Governor establishes commission to review Supreme Court decision's impact

Oklahoma Gov. Kevin Stitt issued an executive order on Monday, establishing a commission to examine the potential impact of the recent U.S. Supreme Court decision in McGirt v. Oklahoma on civil, criminal and regulatory issues. 

Executive Order 2020-24 authorizes the formation of The Oklahoma Commission on Cooperative Sovereignty. The commission will be comprised of people with business, legal and government experience. 

“We know that there is a lot of unpredictability right now,” Stitt said in a news release after the executive order was published. “We are committed to working with all Oklahomans, tribal and non-tribal, to create a practical and sustainable path forward. This commission is the first step.”

Leaders of the Cherokee, Chickasaw and Choctaw nations said they "continue to be committed to discussing the parameters of the historic Supreme Court decision." That ruling determined Congress never disestablished the reservation granted by treaty to the Muscogee (Creek) Nation, and "for purposes of federal criminal law" that reservation still exists. 

The tribal leaders, in a statement released after Stitt issued the executive order, said "any path forward requires strong collaboration between the Five Tribes." The leaders of the Five Tribes said they oppose any measure that would erode "our sovereignty or" turn "back the recognition of our reservation achieved through McGirt."

While the U.S. Supreme Court's decision specifically addressed the Muscogee (Creek) Nation and the reservation it was granted by treaty, many observers believe there are legal implications for all of the Five Tribes. Those tribes, which occupied most of what is considered now as eastern Oklahoma, were granted those lands by Congress after being forced to abandon ancestral homelands east of the Mississippi River.

Stitt's announcement came just days after Oklahoma Attorney General Mike Hunter and the Five Tribes issued a joint agreement of principles that was described Thursday as the framework for federal legislation. The following day, Muscogee (Creek) Nation Principal Chief David Hill and and Seminole Nation of Oklahoma Chief Greg P. Chilcoat issued statements expressing disapproval of the agreement of principles.

“As the chief I very much believe that collaboration between federal, state and tribal governments is critical and necessary following the Supreme Court’s decision in McGirt,” Hill said. “That collaboration, however, does not require congressional legislation.” 

Hill said while his tribe plans to pursue all appropriate intergovernmental agreements to ensure public safety within its borders and continue to build upon them, "the Muscogee (Creek) Nation will oppose any proposed legislation that diminishes" its sovereignty.

Chilcoat said his tribe never consented to the agreement nor was it involved with any discussions before it was announced Thursday. Chilcoat said the Seminole Nation would "not consent to being obligated to an agreement between the other four tribes and the state" until it has an opportunity to take part in "respectful and meaningful government-to-government discussions directly with the state” and conduct its due diligence. 

The three remaining tribes, in a joint statement released Monday, said leaders of each tribe "must be engaged with the state attorney general and members of Oklahoma’s congressional delegation if we are to have a meaningful voice in any legislative process" during the post-McGirt period. Tribal leaders also have "a responsibility to the citizens we represent to protect our sovereignty."

"Last week’s statement of principles began a discussion with state and federal stakeholders," the trio said as part of their prepared remarks, noting their respect for the views expressed by Hill and Chilcoat. "Upon further reflection, and after obtaining feedback from the people we represent, leaders of the Cherokee, Chickasaw and Choctaw nations agree that more discussion is warranted with stakeholders and the general public."

Hunter expressed disappointment with Hill and Chilcoat's positions, which he said on Friday came "as a stunning and regrettable reversal of commitments and assurances to me."

"This is neither in the best interest of the state of Oklahoma nor its tribal citizens," Hunter said. "Legislation is necessary to clarify the criminal and civil uncertainty created by the McGirt decision — I am deeply disappointed in Chief Hill for withdrawing from this process."

Stitt appeared to downplay the agreement statement of principles Hunter struck this past week with the Five Tribes. He said while he appreciated "the enthusiasm to rush into agreements," the next steps taken must "be thoughtful and informed,” and the commission authorized by his executive order "provides a central platform to help determine what those next steps might be.”

Pursuant to the executive order, state agencies, boards and commissions that may be impacted by the historic decision will be required to provide notice by Aug. 28. A more detailed description of any potential impact must be filed with the commission as a report by Sept. 30. 

Stitt named Larry Nichols, co-founder of Oklahoma City-based Devon Energy, as chair of the commission. Other members include former U.S. Sen. Don Nickles, former U.S. Rep. J.C. Watts, Oklahoma Sen. Julie Daniels, Oklahoma Rep. Mark Lepak, Alan Armstrong, Brent Bolen, Suzie Brewster, Harold Hamm and Joe Robson.

The governor left open the option to add a representative from Hunter's office later along with a member of the District Attorneys Council and representatives of the state's federally recognized tribes.

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