Three Years after Landmark Ruling, Congress Silent on Tribal Jurisdiction in Oklahoma

This story by Jacob Fischler appeared on Colorado Newsline on August 30, 2023

After a 2020 U.S. Supreme Court ruling defined much of Eastern Oklahoma as a Native American reservation, limiting state jurisdiction over tribal citizens, Congress has taken little interest in addressing the issues the tribes and state officials say the court decision has raised.

The 5-4 decision in McGirt v. Oklahoma held that lands the federal government granted to the Muscogee Nation before statehood had never been disestablished as reservations.

That ruling, and subsequent decisions in lower courts, meant that Oklahoma had no authority over lands the state’s Five Tribes controlled covering upwards of 40% of the state’s geographical area, at least when it came to enforcement of major crimes.

The ruling exposed a growing divide between Republican Governor Kevin Stitt, a citizen of Cherokee Nation first elected in 2018, and the state’s tribes. And despite a clear judgment from Justice Neil Gorsuch, who authored the McGirt decision, that Congress is the only body that can change tribal boundaries, federal lawmakers have shown little interest in doing so.

Stitt has cast the decision as an existential danger to half the state.

“Right now, we’re in a fight for the very fabric of our state,” he said at his Aug. 24 State of the State address in Tulsa.

Tribal leaders, meanwhile, see the ruling more as an enlargement of scope — causing a ballooning in tribal court cases, for example — than a fundamental shift in their existing sovereignty.

Landmark ruling

The McGirt decision was considered a landmark for tribal sovereignty. The 5-4 court, led by Gorsuch, a former Colorado resident and federal judge, ruled that the Muscogee Nation still held jurisdiction over the land guaranteed to it as a condition of the nation’s westward move in the early 1800s.

Because only tribes themselves and the federal government have authority on tribal lands, the state conviction in McGirt was thrown out. Jimcy McGirt, a Seminole citizen convicted of sexually assaulting his wife’s 4-year-old granddaughter while on Muscogee territory, was quickly re-convicted in federal court.

A slew of treaties promised sovereign land to the Muscogee people. Without an explicit reversal from Congress, those 19th- century treaties are still valid, Gorsuch said, training his avowed “textualism” toward tribal sovereignty. The legal approach is oft-used by conservative jurists to argue, for example, that there is no constitutional right to abortion or that few restrictions on gun ownership are consistent with the founders’ intent.

“Because Congress has not said otherwise, we hold the government to its word,” he wrote.

The ruling was soon applied to all of Oklahoma’s Five Tribes — the Cherokee, Chickasaw, Choctaw, Muscogee and Seminole — who were all part of a policy of “Indian removal” from their homelands in Georgia, Florida, Tennessee and Alabama in the early 1800s. The ruling did not fundamentally shift the rights of the tribes, who already held agreements with state, county and municipal governments to allow for co-governance, Cherokee Nation Attorney General Sara Hill said in a phone interview in August. But it did expand the scope of tribal authority. Cherokee tribal courts went from having between 50 and 100 criminal cases per year to nearly 4,000, Hill said.

And in the short term at least, the McGirt ruling gave many Oklahomans a jolt.

“A lot of people in Oklahoma I think were caught off-guard by this idea that they lived in an Indian reservation,” Hill said. “It has definitely created an opportunity to take issues involving Indian country and try to turn them into divisive issues.”

Native peoples in Oklahoma are more integrated with non-Native residents than in states such as South Dakota that have “true reservations,” Stitt said in Tulsa. As recently as 2016, Chickasaw Nation Governor Bill Anoatubby testified to the U.S. House Subcommittee on Indian, Insular and Alaska Native Affairs that “there are no reservations in Oklahoma.”

Though issues remain, the novelty has since largely passed, Hill said.

Disputes over jurisdiction

With the McGirt decision holding that much of the eastern part of the state is a legal reservation, the governor and tribes are now involved in disputes over what that means for who has jurisdiction over that half of the state.

