Law & Principles

Judges among those criticizing McGirt ruling

January 4, 2022

Ray Carter

Since the U.S. Supreme Court handed down its decision in McGirt v. Oklahoma, which effectively declared that nearly half of Oklahoma consisted of Indian reservations, Gov. Kevin Stitt and Attorney General John O’Connor have been among the most high-profile critics of that decision.

But they are now joined by several judges who have provided tacit support for state efforts to seek a new review by the U.S. Supreme Court that could lead to McGirt either being overturned or narrowed. In several instances, judges have included blunt criticism of the U.S. Supreme Court’s decision in their recent rulings.

Andrew C. Spiropoulos, professor of constitutional law at Oklahoma City University, said criticisms aired by lower-court judges are ultimately aimed at the U.S. Supreme Court and bolster the case for the high court to review the case again.

“It does help to have all these judges complain,” Spiropoulos said. “That does make it more likely that the court is going to think there are problems that they need to fix. So it does matter.”

While U.S. District Judge Stephen P. Friot recently ruled against the state of Oklahoma in a McGirt case, Friot’s opinion echoed many arguments raised by the state. Friot wrote that the McGirt decision had put “the State of Oklahoma, and millions of its citizens, in a uniquely disadvantaged position as compared to the other forty-nine states. Core functions of state government, relied upon by all Oklahomans for over a hundred years, are called into question even though only a very small portion of the land within the newly recognized reservation is owned by tribes or individuals with a tribal affiliation. The result the court reaches in this order is a prime example of the havoc flowing from the McGirt decision.”

Friot wrote that the “reservation” recognized by the 5-4 U.S. Supreme Court majority in McGirt “has been thoroughly hollowed out by more than a hundred years of legal, extra-legal, economic, and demographic events. Thus, the Creek Reservation, even as found by the Supreme Court to exist, is essentially a perimeter, a line zig-zagging around a major swath of eastern Oklahoma (including most of Tulsa), within which Oklahomans of all races are born and live their lives, oblivious to any notion that the lands on which they live their lives are in a category apart from the lands on which their fellow citizens would live their lives in any other state (or in the western half of Oklahoma).”

In another recent case, the Oklahoma Court of Criminal Appeals found that the state had wrongfully prosecuted Jeremy Lawhorn for lewd or indecent acts with a child under 16 because Lawhorn is American Indian and the alleged crime occurred on the Quapaw Nation Reservation. Under McGirt, only the federal government could prosecute Lawhorn.

Yet even as the Oklahoma Court of Criminal Appeals ruled in favor of Lawhorn in its opinion, Vice-Presiding Judge Robert L. Hudson warned in a concurring opinion of the growing problems created by the McGirt ruling.

“With each passing day, more state criminal cases are dismissed pursuant to McGirt while more counties in Oklahoma are transformed into jurisdictional mine fields for the bench, bar, and public,” Hudson wrote.

He noted that Ottawa County is home to 10 tribes, including the Quapaw. Now two of those tribes have reservation status under McGirt and more could be added to the list. Hudson noted that will dramatically complicate law-enforcement efforts in Ottawa County.

“One could easily mistake the map showing these historic tribal territories for a jigsaw puzzle with nine pieces of varying shapes and sizes dividing up the puzzle board,” Hudson wrote.

He noted the impact of the McGirt ruling “has a real impact on real people—Indians and non-Indians alike—living on a reservation.”

“Recently, we reversed a conviction for first-degree manslaughter from Wagoner County involving an Indian child victim killed on the Creek Reservation by a non-Indian defendant,” Hudson wrote. “… That case is particularly tragic because there is a serious question whether it will be prosecuted in federal court due to issues surrounding the statute of limitations.”

Judge Gary L. Lumpkin wrote in a concurring opinion that “our nation’s judicial structure requires me to apply the majority opinion in the 5-4 decision of the U.S. Supreme Court in McGirt v. Oklahoma,” but wrote that he did so “reluctantly.” He described the McGirt ruling as “a result in search of an opinion to support it” and an “exercise of raw judicial power to reach a decision which contravened not only the history leading to the disestablishment of the Indian reservations in Oklahoma, but also willfully disregarded and failed to apply the Court’s own precedents to the issue at hand.”

Citing U.S. Supreme Court Chief Justice John Roberts’s dissent in McGirt, Lumpkin wrote that it is clear “that no Indian reservations remain in the state of Oklahoma.”

“The result seems to be some form of ‘social justice’ created out of whole cloth rather than a continuation of the solid precedents the Court has established over the last 100 years or more,” Lumpkin wrote.

Lumpkin has repeated that message through concurring opinions in other McGirt cases that have come before the court, writing that although he is required to “apply the edict of the majority opinion in McGirt” he is “not required to do so blindly and without noting the flaws of the opinion.”

Spiropoulos, who is also the Milton Friedman Distinguished Fellow at the Oklahoma Council of Public Affairs (OCPA), said those written opinions are the primary way judges can highlight problems with higher-court rulings even as they are required to uphold those decisions.

“Lower-court judges have no choice but to implement the dictates of their superiors, and so sometimes the only option they have is to express their frustration when they’re trying to implement the principles,” Spiropoulos said.

The majority in the McGirt ruling conceded it would create challenges in Oklahoma, but offered “some cavalier assurance that it will all just be worked out back in Oklahoma without appreciating how difficult it was going to be to work out these problems,” Spiropoulos said.

“Maybe that’s one of the reasons the courts are frustrated,” Spiropoulos said.

He said the U.S. Supreme Court majority in McGirt underestimated the magnitude of the problems created by the ruling.

“For 100 years we’ve conducted ourselves as though this problem didn’t exist, and it’s a real mess to try to take 100 years of practice, other statutes, other precedents, and try to make something coherent out of it,” Spiropoulos said. “It’s not easy to do.”

He noted the composition of the U.S. Supreme Court has changed since McGirt was handed down with the appointment of Justice Amy Coney Barrett to fill the seat left vacant by the death of Justice Ruth Bader Ginsburg. Ginsburg was among the 5-4 majority in McGirt, and it is not known how Barrett would rule if the court takes a second stab at the issue. It is also not clear how Roberts would rule. While he opposed the McGirt ruling and wrote the dissenting opinion in the case, Roberts has also stressed respect for judicial precedent.

Congress could also address the issue by formally disestablishing the various Oklahoma reservations, but Spiropoulos noted that remains unlikely based on the current political situation.

“The only audience that matters right now,” Spiropoulos said, “is the U.S. Supreme Court.”