Cherokee Nation District 3 Tribal Councilor Wes Nofire remains steadfastly opposed to the administration's handling of the aftermath of McGirt v. Oklahoma, while Principal Chief Chuck Hoskin Jr. said he's doing what an elected leader ought to do after such an historic ruling.
The U.S. Supreme Court decision held that Congress never dissolved the Muscogee (Creek) Nation's reservation. Shortly afterward, it was announced that the Five Civilized Tribes (Creek, Cherokee, Choctaw, Chickasaw and Seminole Nations) and Oklahoma Attorney General Mike Hunter had come to an "agreement-in-principle to formalize the positions they share with the State of Oklahoma regarding future legislation following the Supreme Court ruling in McGirt v. Oklahoma."
Nofire contested the announcement during a Rules Committee meeting at the Cherokee Nation's W.W. Keeler Complex, and has continued to argue that those types of discussions should be brought before the council.
"I think it is an important thing to recognize how historical this is when it comes to possibly reorganizing Indian Country in a way that it has certain jurisdiction that it's never had before," said Nofire. "Those discussions have to be brought out in the open, and they don't need to be done behind closed doors, which has been what's going on."
During the past Rules Committee meeting in which the council debated the issue for nearly two hours, Hoskin and CN Attorney General Sara Hill admitted that the term "agreement-in-principle" was perhaps not best choice of words. Both pointed out there was no legally binding agreement in place. Hoskin said the whole point of announcing the "set of principles" was to begin discussion on what the next steps the tribes should take.
"What I've done is what an elected chief ought to do," said Hoskin. "The fact that we're talking about it right now - and it's been the subject of media scrutiny for a couple of weeks now - indicates it's an absolute open and transparent process."
Another factor in the council's not being briefed on the principles is likely the fact that the parties discussed them under a nondisclosure agreement. Hoskin said that any time separate governments that are in the middle of litigation have discussions, there has to be some assurance of confidentiality.
"More broadly than that, as the chief of the Cherokee Nation, I've got a constitutional obligation to engage governments on these kinds of subjects, and I do it all the time in terms of relating with the government of the United States, with the state of Oklahoma, and even local and county governments, because that's my constitutional duty," he said.
Nofire has doubts about the constitutionality of Hoskin's discussing agreements on behalf of the Cherokee Nation, but he also is concerned about the contents of the nondisclosure agreement.
"The chief's attorney general willingly said in last month's meeting that she signed a nondisclosure agreement with the state," said Nofire. "So what's in that nondisclosure agreement? We don't know; it's not been discussed before council, and it's not been brought before the citizens on what promises were being made."
After the set of principles was announced, the chief for the Muscogee (Creek) Nation and Seminole Nation both released statements that they were not in agreement with what was laid out. Hoskin said the tribal leaders continue to speak on a weekly basis, adding that each has his own perspective about what the next steps should be.
"I think, plainly, the Congress of the United States not only has authority in this area of the law, they will exercise it," said Hoskin. "My whole point all along has been as chief of the Cherokee Nation, I would be derelict in my duty if I closed my eyes, covered my ears, and hoped that Congress didn't overreact to McGirt and do great injury."
But Nofire isn't so sure Congress would try to disestablish reservations lands shortly after the Supreme Court ruled that it failed to do so more than 100 years ago. And he doesn't want the tribe to give up authority of its territory because of anticipation of retaliation.
"We're not living back 200 years ago when we should be living in that fear," he said. "We have a more mindful Congress - both Senate and House representatives - that realize the tribes are their own government, that they should stand alone, and that the Supreme Court does have a ruling."
Hoskin, on the other hand, said everyone should think about the history of the tribe, when Cherokees won Supreme Court cases in the 19th century, shortly before the Indian Removal Act. While he doesn't think that scenario will play out, he said the tribe does not have to imagine what Congress might do in response to the ruling.
"All we have to look at is what the oil and gas industry has circulated, which is legislative language that would extinguish the reservations," said Hoskin.
"I adamantly opposed that, but I also anticipated it, and it's my job to anticipate it. My job as the chief is to use the resources that the Nation has to be engaged and watchful, and to not be blindsided. And I won't be blindsided, because I've made it a point - since I've been chief and while I was secretary of state - to make engagement with the federal government a high priority."
Nevertheless, Nofire insists the tribe should not be relinquishing criminal jurisdiction to the state, and that doing so "all has to do with the context of sovereignty," which he thinks is being sacrificed for the administration's agenda.
"We wouldn't be sacrificing our sovereignty," he said. "We would be using our sovereignty to make sure that criminal justice and public safety can be served across all of our communities. There are ways to do that [and] preserve our sovereignty. My opinion is that it takes some congressional actions to outline the parameters, and I'm gratified that the statement of principles began in a very rigorous debate and conversation about what those parameters ought to be."