The Muscogee National Council indefinitely postponed consideration of a resolution that would have sided with the United Keetoowah Band of Cherokee Indians in a dispute with the Cherokee Nation over land rights within the affirmed Cherokee Reservation. Sponsored by Muscogee Reps. Dode Barnett and Patrick Freeman Jr., the resolution would have called “upon the (U.S.) Congress to refrain from interfering” with a solicitor’s opinion that found the UKB to be a successor in interest to the Cherokee Nation Reservation.
That legal opinion was released on the final Friday of President Joe Biden’s administration, and it has been “suspended” since Feb. 28, according to the Cherokee Phoenix. Barnett and Freeman offered their resolution to the Muscogee National Council after the UKB publicized federal legislative language proposed by the Cherokee Nation that would prevent the UKB from taking land into trust within the Cherokee Reservation without the Cherokee Nation’s consent.
The legislative language, allegedly supported by Cherokee Nation citizen and U.S. Sen. Markwayne Mullin (R-OK), would restore a 1992 law that had required the same. In 1999, the law was changed from “consent” to “consultation,” a change that potentially allows the UKB to operate a casino within the now-affirmed Cherokee Reservation without the Cherokee Nation’s approval.
“We should remember that the very language the Cherokee Nation is seeking to correct was language put in a rider and changed. We’d like to change it back,” Cherokee Nation Principal Chief Chuck Hoskin Jr. told the Muscogee National Council on Aug. 23. (The Cherokee Nation supported a similar effort to restore the language in a 2021 proposal from U.S. Rep. Tom Cole.)
Stroble case to SCOTUS?
Also on Aug. 23, the Muscogee Nation Council approved a resolution to appeal the Oklahoma Supreme Court’s decision in Stroble v. Oklahoma Tax Commission to the U.S. Supreme Court.
The Oklahoma high court ruled July 1 that Muscogee Nation citizen Alicia Stroble’s income derived from tribe within the nation’s reservation remains subject to state income tax, a decision contrary to prior SCOTUS Indian Country taxation rulings.
When UKB leaders announced they had discovered the proposal through a Freedom of Information Act request, UKB Chief Jeff Wacoche called the proposal “tribal termination,” a term referring to when the federal government removes its recognition and protections for a tribal government.
“This is not a policy disagreement. This is a deliberate, targeted act of tribal termination by [Cherokee Nation of Oklahoma] Sen. Mullin,” Wacoche said in a press release. “This is genocide by redline. And it is being carried out not with muskets or manifest destiny, but with a secret pen in a Senate office.”
The Cherokee Nation’s proposed legislative language would not terminate the UKB, but it would effectively prevent the tribe from taking land into trust within the Cherokee Reservation, substantially hampering the UKB’s ability to engage in independent economic development where its tribal members live. If approved, the language would prohibit the UKB or any tribe from putting land into trust for gaming purposes within the Cherokee Reservation. The UKB would still be able to place land into trust for non-gaming purposes, but only with the Cherokee Nation’s consent.
The Cherokee Nation and the UKB have long fought over the status of the Cherokee Reservation and which government has a right to claim the reservation. The Cherokee Nation maintains it is the same nation as the 19th century Cherokee Nation and is the only successor in interest to the Cherokee Nation’s treaties with the United States, and therefore the Cherokee Reservation. The UKB argues the 19th century Cherokee Nation ceased to exist sometime in the 20th century and that it is an equal successor in interest to the Cherokee Reservation.
‘Irreparable harm’: Cherokee Nation Chief Hoskin urged MCN Council to reject resolution
The proposed Muscogee National Council resolution, TR 25-079, caused quite a stir between Oklahoma’s two federally recognized Cherokee tribes, resulting in the chiefs and tribal councils of both the Cherokee Nation and the UKB attending the Aug. 23 Muscogee National Council meeting.
A second version of the resolution, which does not appear to be available online, was introduced as a substitute at the council meeting. Barnett told the council the substitute removed direct references to the Cherokee Nation from its language.
