COMMENTARY – Cole’s conquest looms, amid concerns for the future of Indian Country
Published: May 20th, 2019
Oklahoma City – In the nation’s capital, U.S. Rep. Tom Cole, R-Oklahoma, is close to achieving his greatest triumph. If he pulls it off, it will be great for the tribe to which he belongs (the Chickasaw Nation), in particular, and beneficial to other large tribes, in general.
For decades, those interests have dominated politics and economics in Indian Country nationwide, and in their home state jurisdictions in these still United (sort of) States.
Through a pair of bills (one defeated, the other very much still alive), Cole and his allies say they are seeking a permanent “land fix” for issues of tribal sovereignty flowing from controversial court decisions. Cole asserts his measure will trigger equal treatment, but critics fear it is the equivalent of a Trojan Horse – appearing as a gift on the outside, but on the inside filled with trouble.
Cole’s Long March
Cole has been seeking this “land fix” since 2015 (https://www.politico.com/story/2015/10/new-indian-wars-washington-215208).
Under treaties and prevailing law, the U.S. Department of the Interior’s Bureau of Indian Affairs (BIA) guides the use of Indian land as the representative of the ultimate sovereign (the U.S. government).
In a sort of modern land run, after 1988 (under provisions of the Indian Gaming Regulatory Act) some tribes (curiously, the big tribes usually got the best deals) acquired lands ostensibly for ‘farming and grazing’ purposes as stated in law.
Yet, in scores of instances the lands were quickly converted to gaming purposes, even though underlying provisions anticipated economic diversification, with gaming limited to certain ‘core’ lands for the tribes.
The process sketched above (shifting trust lands from pastoral purposes to gaming) took place with BIA consent behind the scenes. Further, the lands were developed outside environmental review requirements under federal law, requirements that apply to others. No environmental impact studies, and no questions asked. And, the conversion benefited entities (such as the Chickasaw) that already had strong economic resources.
To be clear, the process unfolded to boost larger tribes, generally to the detriment of the smaller ones.
In an Oklahoma trust acquisition, a lack of consultation
Rep. Cole says “An attack on one trust trust acquisition is an attack on all trust acquisitions.” This is, among the tribes, a unifying sentiment, but it is in many cases not apt to the matter at hand. Oklahomans do not have to look far to find a case in point to the opposite of Cole’s expressed sentiment.
As reported previously by CapitolBeatOK (https://capitolbeatok.worldsecuresystems.com/reports/analysis-comanche-v-chickasaw-at-the-high-court), leaders of the Comanche Nation were furious at being ignored when the Bureau of Indian Affairs (BIA) ignored their opposition to location of a Chickasaw casino along the Red River in southwestern Oklahoma.
BIA allowed the powerful larger tribe in 2017 to break ground for a new casino along the Red River, at a site where the smaller Native American Nation had planned a new business operation. The process took place without the Comanche knowing what would happen from one day to the next.
Comanche leaders voted to appeal to the U.S. Supreme Court the circuit court’s ruling. This spring, the Denver panel upheld a district court decision from Oklahoma, siding with the Chickasaw and the Bureau of Indian Affairs.
The Tenth U.S. Circuit Court of Appeals acknowledged federal agencies are required to consult with “appropriate State and local agencies and Indian tribes” in such matters, but that in relevant procedures “use of the term ‘appropriate’ suggests an agency possesses discretion in determining which bodies to consult.”
In this case “discretion” meant the smaller tribe got screwed, while the bigger tribe got its way. Business as usual in Oklahoma’s Indian Country.
An angry Robert Tippeconnie, the Comanche’s secretary treasurer, told David Rogers of Politico.com (https://www.politico.com/story/2018/12/21/comanche-supreme-court-interior-department-casino-1073725 ), “I am just dismayed by how the court treated the lack of consultation. A federal agency should apply and be subject to the law.”
Comanche leaders voted to appeal the decision
In a “Petition for a Writ of Certiorari” to the nation’s High Court, lawyers for the Comanche note, “In Oklahoma, just six Tribes – 15% of the 39 federally recognized Tribes in the State – have managed to corner 85% of an Indian gaming market now generating more than four billion dollars in net revenue annually.”
Further analysis shows that just three tribes (Chickasaw, Cherokee and Choctaw) have two-thirds of all the tribal gaming businesses. And, one (the Chickasaw Nation) has one-third of all of the tribal gaming market under its control.
