June 04, 2021

The Aftermath of McGirt

Posted on June 4, 2021 by L. Mark Walker

In 1997, Jimey McGirt, an enrolled member of the Seminole Nation, was convicted in an Oklahoma District Court of molesting, raping and sodomizing a four-year-old girl – his wife’s granddaughter.  For this, the State sentenced him to 1,000 years plus life in prison.  Mr. McGirt claimed that, because he was a Seminole tribal member, and because the crimes took place within the original territorial boundaries of the Creek Nation under its treaties with the United States, the federal Major Crimes Act (MCA) required that he be tried in federal court – not in state court – and that he was therefore entitled to a new trial.  In July of 2020, in McGirt v. Oklahoma, the United States Supreme Court agreed.

Under the MCA, “any Indian who commits” certain specified offenses within “Indian Country” are to be tried in federal court.  Most of the McGirt decision analyzes the question of whether the original territorial boundaries of the Creek Nation remained “Indian Country” for purposes of the MCA, or whether the Creek reservation had been disestablished by the various federal allotment acts enacted around the end of the 19th century.  The McGirt court emphasized that its ruling was strictly limited to the MCA and to criminal law.  But was it?

There are 39 federally recognized tribes in Oklahoma.  Their original treaty territorial boundaries encompass roughly one-half of the State of Oklahoma.  The McGirt decision will result in the retrial of hundreds of prior state court convictions.  Nationally, there are 574 federally recognized tribes and native groups located in 36 different states.  Does the McGirt decision have broader implications than just criminal law?

Eight days after the decision, a challenge was made to the Oklahoma Corporation Commission’s (OCC) jurisdiction to regulate oil and gas activities within the Creek Nation’s historical territorial boundaries based upon McGirt.  The OCC regulates the conservation of oil and gas through spacing and pooling orders, but it also enforces environmental regulations which address the remediation of oilfield pollution.  The OCC held that McGirt did not deprive it of jurisdiction in Indian Country, but that ruling is now on appeal to the Oklahoma Supreme Court.  It is likely headed to the U.S. Supreme Court.

Recently, the U.S. Department of Interior (DOI) notified the State of Oklahoma that the Oklahoma Department of Mines and the Oklahoma Conservation Commission could no longer exercise mining jurisdiction under the federal Surface Mining Control and Reclamation Act of 1977 on Indian Lands within the State due to the McGirt decision.  The DOI asserted that its Office of Surface Mining Reclamation and Enforcement agency will assume regulatory authority over such lands.  The Oklahoma Attorney General has disputed the federal government’s position, arguing that McGirt is limited to criminal law jurisdiction, and has advised the State’s agencies not to comply with the DOI’s decision.

McGirt has also led to a challenge to the State of Oklahoma’s right to impose income taxes upon tribal members who live and work within the Tribe’s historical territorial boundaries.  Before McGirt, the State only exempted from income tax those tribal members who actually lived and worked on lands currently owned by the Tribes – not on historical Tribal lands that are now owned by non-Indians.

More recently, an Oklahoma District Court judge, whose court sits within the historic territorial boundaries of the Chickasaw Nation, issued an order sua sponte questioning its jurisdiction over a lawsuit involving oilfield pollution claims in light of McGirt and Bosse v. Oklahoma.  In Bosse, on May 19, 2021, the Oklahoma Court of Criminal Appeals held that, consistent with McGirt, the Chickasaw Nation’s reservation had never been disestablished and, therefore, the federal courts had jurisdiction over criminal charges against tribal members charged with committing crimes within the historical territorial boundaries.

While McGirt emphasized that its ruling was limited to criminal law, the limits of that ruling are now being tested.  Expect more decisions from the U.S. Supreme Court as these issues meander through the court system.