What Oklahoma’s governor and others get wrong about tribal sovereignty

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Native American leaders are again at odds with Oklahoma Republican Gov. Kevin Stitt.

The governor’s comment about a landmark US Supreme Court case is “irresponsible” and “part of a larger push to eradicate tribal sovereignty in this country,” Crystal Echo Hawk, a member of the Pawnee Nation of Oklahoma and the president and CEO of the social justice organization IllumiNative, told CNN.

Last month, Stitt claimed on Fox, a network that’s developed its own grammar of grievance, that his state can no longer prosecute certain people because of the so-called Indian card.

“This all started when (Jimcy) McGirt, a child rapist, showed his ‘Indian card’ and got his conviction overturned,” Stitt said, his remark undermining the rigorous and varied standards that Native American tribes use to determine eligibility for citizenship.

The governor was referring to McGirt v. Oklahoma, a 2020 US Supreme Court case that involved a Native American man. In the case, the court said that much of eastern Oklahoma remains an Indian reservation. In consequence, Native Americans who commit crimes there must be prosecuted in tribal or federal courts, not local or state courts.

Stitt ignored why McGirt might be one of the most significant Supreme Court cases ever: In reaffirming the Muscogee (Creek) Nation’s political and territorial boundaries as established by treaty guarantees, the court delivered a massive win for tribal sovereignty – for the right of Native Americans to govern themselves.

“That the government must keep its promises and follow the law should hardly be controversial,” Julian Brave NoiseCat, a member of the Secwepemc and St’at’imc nations, wrote shortly after the case was decided. “Yet for the treaty rights of Indigenous nations to finally be recognized – by an appointee of Donald Trump, no less – is bracing, perhaps even startling, to me and other Native people, given how long the United States has denied tribes their dignity, and how this administration has elsewhere attempted to turn back the clock.”

Paying no mind to any of that history, Stitt instead nourished the trope that Native land is lawless, in what seemed to be an appeal to the prejudices of his base. Further, he employed race-baiting; he repeatedly characterized tribal sovereignty not as a political classification but rather as a racial one.

What follows is a closer look at what Stitt and others get wrong about issues related to Native American rights, and why these falsehoods can be so damaging:

During his interview, Stitt failed to mention some crucial details about the McGirt case.

For one, while it’s true that the Supreme Court vacated McGirt’s state convictions for first-degree rape by instrumentation, lewd molestation and forcible sodomy, a federal jury later convicted McGirt, who was sentenced to life imprisonment.

In omitting key facts about the case, Stitt appeared to invoke the timeworn narrative that, without state intervention, crime in Oklahoma – and specifically on Native land – would go unchecked.

“The ‘Five Tribes’ in eastern Oklahoma – Muscogee (Creek) Nation, Cherokee Nation, Choctaw Nation, Chickasaw Nation and Seminole Nation – share a common history where external narratives and scare tactics of ‘lawlessness’ inside tribal jurisdictions have been invented and recycled to justify incursions on tribal sovereignty and limit Indigenous autonomy,” Stacy Leeds, a former Cherokee Nation Supreme Court justice and a former special district court judge for the Muscogee (Creek) Nation, wrote in 2020. “It is necessary, so the story goes, to bring in non-Native police powers and non-Native legal institutions for the sake of bringing law and order to Indian Country.”

Echo Hawk expressed similar sentiments and also pointed out that Stitt’s remark undermined some of the essential public safety work that many are advancing in the state.

“There are strong partnerships between tribal and local law enforcement around public safety that have always worked very well,” she said. “Tribes are investing in building their capacity and ensuring that people are held accountable.”

But that isn’t the story Stitt told.

The governor also wrongly characterized tribal sovereignty. In particular, he portrayed it as an issue of race.

“When you think about who is an Indian, you can be 1/500th or 1/1000th,” Stitt said on Fox. “I’ve actually got my ‘Indian card,’ and my six children with blonde hair and blue eyes all have their ‘Indian cards.’”

But tribal sovereignty isn’t based on race.

“The governor kept referring to ‘Indian cards.’ But tribal sovereignty isn’t a racial classification. It’s a political classification,” Echo Hawk said. “That’s such an important thing for Americans to understand – that Native Americans, we’re citizens of our tribal nation, and we’re citizens of the US. And tribal sovereignty pre-dates the US Constitution. It’s something recognized by the government and makes up an entire body of law known as federal Indian law.”

What might explain Stitt’s race-baiting? Echo Hawk offered that the governor’s comment exemplifies a broader pattern within the Republican Party of scaring conservative voters about problems that don’t exist.

“Stitt’s administration has been using misinformation and scare tactics to attempt to really polarize Oklahomans – and I think even the rest of the country – and manufacture a false public health crisis,” she said. “(Fox host) Tucker Carlson said that all of this is part of the ‘equity agenda’ that the left is building to disenfranchise ‘real’ Americans – to discriminate against White people.”

In attacking the McGirt decision, Stitt and others are hurting everyone, not just Native Americans.

Maybe one of the most crucial outcomes of the case is that it has bolstered “cooperative federalism, or the sharing of responsibility among different governments to work together to govern people at the local level,” the Wayne State University political scientist Kirsten Matoy Carlson recently wrote for The Conversation.

It’s a partnership that the state of Oklahoma could participate in and that tribal governments have made clear they want. But Stitt and others like him refuse, and their stubbornness helps no one.

“By resisting the McGirt decision, state officials are missing an opportunity to build connections among, and improve government services for, all the people who live in Oklahoma,” Carlson explained.

Notably, those missed connections also are cultural.

“It’s important to understand that Native people are the original people of this land. And yet we’ve largely been erased from the American story,” Echo Hawk said. “We’re seen as relics of the past and as caricatures: We’re pitiful. We’re a mess. We’re lawless. We’re problems to be solved. And that couldn’t be further from the truth.”

She added, “Like all people, Native people are invested in ensuring that we have safe communities and building a better future.”