McGirt's effect in Oklahoma

The U.S. Supreme Court this past week granted the state of Oklahoma joint jurisdiction with federal and tribal governments in criminal cases involving non-Native Americans on tribal land. This latest ruling does little to un-muddy the waters that have swirled since the court’s 2020 ruling in McGirt v. Oklahoma.

In this latest case, Oklahoma v. Castro-Huerta, Justice Brett Kavanaugh wrote the majority opinion, stating the courts have “long held that Indian country is part of a State, not separate from it.”

Justice Neil Gorsuch, who wrote the majority opinion in McGirt, wrote the dissenting opinion on this case. He said Kavanaugh’s argument runs contrary to 200 years of established law and legal precedent and represents an “embarrassing new entry into the anticanon of Indian law.”

Gorsuch continued that Oklahoma’s own laws prevent the state from exercising its newly won authority and insisted the matter is far from over.

McGirt v. Oklahoma declared that much of eastern Oklahoma is Indian land as Congress never formally disestablished Indian reservations in the area at statehood and specified that Native Americans who commit crimes on the reservation cannot be prosecuted by state or local law enforcement. 

In Oklahoma v. Castro-Huerta, Kavanaugh said the Constitution provides states with jurisdiction in Indian land unless such jurisdiction is specifically preempted. Gorsuch countered that tribal governments are sovereign nations not subject to state jurisdiction unless and until a state makes a formal request as part of a process applied in every other instance of a state sharing jurisdiction with federal and tribal governments.

The truth is McGirt raised questions for the state that are not easily answered. In addition to issues of criminal justice, questions arose about whether tribal nation citizens are required to pay state taxes, and about oil and gas leases and other contracts, even questions of whether the state flag will be flown on land owned or leased by tribal governments.

The Supreme Court’s sharp divide in this latest case points to the difficulties encountered in this issue.

Many in our state are sharply divided as well. On one side is the governor and many municipal officials who argue that McGirt led to inequities of law for Native and non-Native residents of our state. They desired the clarity they feel they received through Castro-Huerta. On the other side are many of the sovereign nations that call Oklahoma home. They say McGirt affirmed tribal sovereignty and requires the United States to uphold its treaty obligations – something they’ve been waiting on for decades.

It honestly seems like this latest case will be no different than McGirt itself. It leaves us with as many questions as before about how to move forward as a state in partnership with our tribal nations in the protection of all Oklahomans. I would hope a coming together would happen sooner rather than later by all parties involved. 

Please feel free to contact me at marcus.mcentire@okhouse.gov or (405) 557-7327.