By Patrick B. McGuigan
This is a review and analysis of a story about power – Federal power, Tribal power, State power and the power of economic interests, including lawyers, to impact all of the above, and more.
In western Oklahoma, tension and drama seem perpetually to surround the governance of the Cheyenne & Arapaho Tribes. The events of 2013 are maintaining that baneful tradition.
Local operatives of the Bureau of Indian Affairs (BIA) have gummed up the operations of the common government of the Two Tribes, preventing the administration of Governor Janice Prairie-Chief Boswell from operating independently.
According to the federal government – as in the Interior Department in Washington, D.C., ostensibly the managing unit over BIA — Janice Prairie-Chief Boswell was legitimately elected as the governor of the C&A Tribes in January 2010. Her victory ousted a scandal-tainted incumbent, Darrell Flyingman.
At the time the Tribes’ Supreme Court, led by OCU law professor Dennis Arrow, had been called into question by three BIA P.L. 93-638 federal funding reports in 2007, 2008, and again later in 2010. (These reports are generated in compliance with the Nixon-era self-determination act, which allows tribes to contract with the federal government to manage disbursement of federal funds.) These federal reports questioned whether or not the tribal court had been legitimately appointed.
Immediately following the report in 2010, then-new Gov. Boswell appointed a new tribal High Court, led by Chief Judge Dan Webber, a respected attorney. (Mr. Webber practices in Blaine County, has represented several Tribal members over the years and is the father of the former U.S. Attorney for the Western District of Oklahoma.)
The opposing faction in the Tribes’ legislature tried to stop the Webber appointment. It became nonetheless effective because there was no formal objection within the thirty day prescribed period in the Tribes’ 2006 Constitution. Ironically, the so-called default appointment was the same way the previous governor, Flyingman, had named a lower court judge in 2008.
The legitimacy of Mr. Webber’s court was then questioned by the competing court, which immediately thereafter recognized an impeachment proceeding against Gov. Boswell by a minority faction of the Tribes legislature.
That faction was loyal to the Tribes’ former Gov. Flyingman and then-new Lt. Gov. Leslie Harjo. Harjo had turned against her boss Gov. Boswell, by chairing a meeting for Boswell’s impeachment.
This resulted in the BIA local and regional offices — who had long tilted toward the Flyingman Administration of the past – to effectively question the elected leadership of the Tribes for purposes of crucial federally funded P.L. 93-638 programs.
Eventually, Interior Department appeals ensued. The Agency, on an interim basis, recognized Boswell as governor for the execution of tribal P.L. 93-638 programs. This action, however, didn’t end the dispute.
Since appeals began, lower levels of the BIA bureaucracy have continually sowed confusion by sending some of the Tribes’ funds from federally lands and mineral rights — held in trust for the benefit of the C&A peoples — to the Harjo faction. This action apparently took place to create a legal situation of confusion, where higher administrators for BIA might have to, as a practical matter, accept Harjo and the anti-Boswell impeachment effort as de facto legitimate, thus avoiding or confusing impending Cobell-style litigation (i.e. for having sent tribal funds to the wrong person or persons).
Betty Tippiconnic, Agency Superintendent, took no blame for the matter because she was in Washington D.C. The local office’s number two person, Scott McCorkle, initially stated that Ms. Tippiconnic had told him to send the funds to the wrong person (Harjo) – but reversed course, revising the story and calling it a clerical error.
Sure enough, Cobell-styled litigation then ensued. Boswell’s Attorney General, Charlie Morris, filed suit in federal court for the return of funds locked up in a bank in Ada, Oklahoma. Millions in the Tribes’ trust funds remain effectively frozen because of the matter (At that point, it was about $2 million, but the amount has grown.)
Meanwhile the Harjo faction has continued to fight the issue, with the help of the Tribes’ bank in Clinton Oklahoma, First National Bank. The bank was able to get another $6.4 million, consisting of largely of P.L. 93-638 program funds, locked up in a Custer County court while the dispute over C&A leadership is on appeal.
This confusion and overreach continues, even though the BIA has long since recognized Boswell as — at least on an interim basis until appeals are over — proper signatory for the funds.
The bank’s law firm, Crowe & Dunlevy, and counsel Scott Meacham, asked the state court to make a decision on who the funds should be sent to — and then asked the court to appropriate funds for legal fees for the bank’s lawyers.
As for that bank, it is led by Barry Sewell, who is now facing serious charges involving a drunk driving arrrest and was recently charged with bribery in connection thereto.
In that Custer County case regarding the funds, the bank has asked the court to let it release the funds to the Tribes’ treasury at Concho. Good.
However, denial of funds to the Harjo faction resulted in an appeal to the state Supreme Court. That case now sits awaiting decision.
The C&A Tribes employ 1,600 people – 1,300 of whom are tribal members – but presently cannot access most of the funds to pay bills.
Payroll is effected, and that means the regional and state economy is hurting. Payroll represents 75 percent of the C&A Tribes’ total yearly budget. The valid government of the C&As has had to reduce employees to 32 hours a week and lay off others while millions in federal trust and program funds are essentially frozen in the court.
Is all this delay and maneuvering part of an effort to influence the next tribal election, returning the discredited Flyingman faction to power?
Typical BIA leadership appeals do not get resolved prior to pending elections. The problem with this one is it has spawned two tribal Supreme Courts and two Election Commissions which figure to hold their own elections unless the BIA rules before the next scheduled election this fall.
The Harjo faction “attorney general,” Jeremy Oliver of Pauls Valley, faces felony allegations of sexual mishavior. Harjo herself allegedly assaulted a Boswell adviser. As mentioned above, the head of the bank that has tied up the Tribes’ funds faces drunk driving and bribery allegations.
Meanwhile the local BIA offices in Concho and Anadarko – packed by supporters of with former Governor Flyingman and disputed Lt. Gov. Harjo — say they don’t recognize that anyone is in charge of the tribes’ government, even though Washington D.C. says Boswell is the recognized governor, pending appeal, on an interim basis.
All this drama and tension unfolds against the backdrop of a tribal government that has grown from 60 federally funded jobs just 20 years ago to become west central Oklahoma’s leading employer. With those 1,600 jobs, and a payroll that is 75% of its overall budget, the C&As are now “players” in the regional and state economy.
For Oklahoma and the region it makes sense, at the least, to let that impacat continue and even finds ways to enhance it.
As for the BIA’s role in gumming up tribal administration, and the role of bankers in blocking legitimate access to tribal resources these are the equivalent of conpiracy in practical effect, if not in legal effect.
How’s that for paternalism? This is a matter that should raise the concern of everyone interested in state-tribal relations, the growing economic clout of the Oklahoma’s Tribes in general and the C&As in particular, and just plain good government.
There is no magic wand to cure federal BIA dysfunction, which is historic and ongoing. But a few intermediate steps could help – starting with the state Courts restoring access to bank funds for the recognized leadership of the Cheyenne & Arapaho peoples.
NOTE: McGuigan is associate publisher of The City Sentinel , where this analysis first appeared online. He is also the editor of CapitolBeatOK. McGuigan writes frequently on water policy, state-tribal relations and the Cheyenne & Arapaho Tribes of Oklahoma. This spring, his coverage of the Tribes won first place in the Diversity Reporting category from the Society of Professional Journalists, Oklahoma pro chapter.
Federal meddling and intra-tribal fights impede western Oklahoma economy
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