to the leaders of all Five Nations (Cherokee, Chickasaw, Choctaw, Muscogee, Seminole), as well as to the entire Oklahoma congressional delegation.
Muscogee (Creek) Nation—the only Nation whose Reservation was on trial before the Supreme Court in McGirt—was not invited to the Hunter/Hoskin conversations that led to this latest “proposal.” At this time, the lobbying is fast and furious from the State Capitol in Oklahoma City to Capitol Hill in Washington, DC, as the state of Oklahoma and its faithful Indian companions are trying to get Congress to undermine Muscogee Nation’s sovereignty and Treaty rights.
Feel like déjà vu? Seeing visions of what we’d hoped were bygone days of Andrew Jackson?
Maybe you thought, after all the criticism, Hunter and Hoskin abandoned the “Agreement in Principle.” Maybe you were persuaded by fancy videos and repetition of the word “sovereignty.”
But, do not be fooled. Although Cherokee Nation’s attempt to voluntarily surrender the sovereignty that Muscogee Nation saved in McGirt failed this past summer, Chief Hoskin seems hell-bent on making it work this fall.
A brief review of what the Chief and OK AG have done before helps us understand what they are trying to do now, as their MO remains unchanged.
This past summer, the Cherokee Chief tried to peddle an “agreement” with the OK AG whereby the five Nations would “agree” to ask Congress to pass legislation codifying the Supreme Court’s harmful standard in Montana and making Oklahoma a P.L. 83-280 state when it comes to criminal jurisdiction. When Muscogee and Seminole Nations said no, and did not consent, Hoskin continued anyway.
Advocates working to end domestic violence and sexual assault against Native women, however, would not be silenced. They stood up and spoke out against the Hunter-Hoskin “agreement,” and explained how it would harm Native women and children. All of Indian Country (including the National Congress of American Indians and just about every other tribal organization) stood with MCN and spoke out against the Hunter/Hoskin tribal sovereignty-sacrificing “agreement.”
Hunter called our Native women DV advocates “sovereignty hobbyists.” Did Hoskin publicly reprimand Hunter for his attack? Did Hoskin tell Hunter it is not appropriate to refer to Native women advocating to end assault on Native women as “hobbyists?” No, he did not!
I suppose it’s too much to expect Hunter and Hoskin to appreciate or value the connection between sovereignty and safety for Native women, or for them to understand why women of Native Nations are more likely to be raped, murdered, or assaulted than any other US population—when he does not understand or respect the concept of sovereignty at all. I hope it's not the case that they understand it all too well and are doing what they’re doing anyway.
Fast forward to October, after we survived the Hoskin/Hunter sovereignty lobbyists trying to sell or lease Muscogee Nation sovereignty to Senator Jim Inhofe (R-OK) this past July and August. The Senator stated he would have a legislative “solution” to the Muscogee Nation victory in the Supreme Court by the end of August. It’s now October and they have come forward with nothing.
Indian Country’s opposition to the Hunter/Hoskin “Agreement” stopped it, dead in its tracks. You did that! We did that. Maskokvlke, Seminole and Tsalagi and all Native Peoples, together, did that! Now, that’s unity!
But, the Hunter/Hoskin team has not given up. This past month, Chief Hoskin welcomed U.S. Attorney General William Barr (yes, that Barr, of the President’s lawyer fame) at Cherokee Nation for a private meeting to discuss post-McGirt legislation—a meeting that Muscogee (Creek) Nation was not permitted or even invited to attend.
There is no evidence that Hoskin attempted to reach out to, or invite, Muscogee Nation Principal Chief David Hill to this meeting. Wow. Can you imagine what would happen if the situation were reversed? What if the Muscogee Chief and the US AG huddled up to “fix” an historic Cherokee legal victory and locked out the Cherokee Chief? There would be tornado-topping howls from Tahlequah. As is, Chief Hoskin is playing the victim and saying that opposing the dastardly legislation is Indian-against-Indian, because Cherokee Nation is for the state legislation.
That is absurd. It is, as it has been throughout the arduous litigation, Muscogee Nation versus Oklahoma. Cherokee Nation, by being the state’s sidekick is being led into a stronghold wall of nearly 600 Native sovereignties.