“What spurred me to introduce anything at all, to be honest, was thinking about the bigger picture and how these actions — if they come to fruition — could potentially impact Muscogee Creek Nation and other nations in the future,” Barnett said. “The language in the substitute bill really opposes the avenue that is being taken and, basically, I don’t believe that any of us — any sovereign nation — should be OK with that language being put in any appropriations bill or even through a committee process without robust consultation with the nation that it is going to effect.”
After Barnett’s introduction, Hoskin was invited to speak by another council member, and he said he opposed the resolution.
“In the few moments I’ve had to review the substitute, my position is unchanged,” Hoskin said. “What is happening within the Cherokee Nation Reservation is an assault on our history, on our treaties, on our reservation, on our very identity. Let’s make no mistake, that is what is at issue here. If this is approved, the Muscogee National Council is entering into that debate — that conflict — in a way that will do irreparable damage to something that I hold dear as principal chief (…) and that is the relationship and the friendship between the Muscogee Nation and the Cherokee Nation. This does injury to it, and this National Council has to decide whether inflicting that injury is in the interest of the Muscogee Nation.”
Hoskin called on the Muscogee National Council to take no stance in the dispute between the Cherokee Nation and the UKB, arguing that doing otherwise would cause “irreparable” harm to the relationship between the two nations.
“The question is not whether we are going to leave agreeing, the question is whether the Muscogee Council is going to take a side,” Hoskin said. “The question is whether the Muscogee Nation Council is going to do irreparable harm to the relationship between the Muscogee Nation and Cherokee Nation. There is another path. That path does not require anyone on this council to surrender their opinions about the stance of the Cherokee Nation. It doesn’t require any member of this council to agree with the law and the facts that I believe are unassailable. But you may not agree with me. No one is asking you to surrender that, we’re simply asking that the Muscogee National Council not make a decision in this dispute.”
While the Muscogee Nation may have avoided “irreparable harm” to its relationship with the Cherokee Nation by postponing the resolution, Hoskin said the council’s consideration of it had already done “injury” to the nations’ relations.
“I watched the committee meeting — that I was not invited to — but the United Keetoowah Band’s lawyer was there, prepped and ready to present a resolution that he wrote. I watched it, and it was breathtaking — the misstatements of history and the law and even the very congressional legislation we’re talking about. And it was an efficient meeting, and the vote was reached in a short time,” Hoskin said. “That alone, I think, does injury. This issue is worth more than a few moments of a resolution that comes before this body to be approved. But if it is approved, councilors, I must stress, it will do irreparable harm to the relationship between the Cherokee Nation and the Muscogee Nation.”
Hoskin also indirectly referenced the Muscogee Nation’s own history of conflict over jurisdiction on its reservation with federally recognized Muscogee Tribal Towns.
“There had been times, council members, when this nation, the Muscogee Nation, has had legal and political concerns about land in trust and whether this body, this nation, has jurisdiction over this reservation. It has been under assault. Cherokee Nation has not been moved at any time to enter this nation and decide whether another nation, another governing authority, ought to have control,” Hoskin said. “I submit we wouldn’t do it. I submit we would stand aside. I submit we would place our relationship, which dates back generations, ahead of being handed a resolution by an entity trying to undermine your sovereignty and pass it in record time. I submit we wouldn’t do that.”
Hoskin said the Cherokee and Muscogee nations have “too much to do together.”
“There’s too much that we have in common for this to be the moment that the Muscogee Council decides to condemn the Cherokee Nation,” he said. “Because make no mistake — no amount of struck lines will change that proposition. Because the proposition in front of you is whether this is the moment to condemn the Cherokee Nation for, quite frankly, doing what this body, this nation, would do in a heartbeat if you were to find yourself in the same position. I don’t have to guess whether that is true, I know enough about your history to know it’s true.”
