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Supreme Court Update: Potential Impacts of McGirt v. Oklahoma’s Confirmation That Eastern Oklahoma Remains Indian Country

Supreme Court Update: Potential Impacts of McGirt v. Oklahoma’s Confirmation That Eastern Oklahoma Remains Indian Country
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Scott Seidl, Counsel

Licensed to practice law in Texas, Oklahoma, and North Dakota
This article will read slightly different than the previous articles that have been published by the other attorneys in our Firm. I am a proud member of the Choctaw Nation of Oklahoma and when news of the Supreme Court of the United States’ opinion in the case McGirt v. Oklahoma was released, it felt as if a universal shift had occurred in the realm of Federal Indian Law; for those of us who practice it and those of us, both Native and non-Native, who are affected by it.
Federal Indian Law is extraordinarily complex. In the 1830’s, the Five Civilized Tribes—the Cherokee, Chickasaw, Choctaw, Creek, and Seminole—were forcibly removed from their ancestorial homelands in the Southeastern United States and relocated to Eastern Oklahoma on what is known as the “Trail of Tears.” Once there, the tribes were given reservations and the promise of self-determination and self-governance over their lands. As time went by and the federal government’s policies towards Native Americans shifted, the land within these five reservations was allotted to individual Native Americans (by what is known as the Dawes Act) and eventually Oklahoma became a state. Despite the reservations being allotted and the influx of non-Natives into the region, the reservations were never formally disestablished by the federal government (a fact that was crucial in reaching the holding in McGirt). Thus, what was and was not “Indian Country” in Eastern Oklahoma remained in sort of a legal limbo from the time of the Dawes Act to the opinion in McGirt, though in practice, the State of Oklahoma generally treated the reservations as having been disestablished and subject to state law.
To oversimplify how McGirt made its way to the highest court of the land: Jimcy McGirt is a member of the Creek Nation who has a long and sordid criminal history. There is a law, known as the Major Crimes Act, which holds that a crime committed by a Native American on a reservation is a federal matter (thus the state of Oklahoma has no jurisdiction to prosecute). McGirt’s counsel focused on the second prong of that analysis: did McGirt’s crimes occur on a reservation? After an extensive analysis of the history and laws that had been passed since the tribes’ removal to Eastern Oklahoma, a 5 – 4 majority of the Court found that Congress had never terminated (or disestablished) the reservations that belonged to the Five Civilized Tribes. Thus, Mr. McGirt’s crimes occurred on the reservation, the State of Oklahoma lacked jurisdiction to prosecute him, and his conviction was void. In so holding, the Supreme Court held that Eastern Oklahoma remains as reservations.
Thus far, the holding in McGirt has only been applied to criminal matters—those instances where Native Americans have been charged with and/or convicted of crimes that fall under the Major Crimes Act, which is a federal law, and that have occurred in Eastern Oklahoma. However, the possible ramifications in other areas of the law are massive.  Of particular concern to our clients are potential regulatory impacts that could be asserted by the tribes on lands that comprise their reservations; particularly in the upstream oil and gas and midstream arenas.  Some of the more extreme commentators have gone so far as to suggest that the tribes could begin invalidating oil and gas leases and pipeline rights of way; however, this is yet to be seen (and in my opinion, unlikely to happen). Additionally, concerns have been raised that tribes may begin imposing either sales taxes (much like a state sales tax) or ad valorem taxes on real property located within the boundaries of their reservations. Again, with the century’s worth of precedent standing contrary to such a dramatic change, it seems unlikely that tribes will attempt to broadly exert their newfound authority in such manners. There is also a chance that Congress will act and disestablish the reservations to return matters to the status quo (and moot the holding in McGirt).
Regardless of the ultimate impacts that the McGirt case has on businesses in Oklahoma, and by extension, elsewhere, we at Rapp & Krock will be following whatever developments that the holding in McGirt may have on our clients. We will gladly assist in navigating any new rules or regulations that may emerge from the drastic shift that is the McGirt holding and assist clients in planning for the potential unknowns.
DISCLAIMER
Rapp & Krock, PC presents the information in this article for general education purposes only. Although this article discusses legal issues, it is not legal advice. The law and the content of any linked website may have changed since this article was written, and Rapp & Krock, PC makes no warranty or guarantee about the continuing accuracy of the information presented. Use of this article does not create an attorney-client relationship, and Rapp & Krock, PC does not represent you unless and until we are expressly retained in writing.

Copyright © 2020 by Scott Seidl. All rights reserved.