Maskokvlke have worked very hard with Tsalagi to help historical, ever-present wounds to heal and scar over. The Cherokee Chief’s siding with the state rips off the scab and time collapses. We remember Horseshoe Bend. We also have grieved for the Jackson treachery of his allies, once they were no longer useful to him to kill or move the Creeks he despised. Turned out, he could not abide any Native Peoples and wanted our lands for his base of land-rushers and squatters, and for the states that maintained the Indians must be moved, in accordance with Manifest Destiny. This is happening again, and we will not abide.
Hoskin’s super exclusive (but no longer secret) meeting with AG Barr is offensive for many reasons. One is that it was the Attorney General’s first trip to Indian Country in an entire year, and Barr used it to visit one Tribal Nation to discuss how to legislatively “fix” the victory of another, without inviting the Nation they think needs fixing. Chief Hoskin’s refusal to invite Muscogee Principal Chief David Hill to be a part of that conversation is inexcusable.
But, this is how Hoskin operates. It’s not in secrecy, because we all know he is doing it. But it is exclusive. He’s constantly holding meetings and having conversations about Muscogee Nation’s sovereignty—and the inherent sovereignty of all Tribal Nations—that only he is invited to participate in.
The meeting with Barr was not a secret—but Cherokee Nation waited until the last minute to announce it. And when it did, Native Peoples in OK questioned why Hoskin would do this and not invite a single leader from Muscogee Nation to sit at the table and be a part of the conversation. Did he respond to this criticism and invite anyone from Muscogee Nation? No. Their talk was private, without any attempt to involve the Nation whose Supreme Court victory they were planning to legislatively erase!
And why is Hoskin complacent with Barr discussing anything other than the national crisis of Missing and Murdered Indigenous Women and Girls, about which Barr purports to care. Today, our Native women are more likely to be murdered than any other US population. If a tribal leader is going to meet with the US AG in Indian Country, that tribal leader must insist that the US AG not leave without first meeting with Native women advocates to discuss MMIWG. Hoskin did not do this.
Native women advocates were denied an invaluable opportunity to meet face to face—masked and socially distanced, of course—and discuss one of the most serious crises haunting our Tribal Nations today. All Hoskin had to do was insist that, while at Cherokee Nation, AG Barr meet with the Native women advocates working to address MMIWG in Oklahoma.
Ironically, both President Shawn Partridge of the Board of Directors of the Native Alliance Against Violence and President Cherrah Giles of the Board of Directors of the National Indigenous Women’s Resource Center are Muscogee (Creek) Nation citizens. Perhaps Hoskins’ mission to silence our Maskokvlke in this critical conversation is more important than the opportunity to address the crisis of MMIWG with the U.S. AG. This is very sad.
Of course, if the Cherokee Chief had any real interest in addressing the crisis of MMIWG, he would stand with Muscogee Nation and the rest of Indian Country and make clear that nothing in the Supreme Court’s McGirt decision requires “fixing.” He would, like Muscogee Principal Chief Hill has done, tell Hunter, Barr, and Senator Inhofe that the Supreme Court’s decision in McGirt must be protected and preserved at all costs.
But, of course, he is not doing that. Hoskin continues to work behind the scenes to push legislation premised on the false narrative that something is wrong with the Supreme Court’s decision and it must be “fixed.”
This past Wednesday (October 21), AG Hunter announced his latest sovereignty-sacrificing solution: a mere three-page plan, that once again invites Congress to disallow Muscogee Nation’s exercise of its inherent sovereign and treaty rights by making Oklahoma essentially a P.L. 83-280 state. That would put the state in charge of certain governmental and individual rights and decisions regarding family health and safety, property, environment and service programs, even reverting back before self-determination laws.
Just how far-reaching this simple solution would be is unknown, but anything would be an over-reach This dastardly plan would restore the very jurisdiction the U.S. Supreme Court just determined Oklahoma had been exercising illegally for over a century, since colonially coming into existence in 1906.
