Law & Principles, Economy

McGirt ruling now negatively impacting tribes

April 12, 2021

Ray Carter

The repercussions of the U.S. Supreme Court’s McGirt ruling have largely been confined to victims of crime who have seen murders, rapists, and child abusers released from prison. But now even the tribal governments who hailed the ruling are being directly impacted in a negative way.

That fact was highlighted in a recent meeting of the Oklahoma Transportation Commission when officials discussed McGirt-related delays to work on an interchange between I-35 and State Highway 9 just south of Norman near the Chickasaw Nation’s Riverwind Casino.

In McGirt v. Oklahoma, the U.S. Supreme Court held that the Muscogee (Creek) Nation’s reservation was never disestablished. While the ruling applied only to Creek land and questions of criminal prosecution under the federal Major Crimes Act, its precedent and basis are expected to result in application to numerous other issues, such as taxation and regulation, and also include the land of at least four other tribes—the Choctaw, Chickasaw, Cherokee, and Seminole nations—whose combined territory includes most of eastern Oklahoma. Subsequent court rulings have expanded the decision’s reach to include tribes other than the Creek Nation.

The repercussions of the McGirt ruling are now creating obstacles to progress on economic development efforts in areas of Oklahoma now considered to be Indian Reservations.

In an exchange first reported by NonDoc, Transportation Commissioner T. W. Shannon suggested a delay on the interchange project near the Chickasaw’s casino was due to political influence. Shannon is a Chickasaw Nation citizen and president of Chickasaw Community Bank. He is also being paid $6,250 monthly on a month-to-month contract, or $75,000 annually, by the Oklahoma House of Representatives to serve as the House “public liaison” on redistricting matters.

However, Transportation Secretary Tim Gatz said the post-McGirt reality facing Oklahoma means many projects may be delayed as officials work through the new legal challenges created by the ruling.

“In the context of interactions with the tribal governments, I think that given all of the things that are new in the discussion—and that ranges from compacting to some of the things that are uncertainties in the McGirt case, etc.—are going to cause the department to engage the governor’s office for advice and counsel on a regular basis as we work our way through tribal agreements,” Gatz said. “I think that’s just, from our perspective, something that’s going to be necessary.”

Shannon noted that “many of the projects” on the agency’s eight-year road plan are at least partially financed by tribal entities and located within areas now treated as reservation lands under McGirt.

Those projects may be delayed significantly by the new legal uncertainty created by the McGirt ruling.

Those delays are not wholly unexpected. Following the McGirt decision, Gov. Kevin Stitt ordered state agencies to conduct a review on how the decision could impact state authority.

The Sept. 24, 2020 McGirt report issued by the Oklahoma Department of Transportation (ODOT) warned of several potential problems. The report warned that ODOT’s ownership of existing right of way located within the newly recognized Indian Reservation boundaries “could be voidable for want of jurisdiction,” noting that “many miles of state and federal highways that were previously considered outside of ‘Indian Country’ now are considered to run directly through an established Indian Reservation.”

Because most right of way acquired by ODOT since 1907 was done so without consideration of Indian Reservation boundaries, the report said those rights of way “could be subject to collateral attack and voided for want of jurisdiction if a past condemnation case had been filed mistakenly in state rather than federal court.”

At the same time, the report noted that tribal governments could file inverse condemnation claims against the State of Oklahoma.

The report also stated that ODOT’s ability to condemn new right of way within Indian Reservation boundaries would need to be clarified.

And the agency warned that governmental tort claim immunity and exemptions within Indian Reservation boundaries are questionable.

“It is well settled that the Oklahoma Governmental Tort Claims Act (GTCA) provides immunity to the State and its political subdivisions from suits in tort against the state for actions of its employees acting within the scope of their employment when the tortious act occurs within the State,” the ODOT report stated. “However, governmental tort claim immunity is usually restricted to the boundaries of the State.”

The report went on to note, “With the ruling in McGirt possibly turning nearly 43% of the State into ‘Indian Country’ there is potential that the state tort immunity and liability limitations provided to the State by the Oklahoma GTCA could be made inapplicable in certain kinds of cases within the Reservation territory. This means an increase in potential tort liability for ODOT as well as all other political subdivisions of the State within the ‘Indian Country’ boundaries that has been established by McGirt.”

Even as debate continues over McGirt’s impact and reach in Oklahoma, another U.S. Supreme Court case could potentially solidify McGirt or upend state-tribal relations yet again.

In United States v. Cooley, the U.S. Supreme Court has been asked to rule whether a tribal police officer had authority to detain and search a non-Indian, on a public right-of-way within a reservation, based on a potential violation of state or federal law.

Joshua James Cooley was charged with one count of possessing methamphetamine with intent to distribute after Officer James Saylor of the Crow Tribe of Montana spotted Cooley’s vehicle parked on the shoulder of the road and pulled over, believing Cooley required assistance. The incident occurred on a section of U.S. Route 212 that lies within the boundaries of the Crow Reservation.

The court recently heard oral arguments in the case. Several justices referenced the court’s prior ruling in Montana v. United States, which held that the Crow Nation could not regulate nonmember hunting and fishing on fee-simple land owned by nonmembers within the bounds of its reservation. That ruling held that tribal authority over nonmembers existed only when the nonmember entered into a “consensual relationship” with the tribe or the nonmember’s “conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”

If the court ultimately applies the Montana standard to a broader range of areas in its pending Cooley decision, expected later this year, that could significantly alter jurisdictional issues in Oklahoma’s reservations as well, potentially restricting the impact of the McGirt decision.

Even as that case looms, a recent analysis by a Harvard law professor suggests additional cases could lead to curtailment of McGirt’s scope in Oklahoma.

In an analysis first reported by Fox News, Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, predicted that the U.S. Supreme Court “likely would overturn McGirt if a suitable case were brought before it.”

In his career, Feldman’s advice has been consulted by a wide range of officials. In 2003 he served as senior constitutional advisor to the Coalition Provisional Authority in Iraq, and subsequently advised members of the Iraqi Governing Council on the drafting of that nation’s interim constitution.

In his McGirt analysis, Feldman predicted that future cases tied to McGirt could be significantly impacted by City of Sherrill v. Oneida Indian Nation of New York, a 2005 case in which the U.S. Supreme Court held that the Oneida Indian Nation could not prevent the city and state from taxing land the tribe had once held, sold to non-tribal individuals, and later repurchased, even though the land was within the Indian reservation. The court has since cited that case as precedent in a separate 2016 case.

“The courts are therefore likely to treat Sherrill as controlling precedent on the question of taxation and all other civil regulation of territory that was not generally understood to be reservation land for roughly a century but came to be recognized as reservation land by virtue of the Supreme Court’s decision in McGirt,” Feldman wrote. “Under Sherrill, the federal courts are likely to hold that the Muscogee (Creek) Nation and the other similar situated tribes cannot obtain a federal court ruling that would exclude the state of Oklahoma from exercising its accustomed regulatory and taxing jurisdiction in the territory deemed to be Indian country in McGirt. Oklahoma state courts are likely to apply Sherrill to conclude that the state’s civil jurisdiction continues unimpaired over the McGirt territory.”