Senator Hamilton discusses tribal compacts

By now you have likely heard that the legislature voted to override the Governor’s vetos of the one-year extensions of the tribal tobacco and vehicle tag compacts. Despite the numbers on the vote tally, not all of us think this is a good idea. There is one man in particular who has been a source of wise counsel and I am privileged to call him friend. He is Representative Jim Olsen from Sequoyah County, and he’s in agreement with what I’m about to say. My oath of office is to support and defend the constitution of the United States of America and the State of Oklahoma. After much prayer, research, and consideration of Oklahoma law and history of the dynamic aspects of tribal and State relations, I believe that the legislature was in error to over ride Governor Stitt’s vetos regarding the so-called “one year extension” of the tribal compacts on tobacco and vehicle tags. Here is why I voted NO on these originally and why I voted NOT to override the Governor’s veto.

First, according to Oklahoma statute Title 74, section 1221, it is the sole duty of the Governor to negotiate these compacts with each Tribal leader. Language within the compacts themselves also states that the agreements are to be negotiated by the Governor and tribal leaders. Therefore, by extending these compacts even a year, the legislature has stepped out of their lawful authority and undermined the authority of the Governor to negotiate on behalf of all Oklahomans.

On the surface, compacts covering tobacco sales and car tags sound relatively benign, but as is often the case in politics, one is required to regard the potential unintended (or maybe intended) consequences of a measure. At issue is the affirmation or agreement with the McGirt decision and the (re)definition of reservation(s), and what exactly happens WHEN we agree or affirm those. I’ll remind the reader that the U.S. Supreme Court rendered the McGirt decision in 2020, one hundred and thirteen years AFTER Oklahoma was admitted to the Union. For the last century plus, we’ve lived together as Oklahomans under ONE LAW, bought, sold, and traded millions of times, and NO ONE implied that some people are immune from prosecution or taxation by the State in which they reside simply because of their DNA. In legal terms that concept is called the doctrine of laches, in real estate it’s called open and notorious. What it means is that if we’ve agreed on a procedure, boundary, etc., for a period of time (15 years in real estate) then that’s how it is.

The second closely related issue is the idea of by saying one thing and not another, what are you implying? In other words what are you saying without actually saying it? We’ve seen this played out in dozens of other laws. We accomplish our stated aim, which is good. For now. And while many of our laws are arguably well-intentioned, they fail by NOT clearly outlawing their objects. They have implicitly created loopholes. Initially, we didn’t see these loopholes or they appeared impassable, but have subsequently proved to be gaping. The same thing is happening here.

You’ve heard several officials claim that “all we’re doing is giving the tribes and the Governor one more year to sort this out.” They may think that’s what they’re doing, and may sincerely wish it to be so, but that’s not how it is. The Governor has offered to extend these compacts with one clarification – that the extension only applies to tribal trust and restricted lands. If the tribes did not have a desire to expand operations or a desire to re-establish the reservation(s), then why not sign the Governor’s proposal? The issue here is the phrase, “Indian Country.” This is the wording on the compacts when they were signed in 2013. It meant tribal trust and restricted lands. In 2020, “Indian Country” was redefined (by the McGirt decision) to mean the eastern 42% of our state. Can anyone see a potential problem?

To put it even more bluntly, those who give the impression that “all we’re doing is sending this thing into overtime,” are being disingenuous and naive. The rules that were in place at kick-off have the same words, but those words mean different things now that we’re in overtime. Also, now that we’re in overtime we’ve got 149 additional referees in the form of the Oklahoma Legislature, most of whom seem to be more interested in the outcome of the game than the conduct of it.

Kicking the can down the road on matters related to the McGirt decision is wrecking Oklahoma. Unregistered tribal tags result in unpaid tolls. One specific license plate had over 300 unpaid tolls since May 15! One vehicle. Thankfully the Supreme Court got it right and put the brakes on the Hooper decision. For now. For those who don’t know, the Hooper case is one of many court decisions that create a double standard of justice and taxation for tribal and non-tribal citizens. Under these rulings, a non-tribal citizen pays roughly $280 for speeding 16 over the posted limit, while tribal citizen pays around $70, provided the tribe decides to prosecute. In the Stroble case the tribes make the argument that tribal citizens don’t have to pay state income tax if they live on a reservation, which is now all of Eastern Oklahoma. What if we all decide to stop paying taxes? Either we all do it or none of us do.

Here are a few questions to ponder: Why are the tribes not willing to accept the Governor’s offer to extend the compacts specifying that it only applies to tribal trust and restricted lands and not “Indian Country?”

Why are several of the larger tribes signing on to amicus briefs in support of Hooper, Stroble, Castro-Huerta, and McGirt which basically assert that tribal citizens living anywhere in reservation boundaries per McGirt are not subject to State or municipal traffic laws, prosecution or taxation?

Do both tribal and nontribal people benefit from the current services of the government of Oklahoma (public schools, law enforcement and public safety, roads, health services, etc.)?

If a non-tribal citizen owns land within the confines of a reservation, what does that mean now for the property rights of their heirs?

Furthermore, organized crime, lured here by recreational, I mean “medical” marijuana, is using this legal and statutory vortex to traffic in human beings, drugs, and other contraband in vehicles tagged with unregistered tribal plates. These examples prove the error and the folly of not only the McGirt decision, but also every other measure that acts in that spirit. They prove that we are creating chaos out of order, and division out of unity. They create or validate a double standard of taxation. They create or affirm a double standard of justice where one human being can go to prison and another pay a fine, based simply on their DNA. Sadly, we’ve seen this in our past and we’re taking steps toward seeing it again, but in the opposite direction. It’ll still be just as wrong and it will still make a mockery of “Liberty and Justice for all.”