OKLAHOMA CITY – The U.S. Supreme Court’s landmark McGirt ruling, that much of eastern Oklahoma is tribal land, solely addressed criminal jurisprudence. Nevertheless, its repercussions have since extended to state government regulation and taxation issues, as well.
The State of Oklahoma has filed several petitions urging the nation’s high court to overturn or at least limit the extent of McGirt. The Supreme Court is scheduled to consider the state’s petitions on Friday, Jan. 7.
By a narrow 5-4 decision, on July 9, 2020, the court ruled in McGirt, a sexual abuse case, that Congress never disestablished the Muscogee (Creek) Reservation.
According to the U.S. Department of Justice, the Creek Nation’s boundaries encompass portions or all of 11 counties encompassing 5,000 square miles, three million acres, in eastern Oklahoma, including most of Tulsa.
Subsequently the Oklahoma Court of Criminal Appeals, after evidentiary hearings conducted by several district court trial judges, declared that the Cherokee, Choctaw, Chickasaw and Seminole reservations were not dissolved by Congress, either.
Congress established reservation boundaries for the Creek, Cherokee, Chickasaw, Choctaw, and Seminole nations in 1866. The boundaries for all five tribal nations consist of more than 19 million acres and nearly the entire eastern half of Oklahoma.
The state via Oklahoma Attorney General John O’Connor maintains that McGirt has caused “significant disruption” in the state, and that the only remedy is for the court to reverse its previous decision.
Although the holding in McGirt was limited to the Muscogee (Creek) Nation reservation and the federal Major Crimes Act, the dissenting Justices and the state alike predicted the implications would be far broader.
In its McGirt ruling the majority of the U.S. Supreme Court “ridiculed the ‘speculative’ concern of ‘Oklahoma and the dissent’ that ‘thousands of Native Americans like Mr. McGirt wait in the wings to challenge the jurisdictional basis of their state court convictions,” former Oklahoma Attorney General Mike Hunter wrote in a legal document filed August 3, 2020. “And yet that is exactly what happened…”
Over the last 18 months, literally thousands of felony and misdemeanor convictions of Native Americans in state courts operated in “Indian Country” have been vacated and either refiled in federal or tribal courts or dismissed for various reasons.
In his dissent in the 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.”
And during a Tulsa University Native American Law Student Association webinar a year ago, TU Assistant Law Professor Aila Hoss speculated that McGirt may have implications far beyond criminal law.
Hunter, Hoss and Roberts were prescient.