The post-McGirt landscape threatens the state’s capacity to enforce laws, collect income taxes or charge fees for vehicle registration and other routine functions, Stitt has said. Lawsuits have challenged the state’s authority to collect income tax and Tulsa’s authority to impose speeding tickets on tribal citizens.

Stitt says he is working to maintain a state where laws apply equally regardless of race, and in a way that is fair to citizens of the state who largely use the same roads, schools and other services.

But that view diminishes tribal contributions to the state, tribal leaders have said.

“That sort of overlooks the fact that tribal citizens in the state pay property taxes,” Hill said. “They pay sales taxes. The tribes themselves produce massive revenues to the state via gaming … It overlooks the incredible contribution that tribes make.”

The issue dominates Oklahoma policy discourse — and continues to divide tribal communities and the governor.

“There is a storm of injustice that needs to be faced head-on,” Stitt said in his State of the State address. “There are some that want to ignore the last 116 years of state investments and jurisdiction. They want to turn Tulsa and Eastern Oklahoma into a reservation.”

Tribal leaders took exception to the comments. Guests watching the address at a table hosted by Osage Casino & Hotel walked out in protest, Osage Nation communications director Abby Mashunkashey confirmed in an email. Osage Chief Standing Bear was not in attendance, but the nation supported the guests’ decision, Mashunkashey said.

“The Governor’s statements were slanted, disrespectful and minimize the massive contributions Tribal Nations make to Oklahoma, of which we are also citizens,” Edward Gray, the Osage Casino general manager, said in a statement.

“Governor Stitt’s shameful description of tribes simply exercising rights as sovereign nations dating back to before the founding of the United States as ‘a storm of injustice’ is breathtaking, even coming from him,” Cherokee Principal Chief Chuck Hoskin Jr. said in a statement.

No action in Congress

Two years after McGirt, the Supreme Court ruled on another Oklahoma tribal case that limited the scope of McGirt. In the 2022 decision, Oklahoma v. Castro-Huerta, the 5-4 court held that the state could prosecute non-Native people on tribal lands.

Gorsuch, in a dissent, noted that Congress passed laws relating to other states’ criminal jurisdiction in reservations within state borders. There is a process for states to gain that power, but it wasn’t followed in Oklahoma, he said.

Oklahoma has never asked Congress for state-specific legislation authorizing criminal jurisdiction on tribal land, as Kansas, Iowa and other states have.

Congress has thus far declined to intervene following the McGirt decision, and doesn’t appear ready to act in the near future.

“I don’t necessarily think that there’s the political will in Congress to move that at this time,” Stitt spokeswoman Abegail Cove said. “I mean, look at the effort it takes to even appropriate.”

A bill introduced in 2021 by U.S. Rep. Tom Cole, an Oklahoma Republican and citizen of the Chickasaw Nation, would have set a framework for state law enforcement compacts with the Chickasaw and Cherokee Nations, while explicitly maintaining the bill would not diminish tribal jurisdiction.

The bill had support from the tribes involved, but Cole did not introduce it this Congress. A spokesperson for Cole did not return a message seeking comment.

“Congress has not taken any action on this,” Miranda Dabney, a spokeswoman for U.S. Rep. Kevin Hern, a Republican, wrote in an email last week in response to questions about Hern’s position on the issue.

A spokeswoman for U.S. Sen. James Lankford provided statements the Republican gave at the time of the McGirt and Castro-Huerta decisions, but did not answer questions about the current state of the issue. The other members of the all-Republican Oklahoma congressional delegation did not respond to messages seeking comment.

While the Cherokee and Chickasaw supported the Cole bill, tribes don’t see congressional action as strictly necessary, Hill said.

Tribes have worked for decades with cities, counties and the state to juggle overlapping jurisdiction.

“We did not just magically appear here when McGirt was decided,” Hill said. “We have always been here.”

Further agreements could solve many of the issues Stitt has raised, she said.

Americans understand different jurisdictions set their own laws, such as when rules of the road shift between state lines, Hill said.

“We actually are really used to this idea that rules can in fact change, regardless of whether you live in Indian Country,” Hill said. “It’s really not that complicated.”