Jan. 23—On Friday, the U.S. Supreme Court agreed to hear a vital piece of Oklahoma's challenge to the landmark McGirt decision but declined to hear arguments over whether or not the high court should overrule its 2020 decision.
It's the latest chapter in the state's attempt to overturn the decision that found Congress never disestablished the Muscogee (Creek) Nation reservation and was later applied to the Chickasaw, Choctaw, Cherokee and Seminole tribes in the state, leading to much of eastern Oklahoma being under Tribal jurisdiction.
With McGirt upheld — at least for now — the question posed by some, including Congressman Tom Cole, R-Moore, is when is it time to stop litigating and start cooperating?
"We ought to step back and say, Tribes are winning most of these legal cases, they're not losing them," Cole said. "(So) shouldn't we have a dialogue here? Because again, at the end of the day, you have to remember that when you're negotiating with a tribe in Oklahoma, they're citizens of the state, too."
While he did not respond to a specific request for comment following the Court's decision, Cole did speak at length with The Transcript in early January about the Oklahoma v. Castro-Huerta case and the McGirt decision.
The Supreme Court on Friday granted cert to hear Oklahoma v. Castro-Huerta, which calls into question whether the state can prosecute non-native offenders who commit crimes against native residents on a reservation.
Oklahoma Gov. Kevin Stitt didn't speak directly to the Supreme Court's decision to not hear arguments on whether to overrule McGirt but said in a prepared statement Friday that he was encouraged it has decided to consider Oklahoma v. Castro-Huerta.
The governor's office did not respond on the record to The Transcript's questions.
When it comes to McGirt, Cole, a citizen of the Chickasaw Nation, said tribes are clearly "recognized as sovereign entities in the constitution" and believes that with more than 200 years of case law on the matter of tribal sovereignty, it is perfectly appropriate to take questions to court, as Stitt is doing.
But at some point, the parties have to say enough and realize they have to work together, he said.
"I don't have any problem with litigating issues," Cole said. "... But long term, it's the same thing people tell you in business. If you got a business dispute, the courts will solve it, but you're usually better off if you sit down. You save a lot of money, you avoid bad blood, but in the end, if you want to go (to court), you have every right to go."
In Cole's view, being at war with the Tribes "makes as much sense politically as being at war with the oil and gas industry" in Oklahoma, especially considering how much revenue the Tribes bring into the state.
"These are our business partners," he said. "I would just treat them the same way that I would treat leaders in the oil and gas industry and leaders in the agriculture industry and our great universities. I mean, they've been important players, reasonable players and rational players."
This is why, at the end of the day, Cole said he's been advocating for "dialogue, cooperation and legislation" when it comes to McGirt.
As first reported by online news outlet NonDoc, on Jan. 5, Stitt sent a letter to the Cherokee and Choctaw nations requesting a "30 day negotiation period" on the hunting and fishing license compacts that expired on Dec. 31, 2021. As of Saturday, neither of the nations had responded.
Over the past year, Cole has filed legislation that would allow the Cherokee and Chickasaw nations to negotiate compacts with the state of Oklahoma regarding criminal prosecutions.
But Cole said Congress won't even consider his legislation until Oklahoma gets on the same page.
"Oklahomans are looking for a solution in Washington — the solution has to come from Oklahoma to Washington," he said. "The second piece is that people need to recognize is the McGirt decision, while its immediate impact is in Oklahoma, for all of Indian Country, it is maybe the most consequential decision in 50 or 100 years."
With the state currently being against his piece of legislation and against any outcome other than McGirt being overturned, a consensus is not likely to happen anytime soon, Cole said. But he encourages the state that if they have ideas he can work with to let him hear it, but until then there's really nothing he can do.
The state is against his piece of legislation because it acknowledges that McGirt granted the Tribes sovereignty from the state and reservations for all purposes not just criminal jurisdiction, the state has said.
"I still think, long-term, (legislating) is the direction we oughta move in, but I'm one player," Cole said. "And so until we get people focused — and I think that begins with the dialogue inside the state with the decision-makers for the State and the Tribes around the table together, and then the federal delegation, cooperating by saying, 'okay, this is what you guys in Oklahoma said you need now our job is to go get it. But our job is not to choose between you or you.' "
This isn't the first time disputes like this have occurred. Back in 2016 when the water settlement between Oklahoma City and Choctaw and Chickasaw tribes was memorialized by Congress, they wouldn't even consider the legislation until there was an agreement in Oklahoma.
"This is how we got the water settlement," Cole said. "The water settlement we have between the state, Oklahoma City and the two tribes in the southeast didn't actually happen until they negotiated an agreement. Then they needed a federal law to memorialize it. We got it passed within the last couple months of the Obama administration with their help. But the Obama administration was not going to intervene, and neither was Congress [until there was a deal]."
Cole said he wishes the state and the tribes would get back to that level of dialogue. He believes once the state exhausts all of its litigation options, it will.
The tribes have also taken the state to court before — most recently for the water dispute — but ultimately at the behest of the federal court, the two parties negotiated and ended up working out an agreement rather than a litigation victory, Cole said.
"Tribes took the state to court over the water settlement but at the end of the day, they decided rather than winning a court victory, having an agreement was a better deal," he said. "... So we just do better when we negotiate than when we litigate. But both of them are legitimate."
But Cole said conflicts like this happen, and he truly believes it will all work out; it's just a matter of how long. He said what the state really needs right now is for both sides to be willing to listen to one another and have genuine conversations.
"There's been friction between tribes, state and local governments as long as Oklahoma's been here. That's just part of the territory," Cole said. "You just got to recognize the legitimacy of the person on the other side of the table and come to an agreement, because we have lots of common ground."
Reese Gorman covers politics and COVID-19 for The Transcript; reach him at firstname.lastname@example.org or @reeseg_3.