Unpacking McGirt V. Oklahoma: What It means today and the potential impacts no one is talking about

September 09, 2021 by Sabah Khalaf

Supreme Court decisions often have ripple effects across other areas of the law. Few cases, however, promise to impact as many areas of the law as McGirt v. Oklahoma.

The case has upended the Oklahoma criminal justice system in a way few thought were possible and reversed a legal framework that has persisted since statehood. Harvard Law Professor Nikolas Bowie called the decision, “huge for sovereignty, the country, and American Indians. In some sense, [it] may be the biggest decision, looking back on this [Supreme Court] term, in a decade.”

The case revolves around Jimcy McGirt, a pedophile who was convicted in 1997 of three serious sexual offenses by an Oklahoma State court and sentenced to life in prison without the possibility of parole. McGirt appealed his conviction, arguing that Oklahoma did not have jurisdiction to try him because he was a member of the Muscogee Creek Nation and his crimes were committed on tribal land. After hearing the case, the Supreme Court handed down a decision in July 2020 that ruled in McGirt’s favor, stating that Congress never disestablished the Indian reservations that make up the eastern part of Oklahoma and the state had no jurisdiction to try McGirt.

In his majority opinion, Justice Neil Gorsuch illustrates the crux of the issue: “On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever...the government further promised that ‘[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.’ Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”

The Aftermath

As a result of the decision, American Indians who commit crimes on a tribal reservation (which includes over half of Oklahoma) are not subject to state jurisdiction. American Indians who commit serious crimes (including murder, manslaughter, robbery, and sexual abuse) that are defined in the Major Crimes Act of 1885 may be tried by federal courts. After the Supreme Court decision, McGirt himself was retried and convicted in federal court under this framework. Any American Indian who fits the criteria and is either in state prison or facing state charges may be able to seek the dismissal of their case. Dozens of cases have already been dismissed, with hundreds more expected. Crimes committed by American Indians on tribal land that don’t fall under the Major Crimes Act must be tried in tribal courts.

Where else could this case have big impacts?

Post-Conviction Relief

If the State of Oklahoma does not have jurisdiction to prosecute certain crimes, it stands to reason that past convictions could be vacated. Major crimes would then have to be reprosecuted by the federal government, and lesser crimes would have to be reprosecuted by the tribe on whose reservation the crime was committed. So far, the Oklahoma Court of Criminal Appeals has held that McGirt does not apply retroactively.

Taxation

Similarly, the McGirt ruling has not yet been applied to any civil matters, but there are several civil court cases in process that will have to address the question of whether the Supreme Court’s upholding of the tribal right of self-governance applies to any number of civil matters not covered by pre-existing compacts. For example, several tribal citizens who live and work on tribal land have filed tax protests, seeking to prevent the state from collecting income tax that it may not have the legal right to.

In addition, challenges have been filed involving property and sales taxes collected by the state on tribal land. Warehouse Market v. State ex rel. Oklahoma Tax Commission (2021) is one such example. Warehouse Market currently sublets a building that is on federally restricted Indian land. Both the state and the Muscogee (Creek) tax authorities have sought to collect sales tax on purchases made at Warehouse Market. The case is currently making its way back through the court system after being kicked on procedural grounds, but the courts will eventually have to determine who has jurisdiction.

Regulation and Infrastructure

Much in the same way that the tribes are seeking to assert their sovereign right to levy taxes, many seem poised to assert a greater role in regulatory matters within their reservations. Land use regulations, permits, and any number of other regulatory roles could theoretically shift to the tribes if they successfully challenge the state’s authority to impose its own rules. The tribes could also hold a greater degree of responsibility for funding and maintaining civic infrastructure within their respective reservations.

Both the state and tribes seem to accept that a flurry of legal battles will ensue to settle these and other jurisdictional issues. The state has allocated $10 million for legal fees stemming from litigation to settle issues stemming from the McGirt decision. Governor of Oklahoma Kevin Stitt, who already has a poor record working with the tribes, seems to be spoiling for a fight. Referring to the McGirt ruling in an interview, Stitt said, “I think there’s an 80% chance that it’s at least narrowed to criminal [jurisdiction] – so it very clearly will not bleed into taxation or regulation – but I think there’s a 50/50 chance that they overturn it, because the court got this horribly wrong.”

Meanwhile, the tribes have not been intimidated by Stitt’s saber rattling, and are prepared to defend their sovereignty with equal zeal. Cherokee Nation Principal Chief Chuck Hoskin Jr. estimates that the ruling will cost the Cherokee Nation over $35 million a year in additional law enforcement costs, a price that the Nation appears eager to pay in exchange for the right to govern itself.

Only time will tell how these issues will be resolved. It may take decades before the impact of the McGirt decision is fully known and jurisdiction between the state and tribes is redefined.

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