Oklahoma state officials resist Supreme Court ruling upholding tribal authority over Native American country
It is unusual for someone to ask the Supreme Court of the United States to review one of its decisions. It is very rare for this to happen almost immediately after the decision has been made. But in the two years since the court’s decision in a landmark Native American rights case, the state of Oklahoma has made that request more than 40 times.
State officials have also repeatedly refused to cooperate with tribal leaders to comply with the ruling, released in 2020 and known as McGirt v. Oklahoma. Local governments, however, continue to cooperate with tribes and show how the decision could really help build ties between tribal governments and their neighbors.
In the McGirt decision, the Supreme Court ruled that much of eastern Oklahoma is Indian Country under the terms of an 1833 treaty between the US government and the Muscogee Creek Nation. Based on that treaty and an 1885 federal law, the ruling effectively means the state of Oklahoma cannot prosecute crimes committed by or against Native Americans there. Federal and tribal officials are the only ones who can prosecute these cases.
Since that decision, federal courts have ruled that the Oklahoma lands of five additional tribes—the Cherokee Nation, Choctaw Nation, Seminole Nation, Chickasaw Nation, and Quapaw Nation—also remain Native American lands and are subject to federal and tribal laws. jurisdiction under the Federal Act of 1885. Under these rulings, approximately 43% of Oklahoma is Indian Country.
Together, these court decisions have filled a major legal void. Prior to these rulings, suspected criminals in eastern Oklahoma routinely avoided prosecution because police could not agree whether the state, tribal, or federal government had jurisdiction over the territory where the crime was committed.
The Supreme Court clarified that certain areas are tribal lands, subject to federal and tribal criminal jurisdiction. This makes it harder for suspected criminals to avoid prosecution, because now law enforcement officials, as well as ordinary people, know definitively that federal and tribal authorities can prosecute these crimes.
Oklahoma’s governor and attorney general resisted the McGirt decision and repeatedly asserted that the decision hurts the state.
They argue it undermined public safety because it led to the release of thousands of criminals from state prisons.
However, most of those released from state custody after the McGirt decision were charged in federal or tribal courts. Jimcy McGirt, whose name is named after the Supreme Court case, was tried and convicted in federal court for sexually assaulting a 4-year-old girl. He is currently serving a life sentence without parole in federal prison.
State officials also argue that the McGirt decision threatens to cost the state millions of dollars in tax revenue from taxes on the income and sales of tribal citizens in eastern Oklahoma. Tax experts counter that the state has overstated the concern because most land in eastern Oklahoma is owned by non-Natives and remains taxable by the state.
Based on these claims, state officials have repeatedly asked the Supreme Court to review its decision – and have been denied more than 30 times. In one such attempt, in January 2022, the court refused to hear a case that would have applied the McGirt decision retroactively to convictions that were final at the time McGirt was decided. Defendants with final convictions will not be able to challenge them and will serve their sentences in Oklahoma state prisons.
The Supreme Court agreed to consider whether Oklahoma should have the power to prosecute non-Indians accused of committing crimes against Indians in Indian Country, but declined to review its decision in McGirt. Any decision in this case may adjust the McGirt decision, but cannot reverse it.
no longer work together
Beyond asking the Supreme Court to overrule, Oklahoma has simply ceased to pursue a productive working relationship with tribal governments.
In the past, Oklahoma had mutually beneficial arrangements with tribal governments. For example, the Cherokee and Choctaw nations both say they have treaty rights to hunt and fish on their reservation lands without state permission. But since 2016, they have brokered deals to pay for state-issued hunting and fishing licenses for tribal citizens to use on tribal lands. They were willing to pursue these agreements even after the McGirt decision suggested that under their treaties with the federal government, the state has no authority over hunting and fishing on their lands.
Oklahoma Governor Kevin Stitt had celebrated renewing the accords in 2020, but refused to extend the accords until 2022. He claimed the accords treated tribal citizens unfairly because tribal governments were paying a tariff wholesale reduced for licenses. The state will lose $38 million by not renewing the agreements.
However, state game wardens will still be allowed to enforce hunting regulations on tribal lands under a separate agreement signed in 2020. As hunting and fishing seasons begin, it remains to be seen whether the state will seek to prosecute tribal members hunting and fishing on reservation lands without a state license.
The state of Oklahoma has also sought to limit the ability of tribal governments to regulate the environment on tribal lands by asking the Administrator of the U.S. Environmental Protection Agency to allow the state to continue to administer its environmental programs in tribal countries. Federal environmental laws recognize the right of tribal governments to set and enforce environmental standards, including water and air quality, on their lands. Oklahoma’s actions are aimed at preventing that.
A more collaborative approach
Despite efforts by the State of Oklahoma to discredit tribal governments and their treaty rights, the McGirt decision promoted cooperative federalism, or the sharing of responsibility among different governments to work together to govern people at the level local.
Local governments cooperated with tribes and built on pre-existing relationships to implement the McGirt decision. Tribal governments responded to the decision by increasing their law enforcement budgets, hiring additional public safety officers, prosecuting prosecutors and judges, and improving their criminal codes.
Choctaw Public Safety has hired 30 more law enforcement officers. The Cherokee Nation, Muscogee Nation, and Choctaw Nation all have cross-delegation agreements with local law enforcement agencies to ensure transparent administration of public safety. These agreements allow municipal officers to act as tribal officers and vice versa in specific areas and encourage cooperation between local and tribal law enforcement.
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The Cherokee Nation has signed agreements with 13 municipalities to manage fines for traffic tickets. The McGirt decision specifies that the tribal government, instead of the cities, should receive the money. Under the agreement, the Cherokee Nation returns nearly all of the traffic fines to local governments so they can continue to enforce local law. Local officials welcomed the increased cooperation with tribal governments.
Tribes and local governments demonstrate an example of collaboration that the state could also be a part of. Tribal governments have expressed their willingness to work with the State of Oklahoma and have recognized that they share common interests in providing for the needs of their citizens. By resisting the McGirt decision, state officials are missing an opportunity to connect and improve government services for all Oklahoma residents.