As Franklin County prison debate continues, Chickamauga leader says tribe ‘Can be pushed no further’ in land dealings

River Valley Democrat Gazette 10/19/2025

by Penny Weaver

CHARLESTON — Claims that Chickamauga Nation leaders assert related to Franklin County land where the state plans to build a new prison may hinge on two points in legal history that came nearly 200 years apart.

Chickamauga Western Region Medal Chief Justin Flanagan explained the tribe’s viewpoint as related to the Mill Creek Mountain site during a news conference Oct. 9 in Charleston.

“Let this serve as notice that the Chickamauga nation intends to defend its federally guaranteed treaty, constitution and civil rights,” he said.

The Chickamauga have renewed their resolve to lay claim to land where the state plans to build a new 3,000-bed prison with a goal of easing chronic overcrowding in the Arkansas Department of Corrections, he added.

State officials have rejected the tribe’s assertions of rights to the land and have said no Native American grave sites have been found on the 815 acres the state purchased Nov. 1, despite the Chickamauga’s concerns there are tribal graves there.

“The department has been mindful of that as preliminary assessments of the site have been completed. No evidence of a burial site has been found to date,” Corrections Department Communications Director Rand Champion said in March when the Chickamauga first voiced connections to the land.

A spokesman for Gov. Sarah Huckabee Sanders said at that time the tribe was bringing “an absurd claim.”

“This claim’s only purpose is to try and derail the Franklin County prison,” said Sam Dubke, communications director for the Governor’s Office.

TREATIES ARE ‘SUPREME LAW’

The tribe’s claims start with one legally binding type of agreement that historically has been common between Native American tribes and the government: the treaty.

“The United States Constitution is the bedrock of federal government,” Flanagan said. “To subvert treaties is to undermine the federal government.

“According to Article Six of the U.S. Constitution, treaties are the supreme law of the land,” he said. “… all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.”

The Chickamauga want the nation and state to honor treaties inked in the early 1800s.

CHICKAMAUGA ORIGINS

The Chickamauga are a Native American group that separated from the Cherokee around the time of the American Revolutionary War to the early 1800s, according to the National Archives’ Founders Online website, quoting from information in the Jefferson Papers from 1809.

In 1809, President Thomas Jefferson promised to trade the Cherokee — including the Chickamauga — land in Arkansas for land east of the Mississippi River.

In 1812, many Cherokee moved west from Little Rock and into the Arkansas River Valley, according to the Encyclopedia of Arkansas.

The Treaty of 1817, solidified with the Treaty of 1819, provided that the Cherokee give up about 5 million acres in Georgia and Tennessee for more than 3 million acres in Arkansas, according to the Arkansas Historic Preservation Program.

Many Cherokee moved to what is now generally considered Northwest Arkansas and includes the area around the Arkansas River and Franklin County, the encyclopedia states.

“The 1817 treaty gave us the White River, Black River, Buffalo River, Illinois River, Arkansas River and the lands surrounding them,” Flanagan said, also noting the tribe has signed more than 22 treaties as Chickamauga.

Approximately 40 families who are ancestors to today’s Chickamauga moved to the River Valley portion of Arkansas between about 1790 and 1822, according to National Antler Chief Jimmie Kersh of the Chickamauga Nation.

TRIBE SPLITS

The U.S. government signed the Treaty with the Western Cherokee of 1828 to send Native Americans in Arkansas farther west, but Flanagan said the Chickamauga can prove that land trade “was signed in duress” by people not authorized for the tribe.

Regardless, some of these families stayed in the River Valley, including Franklin County, Flanagan said.

Fast forward to 2015 and chiefs of various Chickamauga tribes gathered to form The Chickamauga Nation from tribes across the U.S. Southeast and Midwest, according to the Chickamauga website.

To this day, the Chickamauga are a federally recognized Indian tribe, but not federally serviced, according to their leaders, meaning they have no government-to-government relationship with the federal government.

According to the Bureau of Indian Affairs website, the U.S. government lists 574 recognized tribes as of this month and those are eligible for funding and services from the bureau.

The Chickamauga, however, are not on that list, but there is no official list of nonserviced tribes, the bureau states.

SECOND LEGAL LANDMARK

The second point in time that is key to the tribe’s assertions came in 2020. It’s the landmark U.S. Supreme Court case of McGirt v. Oklahoma.

The Chickamauga want existing treaties signed decades ago to be honored but, if necessary, Kersh has said, the tribe will invoke that case.

“The debacle in Franklin County has spurred us into action,” Flanagan said, referring to “our promised land, our sacred sites, the graves of our ancestors” in Franklin County at the proposed prison site.

In McGirt v. Oklahoma, the justices ruled that domain or land reserved by Congress for the Muskogee Nation in the 19th century had never been disestablished.

Although that case related to the Major Crimes Act, its rationale has been applied to other indigenous nations, meaning the land established for them also has not been disestablished, according to the courts.

The case held that land reserved via treaty for that tribe in 1833 remains its “permanent home,” according to a case summary from Cornell Law School.

“Once a federal reservation is established, only Congress can diminish or disestablish it. Doing so requires a clear expression of congressional intent,” the justices held. “Because Congress has not said otherwise, we hold the government to its word.”

Writing the opinion for the majority, Justice Neil Gorsuch stated, “Oklahoma is far from the only state that has overstepped its authority in Indian country.

“The magnitude of a legal wrong is no reason to perpetuate it. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”

‘PUSHED NO FURTHER’

Flanagan made clear at the tribe’s Oct. 9 news conference the Chickamauga will continue to pursue their claims to the Franklin County land where the state plans to construct a 3,000-bed prison, which would be the largest facility in the Department of Corrections.

Tribal leaders have attempted to talk to Sanders, the Board of Corrections and other state officials, but authorities have not engaged with the Chickamauga, he said.

“The Chickamauga Nation — through treaties, promises and traded lands in Arkansas — still retains jurisdictional rights — mineral, water, timber, grazing, and terrestrial rights — which no treaty has ever disestablished,” Flanagan said. “Colonial government will push and take until there is nothing left for Native Americans.

“We ourselves can be pushed no further.”