Julia Coates

The Selling of Cherokee Treaty Rights, Part Two

Newsletter/ Video Blog – Julia Coates – 6-8-2015

Summary: The Baker administration of the Cherokee Nation and its majority on the Tribal Council recently approved a compact with the state of Oklahoma whereby the Cherokee Nation will pay the state from $300,000 to $500,000 a year, plus administrative costs, so Cherokee citizens can hunt and fish anywhere in the state on a $2 license. This is a highly controversial compact and this update is the second of two that examine the different approaches taken by the previous administration and the present one on the issue of Cherokee hunting and fishing rights. Interested? Read on!

To sign a petition to place the approval of this compact to a vote of the people, call the offices of Chad Smith at 918-453-9200. Must be a Cherokee Nation citizen to sign.

A DIFFERENT APPROACH

Rather than compacting to pay the state of Oklahoma for rights we strongly believe we already have, the previous administration under Chad Smith envisioned a different kind of compact. In Smith’€™s vision, our governmental interests within our jurisdiction are acknowledged by the state and the Cherokee Nation is the licensing government, rather than the state. In Smith’€™s vision, the citizens of the Cherokee Nation would hunt and fish for free on their tribal ID card alone (not even a $2 payment to take one deer and one turkey) and all others would pay the Cherokee Nation for their licenses.

Realizing that the state would not simply give in to our assertions of treaty rights and governmental interests within our jurisdiction, the Cherokee Nation under the Smith administration had long been looking for a test case ‘€“ someone who was willing to hunt without a license and be arrested in order that they could carry the banner in a court case on behalf of the Cherokee Nation. The expectation was that a court case might not be necessary ‘€“ that just the threat that we hold these interests and have held them all along, and that the state has usurped them for over 100 years ‘€“ might be enough to bring the state to the table in negotiations for a compact instead of a legal battle. But if not, there was a sense that these rights needed to be tested and that in this instance, we might not have much to lose and a whole lot to gain if we pursued a court case.

But we couldn’€™t get the state fish and game wardens to arrest anyone. They would start to, but as soon as they realized the ‘€œoffender’€ was a Cherokee Nation citizen, they backed away. The state clearly did not want this headed into court. In a sense, that’€™s almost as good if just the threat that the Five Tribes have these governmental interests is enough to back off the state. The problem was, we couldn’€™t exactly proclaim to people that they should go ahead and break the law and they would probably be all right in doing so. Even more problematic, it still left the state as the licensing government and left in limbo the possibility that the Cherokee Nation might instead be the rightful entity that should be deriving revenue on hunting and fishing licenses.

And so we sat, frustrated for many years, but certainly not willing to pay the state for something we believed was rightfully ours. I doubt that thought ever crossed Smith’€™s mind, as it sets a very bad precedent for ever asserting in the future that governmental interests belong to the Cherokee Nation. But as it turned out, the issue landed in court anyway, not in the form of hunting and fishing, but in the form of another governmental interest ‘€“ water rights.

In the early 2000s, Oklahoma sued Tyson Foods for pollution of waterways within the Cherokee Nation’€™s jurisdiction. The poultry industry, largely mortgaged to Tyson in western Arkansas and eastern Oklahoma, had despoiled and made unsafe many of the streams and rivers in the area. As part of its novel defense, Tyson tried to have Oklahoma dismissed from the case, asserting that the state did not hold water rights in the area ‘€“ the Cherokee Nation did. And since the Cherokee Nation was not a party to the case, well, too bad Oklahoma.

Whoa!

The Cherokee Nation agreed with Tyson’€™s assessment, but we certainly didn’€™t want to be the defense that this filthy industry hid behind. Nevertheless, the Cherokee Nation could not let this pass without a response, without a defense of our water rights. So we were basically forced to try to be enjoined as a party to the case. The federal court denied our request because the deadline to do so had passed (as Tyson well knew), but in the attempt, a very interesting thing happened. In his decision on the request, the federal judge noted that on the surface, it appeared that the Cherokee Nation had a point ‘€“ that it might well be that the Nation DID hold water rights in this region!

Soon after, the possibility that the Five Tribes still hold the governmental interest of water rights popped up again, but this time in the territory of the Choctaws and Chickasaws. The state of Texas approached Oklahoma about the possibility of buying water from Sardis Lake in the southeastern part of the state ‘€“ a region within the historic treaty boundary and current jurisdictional area of the Choctaw and Chickasaw Nations. As the state began the bargaining process with Texas, the Choctaws and Chickasaws filed suit to stop the state’€™s efforts.

This occurred six or seven years ago and has not been decided. But the issue moved out of court and is presently in negotiation. Again, it appears that the state doesn’€™t want to test this premise in court either, and so just the threat that the tribes may hold these governmental interests may already be working in our favor. If water rights are established, then hunting and fishing rights, mineral rights, and other rights should follow the same premise.

This is really exciting stuff! There is a great deal that could be gained here by the tribes, but we have to exercise patience and do it right and well. The compact that was just negotiated by the Baker administration and approved by the Baker majority on the Tribal Council demonstrates haste, cutting corners, and ultimately may serve to undermine not only our bargaining position, but the bargaining position of the others of the Five Tribes as well. And as applied outside the boundary, we are essentially paying the state to allow us to encroach on the hunting and fishing rights of other tribes.

This compact is easy. But it is weak, it is small, it gives a lot and gets very little, for either the Nation or its citizens. It is evidence of political grandstanding in this election year, when it’€™s likely the state would have gone for this deal two years ago when the Attorney General maintains he opened negotiations with them. I can’€™t see what about this compact took two years. Why wouldn’€™t the state have gone for this right away? The state gets a great deal, it avoids any challenges to it on the basis of treaty rights and governmental interests, and the Cherokee citizens who hunt and fish get a cheap deer and/or turkey (singular). What’€™s so difficult about that? I suspect that the Baker administration was the one that held off for two years and waited until the most politically opportune moment.

But the Cherokee Nation itself gets robbed and the cause of treaty rights and governmental interests is set back. But there is no good moment to give away our rights ‘€“ to actually PAY someone to take our rights ‘€“ and certainly not now when the Choctaws and Chickasaws are standing strong on our behalf as well.

The Cherokee Nation is absolutely spineless under this administration. We need a change so desperately, before it is all gone.

Julia

To sign a petition to place the approval of this compact to a vote of the people, call the offices of Chad Smith at 918-453-9200. Must be a Cherokee Nation citizen to sign.

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