Law & Principles

Hunter proposal raises tax, regulatory issues

July 16, 2020

Ray Carter

Oklahoma Attorney General Mike Hunter says he has reached an agreement with five tribal governments on proposed federal legislation that would address issues raised by a recent U.S. Supreme Court ruling.

However, the proposed agreement may raise more questions than it answers since its provisions appear to open the door for tribal governments to exercise greater tax and regulatory power in much of eastern Oklahoma.

In its recent ruling in McGirt v. Oklahoma, the U.S. Supreme Court found certain crimes involving American Indians on tribal land in Oklahoma must be prosecuted in federal, not state, court. While the decision directly affected land held by the Muscogee (Creek) Nation, it is expected to equally apply to the Cherokee, Chickasaw, Choctaw, and Seminole nations. The cumulative effect of the ruling could affect nearly half the state of Oklahoma, where 1.8 million people reside, including the city of Tulsa.

The relationship between Hunter and tribal governments is also one of candidate and major campaign donors.

Under the agreement announced by Hunter, the attorney general and officials from those five tribal governments will support federal legislation to “affirm” state criminal jurisdiction “over all offenders” on tribal lands in Oklahoma “with the exception of crimes involving Indians committed on Indian trust or restricted lands.”

The announcement did not specify how that would mark a change from the status quo created by the court’s ruling. The U.S. Census shows that 9.4 percent of an estimated 3.9 million people in Oklahoma are American Indian, or nearly 372,000.

The agreement also said that in the area of civil jurisdiction, “including the ability to legislate, regulate, tax, and adjudicate on non-criminal matters,” the proposed federal legislation should affirm a tribe’s civil jurisdiction “throughout their respective treaty territories.”

The proposed federal law would also grant tribes civil jurisdiction over non-tribal members when the “conduct” of non-members “threatens Tribal self-governance or the economic security, health, or welfare of the Tribe.”

“The relationship between the tribes and my office is based on trust and mutual respect,” Hunter said in his release. “And that synergism has been essential to the successful formation of this important agreement.”

The relationship between Hunter and tribal governments is also one of candidate and major campaign donors. In December 2019, CNHI reported that Hunter received $54,400 in tribal donations in 2017 and 2018, far more than any other candidate in the state during that period, based on data compiled by Hunter’s take from tribal entities was 41 percent greater than the Oklahoma candidate receiving the second-largest haul from tribal entities, and 153 percent greater than the third-ranked recipient.

Hunter’s office did not respond to a request to identify the individuals who represented the five participating tribes in the closed-door negotiations.

In a separate release, tribal officials indicated the proposed agreement leaves intact broad tribal power throughout eastern Oklahoma.

“We have long held that Cherokee Nation has a reservation, rooted in our treaties, as the Supreme Court of the United States has now affirmed,” said Cherokee Nation Principal Chief Chuck Hoskin Jr. “This proposed legislation will cement our reservation boundaries and the broad tribal jurisdiction the Supreme Court recognized in the McGirt decision.”

Hunter appears to have no authority to negotiate any formal agreement between the State of Oklahoma and tribal governments and does not appear to have the support of the one official who does— Gov. Kevin Stitt.

“The McGirt decision was a victory for tribes as it relates to our original treaty boundaries and sovereignty as well as criminal jurisdiction,” said Choctaw Nation Chief Gary Batton. “We support legislation that protects our sovereign rights to self-governance with limitations on state authority in tribal affairs.”

The tribes’ press release also declared, “Leaders of the Five Tribes said the Supreme Court’s ruling in McGirt makes clear their long-held position that the boundaries described in the Nations’ treaties with the United States remain intact and continue to mark treaty homelands. Each of the Nations’ constitutions affirm these boundaries, and each Nation has and will continue to exercise its sovereign powers within those boundaries.”

While Hunter can recommend changes to federal law, the likelihood of congressional action is uncertain, particularly given divided control of Congress. Democrats hold the U.S. House of Representatives and Republicans hold the U.S. Senate. Any changes to federal law would also have to receive the support of President Trump.

Hunter also appears to have no authority to negotiate any formal agreement between the State of Oklahoma and tribal governments and does not appear to have the support of the one official who does—Gov. Kevin Stitt.

The Oklahoma Constitution grants the governor “Supreme Executive power” and state law further elaborates that the governor “is authorized to negotiate and enter into cooperative agreements on behalf of this state with federally recognized Indian tribal governments within this state to address issues of mutual interest.”

That law does allow the governor to name a designee to negotiate such agreements, but Stitt has not named Hunter as a designee for any state-tribal agreements related to the U.S. Supreme Court’s McGirt ruling.

In addition, a 2004 opinion issued by the office of the attorney general found that the separation of powers provisions in the Oklahoma Constitution are not violated when the governor “enters into a cooperative agreement (sometimes referred to as a compact) on behalf of the State with a federally recognized Indian Tribal Government within this State” without legislative approval.

Hunter’s press release included no mention of Stitt or citation of any legal authority that would grant the attorney general the authority to act on behalf of the Oklahoma government in a state-tribal agreement.