Editor’s note: This article is the opinion of Ponie Lance McCrary. It has been edited for length
I never really grew up in the State of Oklahoma. I grew up on a reservation called Indian Country. And so did everyone who grew up in the area roughly between Oklahoma City and Arkansas.
More than 14 years ago, I worked in an externship program with Muscogee Nation District Court under former Judge Patrick Moore. One of the first things he ever showed me was an interesting law that existed in the Oklahoma State Constitution. Article 1, Section 3:
The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation; and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. Land belonging to citizens of the United States residing without the limits of the State shall never be taxed at a higher rate than the land belonging to residents thereof. No taxes shall be imposed by the State on lands or property belonging to or which may hereafter be purchased by the United States or reserved for its use. (Emphasis added)
He asked me what I thought it meant. I told him that it sounded like all Indian land in general is forever disclaimed by the State of Oklahoma. After taking a walk down memory lane, I began my usual internet research of the Oklahoma Constitution and found an article that seems to, in conjunction with the McGirt Supreme Court decision, render the State of Oklahoma powerless over Indian Country:
Section XXIII-8: Contracts waiving benefits of Constitution invalid.
Any provision of a contract, express or implied, made by any person, by which any of the benefits of this Constitution is sought to be waived, shall be null and void.
This suggests that AG Mike Hunter, Governor Stitt, or any other officials of the State cannot even contract with Native American people nor their tribes while Article 1 Section 3 exists. The lands of reservations of the Five Tribes are not part of Oklahoma — and according to the McGirt decision and the state’s Constitution, never have been. So the big question now is where do we go from here?
In this situation, it calls for the tribes to use the State facilities for tribal governing purposes just like the facilities are doing now. From judges to janitors, all state and county employees without CDIB cards should be immediately re-evaluated and possibly replaced with card-carrying Native Americans that are qualified and meet current tribal criteria.
I think most Native Americans agree that as a people we like commerce. We like shopping, buying cars, going to Wal-Mart, eating at buffets and barbeque joints. At a glance, it should all seem in the future as nothing but business as usual. Behind the scenes, the tribe should run things. Basically anything involving licensing would be run through the Five Tribes. This includes but not limited to driver’s licenses, business licenses, health licensing, attorney licensing, medical licensing, just about anything that requires licensing. Native governments can use federal marshal services and Native police instead of county sheriffs and state police.
Indian Country can and will collect its own taxes and federal funding, just like any other territory in the United States. It can evaluate on a case by case basis certain things like past state judicial decisions, business dealings, and land transactions to determine if the past actions were done in good faith.
Of course there will be growing pains. There will also be opportunities. Most smart tribal business and governmental officials know that Indian smoke shops and casinos are not truly the way to our future. These things were a means to an end. With our jurisdictional boundaries defined, the future well being of the tribe lies within our boundaries: riparian rights. Indian country holds the majority of the lake water within the tri-state area. We own the water. Even if others don’t see it that way, they still have to go through us to get to the water. This is the key to all future negotiations when dealing with our state neighbors.
Unfortunately NOW is not the time for compromise when it comes to jurisdictional issues. Now is the time to set up boundaries and rules. The Dawes Commission that was formed around the time of statehood had one primary goal: to assimilate the Native Americans to the American culture. As a people, our culture never died but lessons were learned and applied that came from the American culture: we lawyered up.
Ponie Lance McCrary is a licensed attorney with the State of Oklahoma and the U.S District Court for the Eastern District of Oklahoma. He also practiced in Cherokee and Muscogee Creek Nation tribal courts. He was born and raised near the town of Warner of Cherokee Nation.