Law & Principles, Culture & the Family

Cherokee Nation chief bans display of Oklahoma state flag

June 8, 2022

Ray Carter

Through a new executive order, Cherokee Nation Principal Chief Chuck Hoskin, Jr. has prohibited display of the state flag of Oklahoma at tribal facilities.

Hoskin’s executive order declares that the chief of staff of the Cherokee Nation shall “cause all flags of the State of Oklahoma to be removed from Cherokee Nation properties” by Sept. 1.

It’s the latest indication that some tribal officials and activists do not consider themselves citizens of Oklahoma now that the U.S. Supreme Court has ruled their tribal reservations were never disestablished, creating numerous jurisdictional questions on everything from public safety to taxation.

Hoskin’s executive order declares that it “shall be the express policy of the Cherokee Nation to ordinarily limit the display of flags on Cherokee Nation properties to the flag of the Cherokee Nation and flag of the United States.”

The order includes a section that specifically limits display of the Oklahoma state flag, stating, “The flag of the State of Oklahoma should not ordinarily be displayed on Cherokee Nation property or at Cherokee Nation public events.”

The order allows display of the Oklahoma state flag only with express “approval” from tribal government leaders, mostly in instances of “temporary display” when “a dignitary representing the state is present as a participant in the event as a demonstration of respect for the dignitary” or at events to honor the service of individuals in the Oklahoma National Guard.

Hoskin’s order to remove the Oklahoma state flag appears to echo the opinions voiced by some activists at a July 2021 Tulsa forum that focused on challenges created for victims of crime by the U.S. Supreme Court’s decision in McGirt v. Oklahoma, which held that the Muscogee (Creek) Nation’s reservation was never formally disestablished for purposes of the federal Major Crimes Act.

The McGirt ruling has since been expanded to include the reservations of the Choctaw, Chickasaw, Cherokee, Seminole, and Quapaw, impacting nearly half the landmass of Oklahoma.

‘We Are All Oklahomans’

At the 2021 forum, Tulsa County District Attorney Steve Kunzweiler declared, “One thing we know for sure: We are all Oklahomans in this room.” That statement was immediately met with vocal objections and denunciation from numerous tribal activists in the crowd, including some who shouted to identify themselves by tribal affiliation, not as state citizens [related video posted below].

Hoskins’ order comes as Cherokee Nation officials await the outcome of a U.S. Supreme Court case filed by the state of Oklahoma, which is seeking a ruling that would allow state law enforcement officials to prosecute non-Indian criminals who target Indians on Oklahoma reservations.

Currently, neither the state nor tribal officials can prosecutive those criminals, and the federal government has declined to prosecute many cases.

The Cherokee Nation and other tribes filed briefs in that case opposing Oklahoma’s request.

During oral hearings conducted in April, some U.S. Supreme Court justices appeared baffled that anyone would oppose granting the state the power to prosecute those criminals.

U.S. Supreme Court Associate Justice Brett M. Kavanaugh noted, “I’m not sure how Indian victims can be harmed by having more prosecutorial authority to fill a gap in Oklahoma where crimes are not being prosecuted against Indian victims.”

Hoskins’ flag order also comes as some tribal officials are seeking to expand McGirt to include other areas of law, including taxation. In May, the Muscogee (Creek) Nation announced it would file a federal lawsuit arguing that all Muskogee citizens who live on the tribe’s reservation—which includes most of Tulsa—are exempt from paying state taxes.

Hoskin has publicly said that “taxation doesn’t attach to individual Native Americans who live on reservations.”

Because of potential exemptions for tribal members on reservation land, the Oklahoma Tax Commission has estimated the McGirt decision could reduce Oklahoma state tax collections by $72.7 million per year from reduced income tax payments and $132.2 million annually from reduced sales/use tax collections.

Tribe Active in Oklahoma Politics

Yet, even as the Cherokee Nation is removing the flag of Oklahoma from its properties, tribal officials continue to take an active role in political campaigns that will impact the direction of the Oklahoma state government.

A June 3 tweet from the Cherokee Nation bragged, “Cherokee Vote held a special voter registration drive yesterday at One Fire Field to get Cherokee voters registered and excited for the upcoming Oklahoma primary election happening on June 28.”

A more significant sign of Cherokee Nation involvement in state government can be seen in numerous campaign contributions provided to candidates across the state.