This would be the most ham-fisted legislative slight-of-hand since Senator Jackson and other Indian fighters, including his former Aide-de-Camp in wars against Maskokvlke, were on the Senate and House Indian Affairs Committees and crafted another simple plan, barely two pages, to take care of the Indians. Later, as President, Jackson called for Congress to enact his plan and then signed it into law as the 1830 Indian Removal Act, which unleashed targeted coercion to get Native Peoples to “agree” to move from Georgia and other Indian-hating states.
Supreme Court Chief Justice John Marshall tried to stop the carnage and genocide that was taking place at a brisk walking pace, witnessed by spectators and reported in newspapers along the trails from all over what was then the United States, as the disoriented and dispirited were escorted at bayonet- and gun-point, to be funneled into the new, permanent treaty lands in Indian Territory.
As the US Army and state militias wrenched Native People from their homes and Ancestors, foods and medicines, lands and sacred places and fishing, gathering and hunting areas, the scofflaw-in-chief is said to have taunted that the jurist made his law, but could not enforce it. The Jackson solution was transparent, out in the open, violent and—much to the horror of untold numbers of displaced, disappeared and fallen Native Peoples—it worked.
Born of the same avarice and racial superiority attitudes, P.L. 83-280 sprang from Members of Congress from Oregon, Wisconsin, Utah and other bastions of white privilege, including the namesake of McCarthyism. It was a 1953 solution—also a mere three pages—a Manifest Destiny law from the grey heart of the failed termination laws that worked fine for speculators, developers, banks, businesses, clear-cutters, wildcatters and squatters, for everyone but those Native Peoples under the thumb of state jurisdiction.
Presidents and Congresses have backed away and run away from those laws, promising never to enact them again. Yet, here comes the Hunter solution—which must be owned by Inhofe and Hoskin and any who are on the sidelines watching the removal go by.
Principal Chief Batton of the Choctaw Nation reacted to the Hunter plan almost immediate, stating:
“We oppose Oklahoma Attorney General Mike Hunter's proposal for congressional action following the Supreme Court's ruling in McGirt v. Oklahoma, because it is premature and may prove to be unneeded. We welcome, however, his proposal for additional dialogue. Before we discuss legislation at the national level, we must first lay the foundation for a future framework. The Five Tribes are already doing this through our individual sovereignty commissions, dialogue with elected officials and state agencies, and in partnership with the federal government. We are making substantial progress. We should take the necessary time to reason together through these issues and avoid repeating past mistakes in federal legislation regarding Indian Country.”
Bravo Chief Batton!
Muscogee (Creek) Nation echoed these sentiments, stating:
“We have yet to examine the details of Attorney General Mike Hunter’s latest request for federal legislation responding to the McGirt decision, but we have still not found any compelling evidence demonstrating such a federal response is necessary. At first look, it appears that what AG Hunter is proposing already exists under federal law. P.L. 280, allows for the transfer of subject matter jurisdiction to the state. But the historical record shows that tribes that have voluntarily relinquished their authority have found themselves trapped and unable to ever recover their sovereignty.”
And Seminole Nation had this to say:
“While the Seminole Nation appreciates the sentiment of consensus building and intergovernmental cooperation upon which we believe Attorney General Mike Hunter’s proposal was premised, we oppose the recommendation for Congressional authorization of state-tribal criminal jurisdiction compacts. By way of example, the Seminole Nation, like all the Five Tribes, already has a state-tribal agreement on criminal justice in the area of policing through cross-deputization. These intergovernmental agreements demonstrate the effectiveness of existing state-tribal government-to-government cooperation and coordination, absent Congressional action.
“Further, any legislation enacted by Congress will deeply erode tribal sovereignty. There is simply no basis to request Congressional action because the law is clear under McGirt. It is the responsibility of the federal government to handle certain crimes committed in Indian country by Indians. Any legislation providing the State with rights to exercise criminal jurisdiction on-reservation will come at the expense of other important attributes of sovereignty. For these reasons, the Seminole Nation opposes federal legislation relating to state-tribal criminal jurisdiction compacts.”