Muscogee Rep. Robert Hufft was more direct in his comparison during the discussion, directly referencing the Muscogee Nation’s efforts to block the Kialegee Tribal Town’s attempts to open a casino within the Muscogee Reservation. In 2022, the U.S. District Court for D.C. dismissed a lawsuit brought by the Kialegee seeking a declaration the tribal town possessed concurrent jurisdiction within the Muscogee Reservation. The D.C. Circuit Court affirmed that decision in May.
“First of all, this should of never been brought to the Muscogee Creek National Council. You know, I respect the Keetoowahs and the Cherokees, and this is something they need to deal with. And now we’re being put on the front to make a decision. And no matter how we make that decision, it will still favor one or the other,” Hufft said. “A few years back, something quiet similar to this (happened). If you recall the Kialegee (Tribal Town) was trying to put a casino in our Broken Arrow, and we as the Creek Nation stopped them because we said, ‘Hey, it’s our reservation, and we have jurisdiction over where you put a casino in our jurisdiction.’ So we stopped them from doing that because we protected our sovereignty over that. So, it’s something similar, and we did the same thing.”
‘Zero economic development’: Wacoche argues proposed language hurts UKB
UKB Chief Jeff Wacoche gave shorter remarks in support of the resolution, describing the Cherokee Nation’s federal legislative efforts as an attack on the tribe’s sovereignty.
“Today, you have an opportunity to stand against the termination of tribal rights. That is the simple truth. The proposed (federal) legislative language is intended to steal — in secret and without consultation with the UKB — our rights as a sovereign. At its core, it is a blatant attack on our sovereignty. It is also intended to ensure that we have zero — zero — economic development to fund critical services for our members. And that is not the end of it. The congressional language is intended to also deprive the UKB from having its day in court,” Wacoche said. “You all appreciate better than anyone how important it is for the Supreme Court to address tribal issues of national significance.”
Muscogee Rep. Sandra Golden spoke first during the discussion of the resolution, focusing her comments on criticizing state and federal politicians for trying to divide tribes.
“Historically, white European people have attacked Indians. We’re still being attacked by every administration. This is the worst administration that we have faced in years. We have a dictator in D.C. We have one at our State Capitol. They’re coming after us,” Golden said. “They’re going to be dangling — they still are — giving us bones and telling us to fight over it. And somebody is doing that right now. That congressman in Washington D.C. is trying to get us to fight each other. We’ve got to stop doing that. When we fight each other, we lose our sovereignty because they can come in and take it. We’re busy doing that to each other. So we have to say, ‘We’re not going to do this.’ We have to unite, and we’re going to fight for our sovereignty — for all sovereign nations.”
After Golden’s remarks, Rep. Anna Marshall moved to table the resolution indefinitely, a motion seconded by Rep. Nelson Harjo Sr. In her final remarks, Barnett hinted the resolution had made its point and cautioned that larger tribes had to be careful to not “bully” other tribes.
“The irony of the remarks made here today about this happening last minute without consultation of one body is not lost on me because that is what is happening on the federal level. Doesn’t feel good whenever it is happening to you, and that’s kind of the bigger point in this,” Barnett said. “When I was elected to council, in 2012, the first [National Congress of American Indians] meeting I went to, I was excited. I was a young legislator, and I was just ready to work for our people. I was taken aback by the perception that other entities — some nations, but a lot of people — see the Five Tribes as bullies. Because sometimes we go to Washington, and we want things done that affect us, but then they have an adverse effect on other nations, and we don’t consider that. And I was taken aback by that. I had no idea that was how people felt about us.”
She argued that “every tribal nation” should be concerned by Congress taking action to limit tribal sovereignty.
“I don’t pretend to know the internal politics of these two tribes,” Barnett said. “The way it affects the Muscogee Nation is this could be us. We are signaling to the world we are OK with sovereign nations being attacked in this avenue.”
Ultimately, council members voted 9-4 to table the resolution. Joining Barnett and Freeman in opposition to the tabling motion were Rep. Mark Randolph and Rep. Robyn Whitecloud.
