Tulsa mayoral candidates differ on tribal co-governance

Co-governance is a means for bypassing democracy. On the pretext of righting historical wrongs, the self-styled leaders of indigenous groups, representing a tiny percentage of the overall population, are given not only a seat at the table, but also a deciding vote or veto over decisions made by the elected representatives of the entire population.

New Zealand is furthest along the path to co-governance, although the voters there pushed back last year. (Here's an explainer from a pro-co-governance perspective.) For example, the previous government, led by socialist Jacinda Ardern of the Labour Party, started a process to take governance of water supply away from local governments and giving it to regional bodies with equal representation of Maori tribal leaders and the general population, a plan called Three Waters. Self-identified Maori constitute about 20% of the national population. There once was a requirement to prove Maori ancestry and a blood quantum over 50% in order to vote in elections for set-aside Maori parliamentary and council seats, but people can now self-identify, which is likely swelling the numbers.

Co-governance is a great setup for the Left. If you can't get the support of the general public for your "progressive" plans, you can more easily manipulate tribal leaders who were voted in by tiny electorates. Under co-governance those tribal leaders would be able to stop a conservative city or state government initiative or push a left-wing proposal that a majority of the total electorate would have rejected. If a billionaire with an agenda can turn the heads of the elected officials of a city of 400,000 people, it would be no problem for him to enlist the compliance of leaders elected by 5,193 voters with some cash for pet projects and promises of cushy non-profit gigs.

Citizens of Australia and New Zealand wisely rejected pushes for co-governance last October with Aussies overwhelmingly defeating the "Indigenous Voice to Parliament" proposal and Kiwis electing a new center-right coalition opposed to the co-governance that had been pushed by the defeated socialist government. The new New Zealand government has repealed the Three Waters proposal. David Seymour, leader of ACT, a junior partner in the newly-elected coalition government, writing before the election, explained eloquently the divisiveness and injustice inherent in co-governance:

"The current [Labour] government is presenting New Zealanders with a false choice. It says that if we want to right the wrongs of the past, cherish Māori language and culture, and give all New Zealanders equal opportunity, then we must throw out universal human rights in favour of co-government.

"Parties on the left, led by Labour, promote decision-making made by two parties jointly co-governing when it comes to regulatory decisions and government service delivery. ACT would overturn and replace the obsession with co-government, replacing it with a more liberal outlook that treats all humans with equal dignity....

"We are told that 'one-person-one-vote' is old-fashioned, and we should welcome a new, 'enlightened' type of political system. This new system is a 'tiriti-centric Aotearoa,' where we are divided into tangata whenua, people of the land, and tangata tiriti, people of the treaty. Each person will not have an inherent set of political rights because they are citizens of New Zealand. Instead, they will have rights based on their whakapapa or ancestry.

"Continuing to embed the extraordinary belief will be highly divisive. The danger is that if the Government continually tells people to regard each other as members of a group rather than individuals with inherent dignity, there is a danger people will internalise that lesson. Once that happens, it is very difficult to go back."

The wrongly-decided McGirt ruling laid a legal foundation on which co-governance could be justified in Oklahoma. Yes, co-governance would be built atop the pain and trauma of a four-year old girl who was sexually molested by her grandmother's husband.

By the way, child molester Jimcy McGirt, cornerstone of co-governance, is now a free man. Despite claims at the time (e.g. T. W. Shannon) that McGirt would receive a harsher penalty in Federal court, his 500-year Oklahoma district court sentence was replaced with a 30-year Federal sentence and credit for time served. (Details on how that came about on the jump page.)

Although Justice Neil Gorsuch's majority opinion, backed by the Court's left wing, stated that the scope of the ruling was limited to prosecution of felonies under the Major Crimes Act, the City of Tulsa's amicus brief and Chief Justice John Roberts's minority opinion spelled out the dangerous implications of the McGirt ruling, which overturned 100 years of settled law and precedent:

Across this vast area, the State's ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out. On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the State's continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.

None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. The Court reaches the opposite conclusion only by disregarding the "well settled" approach required by our precedents. Nebraska v. Parker, 577 U. S. 481, ___ (2016) (slip op., at 5).

With Justice Amy Coney Barrett replacing Ruth Bader Ginsburg, a more recent ruling began to contain the toxic legal overflow of McGirt. The 2022 Castro-Huerta ruling, decided 5-4 with Gorsuch now in the minority, put crimes committed by non-Indians in eastern Oklahoma back under the jurisdiction of Oklahoma's district courts.

There is reason to hope that further rulings would continue to limit the bounds of McGirt and perhaps some day to reverse it altogether. Hooper v. Tulsa, a case questioning the City of Tulsa's ability to enforce its traffic laws, was working its way through the federal courts. The city sought a stay on the federal district judge's ruling, but a 3-judge panel of the 10th Circuit Court and SCOTUS both denied a stay. The district judge dismissed the case in December. (I have reached out to experts to find out where this case stands and whether the city will further pursue the case.)

