Can Oklahoma's new Attorney General reset the state’s relationship with its tribal nations?
Oklahoma's Attorney General Gentner Drummond has pledged to improve his office's relationship with tribal nations in Oklahoma. This comes after nearly three years of tension between tribes and Gov. Kevin Stitt's administration over the McGirt v. Oklahoma Supreme Court decision and gaming compacts.
During a primary debate last summer with the former attorney general John O'Connor, Drummond said there needs to be more respect for the state's tribal partners.
"The Native American members of Oklahoma are 400,000 strong," Drummond declared during the debate hosted by NonDoc and News 9. "They are Oklahomans, they are we. We simply need to treat our brothers and sisters with dignity and reach out across the aisle and shake their hand."
The focus of much of that debate centered on the 2020 landmark U.S. Supreme Court decision in McGirt v. Oklahoma, which determined that much of the eastern part of the state is Indian Country for purposes of the major crimes act. The decision and the effects came into sharp focus during last fall's election. Many tribal leaders and citizens said they wanted someone in office who respected their sovereignty and were willing to work together on criminal justice issues.
During his campaign and last summer's debate, he pledged that he would respect the decision. When asked about a push by four other members of congress to disestablish the reservations, he said he would not support that. But he was cautious to say that the McGirt decision only applies to criminal matters, not civil or regulatory ones.
Drummond has filed a challenge with The 10th Circuit Court of Appeals, saying Oklahoma should be able to regulate mining under the Surface Mining Control and Reclamation Act (SMCRA). Last fall, U.S. District Judge Stephen Friot denied Oklahoma's request for injunctive relief, saying that all surface mining regulation on the Cherokee, Choctaw and Muscogee reservation falls under the federal government's jurisdiction, not the state's. Friot cited McGirt.
"Oklahoma seeks to continue regulating surface coal mining and reclamation operations on land within the exterior boundaries of the Creek Reservation, Choctaw Reservation and Cherokee Reservation, as it has done for several decades. However, State regulation of these activities on Indian land is now precluded by SMCRA," wrote Friot in November 2022.
Drummond says he's met with tribal leaders during his campaign and wants to partner with tribal nations on issues ranging from criminal justice to mental health care.
Tribal leaders KOSU spoke with say they are looking forward to working with state leaders, including Drummond and a reset in relations with the Governor, who phoned tribal leaders asking them to attend his inauguration.
Other tribal leaders say they are cautious. "I'm going to wait and see," one told KOSU.
KOSU's Allison Herrera spoke with the newly sworn in Attorney General at his downtown Tulsa office on improving the relationship with tribal leaders and how their priorities align. The interview below has been edited for length and clarity.
Herrera: I spoke to several tribal leaders who were supportive of you running for the position. You said that you wanted to improve tribal relations. How is your office going to do that?
Drummond: I look at the 39 tribes in the state of Oklahoma as our secret weapon. I mean, they're profoundly economically beneficial to the state. And the members of those tribal nations represent, you know, at least greater than 10% of the population of Oklahoma. Any stakeholder in Oklahoma at a 10% level should get the attention of and full respect of the state government. And I believe that if you took the tribal nations out of Oklahoma, we would be even further down the economic line than we are. So I reckon, just economically, it's an impactful group of people.
On the issue of McGirt
Drummond: We have McGirt, which has created a cacophony of issues in the criminal prosecution world. My number one objective as attorney general is to reconcile those issues and bridge that gap. And I begin from the attitude of one mutual respect and sovereignty of the Native Americans. Two, let's do what we do best. The Native American tribes do health care and care and protection of their people excellently. I'd love to see the tribal my tribal partners help augment criminal justice in the mental health area and let the state do what it does best, and that is investigate, prosecute and incarcerate perpetrators.
Herrera: Would that result in a tribal state compact? Tribal prosecutors and attorney generals I have spoken with say tribal justice systems, created by the tribal nations are in a better position, not the state to prosecute perpetrators-especially when it falls under the new violence against women act provisions.
Drummond:I believe what we will see is a mechanism in place where Violence Against Women Act continues to be in full force and, in effect, anywhere a tribe can prosecute and incarcerate at their statutory cap. I think they should, if they wish. And that's, in effect, three years that can be stacked up to three times for nine years. So if there's a crime that's committed that the tribe can prosecute and incarcerate somebody for three years or less, and they want to do that, I want them to do that. If they say we don't have the infrastructure or that's not our strong suit, I would love for the state to be able to do that for them and in collaboration with the Native American tribe. And as it relates to the compact, I would prefer to just say agreement between sovereigns. And I would suggest that negotiating with the Cherokees and the Choctaws is like negotiating with France and Germany. They're different nations. So I don't anticipate a one size fits all. I anticipate independent agreements between sovereigns that brings closure to the ambiguities associated with McGirt.
Herrera: What have your conversations been like with tribal leaders and what they want from their state partners?
Drummond: I visited with approximately 20 tribal leaders and have spoken with many of the attorneys general and lead counsel for the respective tribes. I'm dealing with independent nations, with independent issues and concerns. Principally, I think the issue has been because of the narrative from the executive branch is one of respect. And so I start, and I feel strongly about respecting the Native American tribes. Our federal government and our Supreme Court has clearly established the sovereignty of these independent nations inside the state of Oklahoma.
Herrera: Tribes have made a lot of investments in their mental health care systems. You said that's something that they're doing well, that you would like the state to partner with them on. Can you be more specific about that?
Drummond: I'm going to be deferential to the tribes. They may not want to, but if we play to our strengths, the Native American tribes address mental health equal to or better than the state of Oklahoma.
I am of the opinion, and I'm not a psychologist, nor am I an expert in these issues, but it is my opinion that we have many men and women in our prison system that their guilt is mental health and because of the mental health deficiencies, they have been put in a position where they've been adjudicated as criminal. And if we had given these individuals mental health care, they would not be in our penal system. In my perfect world, we would have at the intake desk, if any, place that intakes criminals or those charged with crimes. You have a psychologist and a somebody in the prosecutorial branch, and they look at the intake and the interview and decide this one, we go left. That's mental health. This one, we go right. That's a real crime. I think we would solve a lot of our problems. We would stop being in the bottom ten of most categories.
On the issue of water in Osage County for the Osage Nation
Herrera: One of the concerns is over water rights in Osage County. I know that in 2017, the Oklahoma attorney general's office sent the Osage Nation a cease and desist letter in regards to a water well permit granted by the Osage Nation's Environmental and Natural Resources Department. You're a major landowner and a cattle rancher. Do you view that as a conflict of interest in your current position?
Drummond: I don't see any conflict of interest. I want the law, whatever the law might be. And I'm as we sit here in my 10th day in office, I'm not going to pretend to be an expert on water rights or the body of law around water rights. But if there are rights that should be availed to the Osage nation, then they should have those rights. If there are rights that should be available to the state of Oklahoma, then there should be rights there.