Professors: McGirt decision may have broad sweep

  • Aila Hoss

OKLAHOMA CITY – Canaan Resources’ appeal of the Corporation Commission’s favorable ruling on Calyx Energy’s applications was not entirely unforeseeable.

In his dissent in the landmark McGirt case, U.S. Supreme Court Chief
Justice John Roberts asserted that the decision “creates uncertainty for [the State of Oklahoma’s] continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”

During a recent University of Tulsa Native American Law Student Association webinar, TU Assistant Law Professor Aila Hoss said McGirt may have implications far beyond criminal law.

“It might potentially trigger a variety of federal civil statutes and rules,” she said, “including ones making the region eligible for assistance with homeland security, historical preservation, schools, highways, roads, primary care clinics, housing assistance, nutritional program, disability programs and more.”

Asked during the TU webinar whether the McGirt decision affects environmental regulations and natural resources, Elizabeth Kronk Warner, dean and a professor at the S.J. Quinney College of Law at the University of Utah, answered “Maybe.”

“The presumption is that tribes do not have jurisdiction over non-Indians” who are engaged in oil and/or gas development, “unless the activity has a direct effect on the health and safety of the tribe,” she said.


In a criminal case that featured the same tribal jurisdictional issues as McGirt and was decided by the 10th Circuit U.S. Court of Appeals three years ago, the Oklahoma Independent Petroleum Association submitted a “friend of the court” legal brief.

The OIPA said its 2,200- plus members felt compelled to express their views “due to the broad impact that this case may have not just on criminal matters in Oklahoma, but also on the existing regulatory authority the State of Oklahoma maintains.”

For example, the OIPA wrote, the Oklahoma Corporation Commission “has historically maintained authority over oil and gas production on state and private lands in Oklahoma. But tribal lands – including reservation land – are regulated by the Department of the Interior, raising questions of whether regulatory permitting was submitted to the appropriate agency.”

Taxation issues could be disrupted, too, the OIPA argued. “[O]il and gas production taxes, which have been paid to Oklahoma for years, may now be subject to taxation by both” the state and the tribe if a well is located within the boundaries of a tribal reservation.

Similarly, the Oklahoma Oil and Gas Association asserted that, “Not only would OKOGA’s members potentially be subject to tribal taxation on severance of oil and gas ... but they also might be subject to ‘dual’ state and tribal taxation.”

(The OIPA and the OKOGA subsequently merged to create The Petroleum Alliance.)

“The heart of the legal issue” in the Calyx/Canaan case “really relates to the 1947 Stigler Act and a broad set of federal cases,” said Stephen Greetham, senior counsel for the Chickasaw Nation.

The “midnight rider” that Oklahoma’s U.S. Senator Jim Inhofe slipped into the 2005 federal highway bill “doesn’t affect” the Calyx/Canaan matter, Greetham said. “That rider relates only to administration of federal environmental programs run by the U.S. Environmental Protection Agency,” he said. The Oklahoma Corporation Commission jurisdiction question “is wholly separate.”


H.R. 2606 by Oklahoma U.S. Rep. Tom Cole, R-Moore, amended the Stigler Act of 1947 and became law on December 31, 2018.

That measure revised the qualifications that must be met for inherited land to remain in restricted status. Land in restricted status is not subject to taxation and may not be sold or transferred without permission of the Department of the Interior.

Previously the restricted status of land allotted to the Five Civilized Tribes of Oklahoma was maintained only if the individual holding title had at least 50% Indian blood from one of the Five Tribes (the Choctaw, Chickasaw, Creek, Cherokee, and Seminole tribes). H.R. 2606 removed that requirement; thus, the restricted status is maintained for lineal descendants of an original enrollee whose name appears on the membership rolls of the Five Tribes. 

From 2011 to 2015, the Cherokee Nation lost 534 acres of restricted fee land because of the blood quantum requirement of the Stigler Act, according to tribal officials.

The Dawes Act of 1887 authorized the federal government to survey tribal lands and divide them into allotments for individual tribal citizens of Oklahoma’s Five Tribes. Title to these allotments was then set forth in the Stigler Act of 1947, requiring heirs and devisees to have at least one-half degree Native American blood to retain “restricted fee” status of allotted land. Restricted land is not subject to state taxation.

Federal law did not dictate a minimum Native American blood quantum requirement for any other tribe with regards to its territory.

In amending the original Stigler Act, heirs and devisees are given the opportunity to take title to allotted land and allow the parcel to maintain its “restricted fee” status. By removing the blood quantum requirement imposed on citizens of Oklahoma’s Five Tribes, the legislation also creates parity in federal law in the treatment of Native Americans.

Congressman Cole is a citizen of the Chickasaw Nation and co-chair of the Native American Caucus in Congress.