According to Oklahoma Ethics Commission data, the Cherokee Nation and its affiliate Cherokee Nations Businesses LLC have directly contributed at least $932,125 to a wide range of candidate campaigns and related causes in recent years, including donations to the Republican State House Committee, the Oklahoma State Republican Senatorial Committee, Democrats of the Oklahoma State Senate PAC, and legislative leadership.

The Cherokee Nation’s contributions include $10,000 given to Oklahoma Speakers Ball, Inc., on Feb. 2, 2021. The ball is a social event for lawmakers, lobbyists, and other individuals that is hosted by the speaker of the Oklahoma House of Representatives, a position currently held by state Rep. Charles McCall, R-Atoka.

And ethics records show numerous individuals working for the Cherokee Nation or its various entities have made individual financial contributions to numerous state political campaigns.

Although a significant amount of the Cherokee Nation’s funding comes from casinos and other businesses it operates, the tribe is allowed to make political contributions that are illegal for comparable business entities.

While tribal governments can make direct contributions to Oklahoma state political candidates, under state law private corporations cannot do the same.

State ethics rules expressly state, “No corporation or labor union may make a contribution to a political party, a political action committee or a candidate committee …” An accompanying commission comment states, “Corporations and labor unions may exercise political speech in the form of financial support or otherwise through political action committees sponsored by the corporation or labor union.”

However, when it comes to tribal governments, those same ethics rules declare, “Contributions from Indian tribes fall within the individual contribution limits set out in this Rule and are reported by the candidate committee.”

Despite the apparent animus some Cherokee leaders hold towards the Oklahoma state government, it’s not clear that most Cherokee citizens hold similar views or object to flying the Oklahoma state flag.

On its website, the Cherokee Nation states that “the Cherokee Nation is the largest tribe in the United States with more than 390,000 tribal citizens worldwide.” Recent reports indicate tribal-enrollment efforts have since boosted that total to more than 400,000.

Of that total, the tribe’s website states that more than 141,000 of its citizens reside “within the tribe’s reservation boundaries in northeastern Oklahoma.”

However, the tribal government is controlled by only a small fraction of Cherokee citizens, based on tribal election data.

In the 2019 general election for chief, which was won by Hoskin, just 13,795 votes were cast in that race, representing less than 4 percent of all Cherokee citizens and less than 10 percent of those residing in Oklahoma.

Those figures are similar to the 2015 tribal general election turnout, when just 19,279 votes were cast for Cherokee Nation chief.

Even as he banned display of the Oklahoma flag on Cherokee property, Hoskin’s order also stated, “In view of the unique government to government relationship between the Cherokee nation and the United States, display of flags of both nations on Cherokee Nation properties are appropriate.”

The Cherokee Nation’s stance towards the U.S. government has not always been as welcoming. The Cherokee Nation’s history includes taking up arms against the U.S. government in the Civil War, when the Cherokee Nation was one of only a handful of tribes to ally themselves with the Confederacy. The tribe’s stance was tied in part to its defense of chattel slavery as Cherokee citizens reportedly owned as many as 4,600 black slaves at the time.

However, the tribe is also seeking increased federal funding today due in part to McGirt.

The deputy attorney general for the Cherokee Nation recently acknowledged that the tribe “does not own or operate any adult or juvenile detention facilities” and has had to enter lease agreements with county jails to hold individuals incarcerated through its tribal courts, which have seen an influx of cases following McGirt.

A letter sent to congressional appropriations leaders by members of Oklahoma’s congressional delegation earlier this year warned that the McGirt decision was “effectively bankrupting the affected tribes in Oklahoma” and requested that an additional $308 million be provided to the federal Bureau of Indian Affairs “for tribal justice needs in Oklahoma.”

An amicus curiae brief filed by the Cherokee Nation with the U.S. Supreme Court also stated that tribes whose reservations were recognized by McGirt “need more resources” to handle their newfound obligations.

And, at a July 2021 meeting of the Inter-Tribal Council of the Five Civilized Tribes, which includes the Cherokee Nation, tribal leaders passed a resolution stating that $80 million requested by President Biden for law enforcement activities related to McGirt is only a “first step” and that the increases endorsed by Biden “alone, are not sufficient.”

In requesting that tens of millions in new federal funding be directed to Oklahoma to handle McGirt challenges, the resolution stated that “tribal governments should receive the vast majority of these dollars” and called on Congress “to ensure that the vast majority of funds allocated for McGirt response flow directly to tribal governments, who are most acutely experiencing the effects and shouldering the cost burden of McGirt.”