Oklahoma voters recently celebrated the novelty of becoming the first state to ban the non-existent threat of Sharia law. Under the “Save Our State” constitutional amendment, Oklahoma courts are forbidden from considering or using international and Sharia law in their rulings. Beyond the obvious First Amendment problems with the law, in their zealous “war” against the phantom Sharia menace, Oklahomans might find unexpected collateral damage to the Ten Commandments, businesses, and now, Native Americans.
Oklahoma has the second largest population of Native Americans in the U.S and law experts like Oklahoma University law professor Taiawagi Helton point out that language in the law banning courts from looking at “legal precepts of other nations or cultures” could pose a problem if applied to tribal legal cases, as the tribes are considered sovereign nations. In fact, the Oklahoma Indian Affairs Commission released an official memo on October 20 explaining how the “lack of specific tribal law language” could “damage the sovereignty of all Oklahoma tribes” and “starkly reminds [the Commission] that some Oklahoma lawmakers forgot that our nation and state were built on the principles, blood, and back of other nations and cultures, namely, ou[r] tribes”:
[The law]completely ignores the possibility that an Oklahoma state court may be called upon to apply the law of any of the 39 Indian tribes located with the borders of Oklahoma to resolve a dispute.[...]
The language of this proposed amendment starkly reminds us that some Oklahoma lawmakers forgot that our nation and state were built on the principles, blood, and backs of other nations and cultures, namely, out [sic] tribes. It also ignores that Oklahoma tribes have become valuable economic partners with the State that it cannot afford to ignore or exclude.
If SQ 755 is approved, the lack of specific tribal law language could easily be interpreted by a state judge to leave no room to refer to a tribe’s law to determine the existence of a valid waiver of a tribe’s sovereign immunity, for example. Thus, SQ 755 has the potential to provide state court judges with yet another opportunity to further erode tribal sovereignty. A state court judge could rely on the amendment’s absence of recognition of any tribal law to avoid or disavow its application.Tribes and tribal members should be aware of this glaring omission for Oklahoma courts to look to and apply our tribal laws when appropriate, and vote on this question accordingly.
Ohio University international law professor Peter Krug said Oklahoma businesses that deal with companies overseas could also suffer as “many transactions between companies rely on international treaties to uphold contracts” and “lawyers could take advantage of the lack of clarity in the language” to challenge cases.” “I think we will see extended legal arguments from both sides, and, quite honestly, any court decision that addresses [the amendment] will likely be appealed,” he said.
Fortunately, as Helton notes, it is unlikely that courts will uphold the law. A federal judge’s temporary order to block the law on Tuesday certainly lends credence to that notion.