The U.S. Supreme Court’s 2020 ruling in McGirt v. Oklahoma, which held that the pre-statehood reservation of the Muscogee (Creek) Nation was never formally disestablished for purposes of federal criminal law, created vast uncertainty, particularly as other “reservations” were discovered.
The question facing Oklahomans: Would McGirt provide tribal governments with civil authority over the state and non-Indians?
Thankfully, the Oklahoma Supreme Court has now answered, “No.” Otherwise, McGirt would have created economic chaos and worse by cementing Oklahoma as place where there would be two sets of rules based on race, geography, demographic or political classification.
In Stroble v. Oklahoma Tax Commission, the Oklahoma Supreme Court was asked to expand McGirt to include civil issues by declaring that Indians living on McGirt reservations do not have to pay state income tax.
The court ruled that American Indians must still pay state taxes and addressed McGirt’s application to civil law.
The majority opinion declared, “To date, the United States Supreme Court has not extended its ruling in McGirt beyond the Major Crimes Act. To date, the United States Supreme Court has not extended its ruling in McGirt to the State’s civil or taxing jurisdiction. And it is not this Court’s place to do so.”
Several justices wrote concurring opinions that reinforced the court’s conclusion that Oklahoma tribes do not have civil authority over non-Indians.
Had the court ruled otherwise, Oklahoma Supreme Court Justice Dana Kuehn noted the court would be forced to review “every civil law matter from here to eternity to discern whether reservation status alone requires Oklahoma courts to apply a remedy dictated by a federal criminal case.”
In his concurring opinion, Justice James Winchester wrote that extending McGirt to civil and regulatory matters would “ultimately affect mortgages, auto and appliance loans, and landlord-tenant relationships. Many everyday contractual and economic activities would fall under the jurisdiction of tribal courts.”
Following the McGirt ruling, Gov. Kevin Stitt ordered all state agencies to provide analyses on the ruling’s potential impact. The Oklahoma Department of Commerce warned McGirt could create a drag on business investment and job creation due to regulatory uncertainty. The Oklahoma Board of Nursing similarly warned McGirt could reduce the number of medical providers if the decision caused “the expansion of tribal government authority in a wide range of areas, including regulation and taxation.”
In a 2020 column, attorneys Adam Dinnell and Andrew Hicks warned oil-and-gas industry officials that the McGirt ruling “raises the specter of added uncertainty, dueling requirements, and the prospect of increased litigation.”
The U.S. Supreme Court majority in McGirt stressed that the ruling applied only to criminal-law questions. The decision still has had many negative consequences. The Oklahoma Supreme Court’s new ruling reduces the harm and puts Oklahoman on the path to greater stability and long-term growth.
About the author: Jonathan Small serves as president of the Oklahoma Council of Public Affairs.