This foregoing is a sketch of economic reality which contrasts with the stated purposes and vision of national Indian policy. It also raises the red flag concerning Cole’s seemingly benign and inclusive comments.
In its litigation, the Comanche Nation argues broadly that perpetuation of historic advantages afforded the larger tribes as a result of federal policy have damaged smaller Indian nations.
The brief concludes that “The latest acquisition for the benefit of the Chickasaw Nation of Oklahoma — a Tribe already operating approximately two dozen post 1988 gaming operations to the tune of a billion dollars annually – is an existential threat to the economic lifeline of the Comanche Nation.”
Four justices will have to agree to take up the case. A trio of Justices – Neil Gorsuch, Clarence Thomas and Elena Kagan – could be pivotal actors in the upcoming deliberations about whether or not to consider the Comanche’s cause. (We could know more could as early as this Friday, May 24).
Cole and the D.C. Swamp
With mostly sadness but some anger, here’s news that’s not news to those who have paid attention: Somewhere along the way, Tom Cole became part of the problem in Washington.
When he first ran for the U.S. House in 2002, he used different words than did Donald Trump in last year’s presidential race to describe the “swamp” in D.C., but his message was one of reform.
Cole is a political player of power and sagacity. Fresh evidence: He has issued a timely endorsement of President Donald Trump’s newest immigration reform proposal.
Speaking of the president, he used language in tweets that was objectionable to many Americans, including Native Americans from tribes large and small. But anger about tweet language should not override attention to the long-term legal and economic interests of the smaller tribes, and the legitimate balancing interests of states, including our own state of Oklahoma.
Any change in the broken and corrupting BIA process should bring about a more level playing field for smaller tribes. That requires room for review of dubious decisions (as many as several dozen) from the past four decades.
‘What if they lied?’
In deliberations over an important case effecting Indian Country a few years ago, the late Justice Antonin Scalia scrutinized the trust lands process and related BIA procedures. He asked, concerning the process, “What if they lied?”
His concern touched on conflicted BIA officials under pressure to approve trust status, working in league with duplicitous tribal officials to corrupt a process intended to create a rational market for economic development. On matters such as these, the Supreme Court has on a few occasions fashioned unanimous (or nearly so) majorities.
In a separate case of importance, Scalia once remarked that some cases come to the High Court as a wolf in sheep’s clothing, but that a case of particular interest came “as a wolf.”
The wolf is at the door, and now is the time to bring fairness into the trust land process.
Yes, all the tribes deserve clarity in the trust process, whether or not they can afford high-powered lobbyists and lawyers in D.C. and in Oklahoma City. Yet, some misjudge the implications of making permanent a non-competitive economic state of affairs.
The DOI/BIA action ignoring the Comanche in 2017 (in giving the Chickasaw a ‘green light’ to break ground without notice) eroded further the U.S. government’s trust obligations to the Comanche. One could even say it actively breached that obligation. It should not be allowed to become a road map to the future.
Time is of the essence
These matters seem likely to move quickly in the days ahead, as the Interior Department’s appropriations process (deemed “essential”) moves forward in Congress.
A “clean fix” needs to anticipate that not every trust acquisition is sound or equal, unless you believe that some trust acquisitions are more equal than others.
Cole’s press for his greatest triumph is classic log-rolling. It blends together old, recent and anticipated land decisions which should be distinguishable. Whether one uses the Trojan horse analogy or the old adage about not mixing apples and oranges, methodical study of the issue yields that conclusion.
For several hours last week (in the midst of a busy day), I thought the U.S. House had passed Cole’s full package of legislation, locking in benefits for the powerful Chickasaw, at the expense of the smaller tribes and the state of Oklahoma. But after studying the details, I realized there is still time to slow down the process. Perhaps the U.S. Senate can play a laudable role in this.
It would be a terrible day for the smaller tribes and for the nation if Cole prevails in full. His proposal in present form would carve into national stone a re-creation of the high-powered trusts (monopolies) of old, for the most significant portion of the economy in Indian country.
Cole’s conclusion is in the long run bad law, bad precedent, bad economics, and bad all-around – for everyone but his own interests.
NOTE: McGuigan is founder of CapitolBeatOK, an online news service in Oklahoma City. He writes frequently on issues in Indian Country.