Those mitigating rulings will not happen if our elected officials choose to drop the cases. Oklahoma is already hampered by a state attorney general who seems more beholden to tribal governments than to the people of Oklahoma. It's in the interest of tribal officials (and the forces who hope to harness them for their own ends) to get city and state elected officials to halt legal challenges to tribal jurisdiction and agree to co-governance, creating a fait accompli before the issue reaches SCOTUS.

You either have one territorial sovereign, elected by all the people and governing all the people, or you have something like South Africa's apartheid system, with different laws and courts for different people based on ancestry. It's to the benefit of all Tulsans, tribal citizens as well as the rest of us, to have a single system of laws and justice consistently applied to everyone, whether you have a great-great-great-great grandfather on the Dawes roll or not. We need our next mayor and council to pursue that goal aggressively through the federal courts.

The issue was raised at the recent Tulsa mayoral debate at Cain's Ballroom. Only one of the three major candidates, Republican Brent VanNorman, will defend the principle engraved on the pediment of the Supreme Court building: EQUAL JUSTICE UNDER LAW.

VanNorman would continue to pursue criminal jurisdiction over tribal members in the Federal courts. He had an apt illustration: "If someone's here from Kansas and is speeding, we expect our police to pull them over and give them a ticket." The law should be applied the same no matter what license plate you have. While VanNorman spoke about communication and coordination with tribal governments, which aren't prepared to handle the burden of law enforcement that sovereignty implies, VanNorman affirms that there must be one set of laws and one system of justice for everyone. Equal justice under law.

"Democrat" State Rep. Monroe Nichols is committed to co-governance with tribal officials. That means that officials elected by tiny numbers of voters, most of whom live outside the City of Tulsa, will decide how our city is run, not the elected representatives of the citizens of Tulsa.

Nichols's own webpage on the topic acknowledges that there are only 30,000 Native Americans living in Tulsa; undoubtedly fewer than that number are citizens of the tribes that claim to have reservations covering part of the city. Those 30,000 people are full citizens of Tulsa, Oklahoma, and the USA, and are already represented in city, state, and federal elections. It's not democratic to give them more say than the 370,000 Tulsans who are not tribal citizens. (Thus the sneer-quotes around "Democrat" above; the "Democrat" Party has shown on this issue and in the replacement of Joe Biden with Kamala Harris that they don't respect democracy.)

Nichols stated at the debate that Tulsa is the largest city in the US in an Indian reservation. That's because for 113 years, it was NOT governed as if it were in an Indian reservation. (It wasn't in an Indian reservation, and it still isn't, except for the mineral rights of the Osage County portion.)

You can't build a city in a reservation. The Navajo reservation, the largest in the nation, is nearly the size of Oklahoma's pre-statehood Indian Territory (27,413 sq. mi. vs. 31,069.88 -- source here), but it has no cities. Land is held in common, controlled by the tribal government and the Bureau of Indian Affairs, so it can't be developed. 40% of the population lives below the poverty line.

In Oklahoma, allotment gave tribal citizens land of their own to farm, develop, or sell, providing capital and clear title where cities and towns, businesses and industries could be established and grow. The Curtis Act and other laws of the period affirmed the USA's agreements with the the Five Tribes that their citizens, "when their tribal governments cease, shall become possessed of all the rights and privileges of citizens of the United States." Without the Curtis Act, allotment, and statehood, there would be no Tulsa, no McAlester, no Ardmore, no Ada. Tribal capitals like Tahlequah and Okmulgee would be villages, not the cities they became after they were platted and the lots transferred to tribal members.

In her answer (in most of her answers), Karen Keith talked about relationships. Keith said she has talked to "our Nations' leaders" about putting a "pan-tribal court" in a new Tulsa County Courthouse. She wants to come to "consensus" with tribal authorities in hopes of getting rid of the legal issues. In other words, she would capitulate to a dual system of justice but would hope to help citizens "navigate" the confusing system that Gorsuch, Ginsburg, Sotomayor, Breyer, and Kagan devised in McGirt.

I said before the midterm primaries that 2022 was the McGirt election, but every election will be a McGirt election until Congress explicitly reaffirms the disestablishment of reservations (already accomplished before statehood, but denied by Gorsuch et alii) or until the Supreme Court narrows or eliminates the scope of the ruling.

The McGirt case was wrongly decided, with the narrow 5-4 majority ignoring the legal developments that occurred in the decades leading to statehood. Subsequent rulings, after the replacement of Ruth Bader Ginsburg with Amy Coney Barrett, have limited the scope of McGirt, and we can hope that the U. S. Supreme Court will ultimately limit McGirt's implications to the Major Crimes Act cited in that ruling, and perhaps overturn it altogether. To reach that democratic goal, our mayor needs to be a strong advocate for democracy and equal justice, not a a puppet of petty tribal fiefdoms. That's one more reason I will be voting for Brent VanNorman for mayor on August 27, 2024.

Click "Continue reading" for video of the debate section on co-governance and more on the legal process that led to McGirt's release from prison last month.