By Rob Trepp
Edited by Staff Editor
What are the limits on the sovereign powers that our Constitution can exercise through legislation?
With sovereignty, and with a constitution, what are the limits on the sovereign powers that constitution can exercise through legislation?
The clearest explanation is to imagine all the powers a government can have, and subtract those limited by the constitution itself or taken from us by treaty or other federal law.
Our constitution does not have a full “bill of rights”, but instead has assurances that guarantee each individual the rights they have under Oklahoma and federal law. Those state and federal rights are a limit on our tribal government we placed in our own governing document. If they change, our rights change with them. That is a limit we have imposed on ourselves, and should be changed by adopting our own Bill of Rights.
Since most treaties have dealt with the loss of territory, the only other treaty limitation remaining on tribal sovereignty is criminal jurisdiction over non-members.
The allotment agreements, however, have other limits: our schools were closed, our courts were closed, a Principal Chief could be removed and replaced if they refused to sign allotment deeds, etc.
And the 1906 Five Tribes Act had other limits: the National Council could not meet for more than 30 days a year, its legislation was subject to the approval of the Interior department, and tribal taxes were repealed.
The 1968 Indian Civil Rights Act can be considered a limitation, but our constitution’s guarantee of individual rights under the Oklahoma and U.S. constitutions is broader than that, and if we adopted a free-standing Bill of Rights it should be even broader and more inclusive.
And, in our lifetime, the U.S. Supreme Court has come up with another limit: tribal governments cannot exercise powers which are inconsistent with our domestic status as “domestic, dependent nations” under older court rulings.
But you probably know that our tribal government is already doing many things that seem to be prohibited: we have our community college, our council meets as often as it pleases and the bills it passes are not sent to the BIA for approval, our courts are open and functioning, and we collect taxes on licensed motor vehicles and on smoke shop tobacco sales.
For several years, tribal leaders tried hard to stay within federal limits. The council met monthly, with an earlier monthly planning session, to avoid meeting over 30 days a year. Bills were passed and presented to the Principal Chief as “ordinances”, to avoid waiting for federal approval or denial.
What happened to change that was a phrase in our 1979 Constitution that had caused a lot of misunderstanding at the time, and which was not understood properly for many years.
- Our Constitution organized our Nation under a specific federal law, the Oklahoma Indian Welfare Act of 1936.
- The Oklahoma Indian Welfare Act allowed Oklahoma tribes to organize, to request a federal charter, and to participate in certain credit and loan programs.
- Section 9 of the Oklahoma Indian Welfare Act says that all laws inconsistent with the Act are repealed.
- Muscogee Nation v. Andrus not only established this as precedent for all Oklahoma tribes, but the facts before that federal court were whether our tribal courts were valid and were able to receive and expend BIA funds for that purpose, and we became the first Oklahoma tribe to have a recognized tribal judicial branch.
So, the basic analysis comes right back to a treaty limitation on criminal jurisdiction over non-Indians, and another limit of what powers are “inconsistent with (our) domestic status”, which is a term the federal courts have not yet defined.
Let’s try to define that here.
Can we raise an army? Almost certainly not.
An army independent of federal law and command would be inconsistent with our being a domestic, dependent nation. Can we have a national guard? Almost certainly, if subject to the call of the United States for any duties outside our boundary. It could have barracks in the districts, equipment for disaster relief (fighting fires, removing fallen timber, protecting damaged neighborhoods from vandalism), serve as traffic control for highway and road construction, patrol lakes and rivers, and respond to emergencies as required.
Could we coin our own currency? Almost certainly.
We could establish the Toknawv as being equal to the U.S. Dollar, and coin it in denominations, repayable in dollars at the Complex, and legal tender at all tribal businesses. The demand by collectors for these coins, especially as “uncirculated” and “proof” sales, in the USA and other countries would be extraordinary. By putting the funds received for sale into savings and earning interest, a new source of tribal revenue would be available. Commemorative coins, extra charges for uncirculated coins, and other upgrades would pay for the cost. And precious and semi-precious metals would not need to be used: there are many high-nickel alloy plates available and available commercially that resist corrosion better than copper and resist tarnish better than silver.
