The $900 million Bradley Foundation, funding Oklahoma Council of Public Affairs, weaponizes philanthropy against teachers, labor unions and the climate. It operates arguably outside the tax code’s sanction of charitable expenditures and has a hit list of nonprofits interfering with its self-serving agenda, which has been described as a "shadow government."
With assets of $4 million, at last count, OCPA endorsed Scott Pruitt for EPA director, saying, “Pruitt is exactly the kind of leader we need to take on Washington, D.C. He has a track record of challenging the D.C.-knows-best mentality when it comes to protecting our environment and natural resources. The Constitution purposefully limits federal power and leaves control over local lands and businesses in the hands of state leaders. Gen. (sic) Pruitt has shown his dedication to restoring this balance between state and federal power."
Money-wasting scandals, questionable business expense claims and lobbyist emoluments were among the ethical breaches that ultimately led to Pruitt’s resignation in disgrace. OCPA was wrong about Pruitt’s character, and even more wrong about the Constitution's leaving control over local lands and businesses in the hands of state leaders. The U.S. Constitution never mentions "state leaders" and "local businesses." The "balance" between state and federal powers is succinct: State lawmaking power is limited by the supremacy clause whenever there is need for a pervasive regulatory field (i.e., environmental law), and it is almost residual as to other subjects. States occupy subject matter that, by its nature, federal law has not chosen to address.
This may sound like splitting hairs, until you consider the hot topic of tribal-state relationships. The U.S. Constitution relegates all commerce with tribes to federal jurisdiction. That means tribes don’t owe Oklahoma a penny, even though tribes do voluntarily give PILT (payment in lieu of tax) in compensation for ad valorem taxation, motor fuels, motor vehicle plates, gaming revenues, and fund roads, bridges, schools, scholarships, and nonprofits performing quasi-governmental functions such as volunteer fire departments. Tribes share water without compensation, and that’s a biggy.
Before statehood was considered, Indian territories already comprised half the land area in what’s today Oklahoma. Cherokees and other tribes have first and prior pre-existing working governments as we know them today, responsible for their full tribal jurisdictional service areas back as far as 1848. Oklahoma’s Organic Act and state Constitution acknowledged the primacy of tribal governments by exempting tribes and tribal citizens from state law. Statehood was conditioned upon this principle. Forget that, and you can forget whether tribes "owe anything" to "Oklahoma."
Lawmakers repeating the spin that Oklahoma deserves more from tribes over gaming compacts are engaging in undocumentable revisionism. Those lawmakers are barking up a tree with zero raccoons, and that dog won’t hunt. Tribes could reciprocate by establishing toll roads that apply to cars with non-Indian license plates on tribally-built roads; tribes could direct that school funds be applied only to the expenses of Cherokee children (i.e., like Johnson-O’Malley funds); tribes could fund rural fire departments with proceeds useable only for firefighting on restricted allotments; tribes could charge less at the pump for their own citizens.
Pretty soon, someone would mention the Indian Commerce Clause, and although the outcomes would not be as efficient, smooth or kind, courts would clarify that tribes don’t "owe" Oklahoma anything except neighborly kindness. Gov. Kevin Stitt and cronies hitting up tribes for more money need a historical understanding, so as to be humble and appreciative instead of demanding and arrogant. OCPA should not mislead lawmakers into grandiose state power.
Kathy Tibbits is a Cherokee citizen, attorney and artist living at Lake Tenkiller.