Chief Hoskin’s statement, in contrast to the other three Nations’ Chiefs, does not question the wisdom of sending a proposal to the Oklahoma congressional delegation that has not actually been discussed or reviewed by all Five Nations. Does the Chief not care whether the other Five Nations have been invited to weigh in on or consider this proposal? Does he care only for deals struck in the private meetings and discussions that Chief Hill was not invited to?
Only twenty-four hours after Hoskin and Hunter unveiled their October 21 P.L. 83-280 "proposal," Governor John Kevin Stitt (Cherokee) announced that his "Sovereignty Commission" recommends reversing the Supreme Court's decision and effectively disestablishing tribal reservations, including the Muscogee Reservation as affirmed in McGirt.
Everyone can see what Hoskin, Hunter, and Stitt are up to, and Inhofe is the horse they rode in on. The Governor's ridiculous suggestion--that Congress should essentially disestablish all reservations in Oklahoma—is designed to make us think we must choose between the lesser of these two evils, but the lesser of evils is still evil.
Hunter and Hoskin came first--with their proposed sacrifice of sovereignty, a P.L. 83-280 proposal. Twenty-four hours later, Stitt jumps in with his threat that he is going to ask Congress to do something they are definitely not going to do. The Democrats in the House are not in the business of doing Andrew Jackson's dirty work, and there are many Republican allies in the Senate.
Hoskin’s press team worked overtime this past Thursday, and the Chief was all over Oklahoma TV as soon as the Governor made his announcement. Hoskin was incredibly eager to attack Stitt's proposal, using words like "sovereignty" and "tribe" to argue that his proposal for legislation with Hunter is somehow different from the Governor's. It's not. Repeat, same canines, same dog. Governor Stitt's idiotic statements are no reason to buy the sovereignty-sacrificing solution of federal legislation that Hoskin and Hunter are peddling.
Adding sharp turns to this twisty story, there’s this. After Chief Hoskin refused to allow Muscogee Nation leaders to attend the meeting he scheduled with the U.S. Attorney General in Tahlequah, General Barr invited Muscogee Nation leadership to travel to D.C. and meet with him in person there. It's remarkable that Mvskoke leaders had to travel hundreds of miles during the height of a global pandemic to discuss the Supreme Court victory in McGirt, when Hoskin was able to orchestrate his own meeting in his own Cherokee home town of Tahlequah to discuss the case Muscogee Nation won. But, this is the resilience and perseverance of our Mvskokvlke people. When someone slams a door, Maskokvlke simply make a new one. Maskokvlke do not give up and do not surrender.
Muscogee Nation leaders report that, in the meeting with the U.S. Attorney General this past Friday, they stressed the reasons why the Hunter/Hoskin P.L. 83-280 proposal is unnecessary and does not justify post-McGirt legislation. They let the Attorney General know that, in discussing legislative needs for Indian Country, it is important to meet directly with the Native women who run organizations working to end violence against Native women, such as the Native Alliance Against Violence and the National Indigenous Women's Resource Center.
The Muscogee Nation leaders stressed the need at this moment for the federal government to step up and fulfill its trust responsibility to Tribal Nations and provide funding for tribal government and institutions.
Truly, addressing McGirt is not about giving the State what it wants (and what Hoskin is apparently eager to give away). Instead, it is about the promise that Justice Neil Gorsuch referred to in his majority opinion. The promise was that Muscogee Nation Reservation borders would exist forever more. But, in addition to that, long before Oklahoma came into existence, the federal government promised that, in exchange for the lands Muscogee Nation ceded in Alabama and Georgia, the federal government would support our governments and tribal self-determination.
It is time, at long last, for the federal government to do right by Muscogee Nation. I hope that Chief Hoskin comes to his senses and soon, and that he finds a better class of advisers and a more ethical crowd, ones who can help with something other than playing fast and loose with the truth and other Peoples’ rights.
Suzan Shown Harjo, Cheyenne & Hodulgee Muscogee, is a writer, curator and policy advocate, who has helped Native Peoples protect and recover sacred places and over one million acres of lands. Guest Curator and Editor of the award-winning exhibition (2014-2021) and book (2014), Nation to Nation: Treaties Between the United States and American Indian Nations, she has been awarded a 2014 Presidential Medal of Freedom, the highest U.S. civilian honor.