Can we have a broader tax base? Almost certainly.
Based on the 1905 federal court decisions in Buster v. Wright, almost certainly. That ruling said that a non-member, who owned a town lot in Wagoner that the Nation had sold under the allotment agreement, still had to pay their annual tribal tax of one per-cent of gross receipts. That decision was made by the U.S. District Court and Court of Appeals (in Denver) that were most familiar with our legal status at that time, and has been cited with approval by the U.S. Supreme Court in other tribal tax litigation.
How broad could our tax base be? That’s unclear.
Outside lawyers will try to argue that our taxes can only be collected from tribal and restricted lands. I disagree, because the section-line rights-of-way (whether open or not) were set up as a part of the allotment process, and therefore subject to tribal jurisdiction.
Traffic uses those rights of way, and a gasoline tax to pay for public safety, roads, and bridges would seem to be appropriate, since all residents and visitors use or cross those rights-of-way.
Commerce uses those rights-of-way, and a sales tax for government operations, some of which benefit not only our citizens but our neighbors (such as tribal government operations, public safety, and public health), would seem appropriate.
Oil and gas pipelines and public utilities cross those rights-of-way (as well as tribal and restricted lands), and a tax for the purpose of regulating the safety of pipelines and a franchise agreement and tax on public and private utilities would both seem an appropriate source of tribal revenue.
Companies also need those rights-of-ways for their employees to get to work. An employment tax, discounted according to the proportion of tribal members employed there, would be appropriate as well.
Will there be push-back and legal conflict if we undertake these and other taxes? Of course.
So we have to take every step to make sure our taxes are not a burden on the economy around us, or the federal courts will find an excuse to strike them down.
So, perhaps a gasoline tax should be one cent per gallon the first two years, two cents per gallon the next three years, then 3 cents a gallon after that.
A general sales tax could be 1/2 cent per dollar the first two years, then one cent per dollar after that.
We have an advantage in that we have a small resident population of citizens when compared to the vast numbers of other people who live within our nation. A very small tax on the economy around us has almost a tenfold return effect upon our people.
“A very small tax on the economy around us has almost a tenfold return effect upon our people.” ~ Robert Trepp
And, to lessen the burden on our citizens, we could offer quarterly tax rebates, based on a credit system of a credit for residency, another for being over a certain age, another for passing grades in school or training, and so on, and hold the rebates to minors in trust until they reach a certain age (unless paid out for tuition, books and dormitory costs) with a gradual pay-out over the next few years.
We have to start thinking this way, and learning by trial-and-error, because our current tribal economy based on gaming could disappear in a flash. If the state of Oklahoma ever allows casino gaming under state law, we no longer have an absolute monopoly within our boundary. If we wait until that happens, it will be too late.
And there may be many more opportunities if we concentrate on building tribal law.
About the Author
Robert Trepp (Escaswvlke, Loca’pokv) is a life-long resident of the Muscogee Nation, diploma from Nathan Hale in Tulsa, BA and MA in Political Science from University of Arkansas (Fayetteville), consultant to 1975 Election Board (first election of Principal Chief and Second Chief since 1903), manpower planner, research specialist, research manager, Director of Government Policy and Research, clerk for Muscogee National Council, member of 1979 Constitution Commission, member of first Gaming Operations Authority board, Chief of Staff and Acting Director of Community Services for Principal Chief Bill S. Fife.
Successful tribal projects included Citizenship Code, Title I of Judicial Code, research that led to Muscogee Nation v. Hodel (first re-recognition of any Five Tribes courts), seven years lobbying to open Commodity Distribution to Oklahoma tribes, Gaming Code (first in Oklahoma), and multi-million dollar Housing Rehabilitation grant. Trepp testified to the Senate Select Committee on Indian Affairs on complex issues regarding the protection of native sites in the southeast.
Trepp is Vice President – Sales for Prescor LLC in Sapulpa, and CEO of the National Indian Monument and Institute, which just completed its 30th Tulsa Indian Arts Festival.