The U.S. Supreme Court’s 2020 ruling in McGirt v. Oklahoma, which held that the pre-statehood reservation of the Muscogee (Creek) Nation was never formally disestablished for purposes of federal criminal law, created vast uncertainty regarding regulatory issues across most of eastern Oklahoma.

The multiple “reservations” effectively recreated by McGirt cover nearly half the state and include most of Tulsa. Officials worried that non-Indian citizens living in those areas—who constitute the majority of the population—would now be subject to regulations imposed by tribal entities, and not just by state government, on everything from business permitting to licensure and more.

A recent decision issued by the Oklahoma Supreme Court, in a case centered on whether American Indians living in eastern Oklahoma still have to pay state income tax, also addressed whether the McGirt decision gave tribes civil regulatory authority over all individuals living in eastern Oklahoma.

In a word, the court answered, “No.”

A majority of the Oklahoma Supreme Court concluded that tribes do not have civil regulatory authority following the McGirt decision, unless the U.S. Supreme Court declares otherwise.

In Stroble v. Oklahoma Tax Commission, the Oklahoma Supreme Court declared that Alicia Stroble “is asking this Court to extend McGirt to civil and regulatory law—to find the State is without jurisdiction to tax the income of a tribal member living and working on the tribe’s reservation. This we cannot do.”

The majority opinion further stated, “The United States Supreme Court’s declaration—113 years after statehood—that nearly half of Oklahoma is a reservation is unprecedented. To date, the United States Supreme Court has not extended its ruling in McGirt beyond the Major Crimes Act. To date, the United States Supreme Court has not extended its ruling in McGirt to the State’s civil or taxing jurisdiction. And it is not this Court’s place to do so.”

Several justices wrote concurring opinions that reinforced the court’s conclusion that Oklahoma tribes do not have civil authority over non-Indians living in eastern Oklahoma.

Justice Dustin Rowe’s concurring opinion stated, “I agree with the per curiam’s holding that the United States Supreme Court has not extended its ruling in McGirt to Oklahoma’s civil jurisdiction or taxing jurisdiction—nor is it our place to do so.”

He later wrote, “The United States Supreme Court expressly limited its finding to the Major Crimes Act. As such, McGirt’s holding cannot and should not be expanded to civil regulatory law.”

In her concurring opinion, Justice Dana Kuehn wrote, “Let me be clear. I believe the question of reservation status is settled. But this Court neither can nor should apply the McGirt criminal remedy—lack of jurisdiction requiring dismissal—to any Oklahoma civil cases. McGirt applied that remedy in a criminal law context only. The Oklahoma Supreme Court has the authority to rule that we will not wholesale extend that remedy to civil law matters. Otherwise, we will need to continue our practice of reviewing every civil law matter from here to eternity to discern whether reservation status alone requires Oklahoma courts to apply a remedy dictated by a federal criminal case. I would not continue to do so and find that the remedy does not apply to civil matters.”

In his concurring opinion, Justice James Winchester wrote, “Extending McGirt to civil and regulatory matters would create greater uncertainty in commerce throughout eastern Oklahoma. The McGirt Court recognized five separate reservations encompassing the entire eastern half of Oklahoma, each with its own unique culture and laws. This divergence would ultimately affect mortgages, auto and appliance loans, and landlord-tenant relationships. Many everyday contractual and economic activities would fall under the jurisdiction of tribal courts. Extending McGirt would also introduce an additional layer of governance, which would exclude non-tribal citizens—who make up 85% of the population in eastern Oklahoma—from voting in the government that oversees their affairs. The resulting uncertainty about these activities could impair commerce between tribal and non-tribal entities and individuals.”

State Agencies Predicted that McGirt Could Have Serious Repercussions

As noted by Winchester, extending McGirt beyond criminal law to also include civil regulation would have been extremely disruptive for thousands of Oklahomans and likely created chaos.

Following the McGirt ruling, Gov. Kevin Stitt created the Oklahoma Commission on Cooperative Sovereignty in 2020 to explore the repercussions of the ruling. As part of that effort, he ordered all state agencies to provide analyses on how the ruling could impact their areas of focus. The resulting reports, which ran nearly 200 pages in combined length, showed the McGirt decision could have wide-ranging repercussions.

The Oklahoma Department of Commerce warned that the McGirt decision could create a drag on business investment and job creation in Oklahoma due to associated regulatory uncertainty.

“One of the biggest factors that could harm Oklahoma’s ability to compete with other states for business relocation and expansion is the uncertainty posed by McGirt,” the Oklahoma Department of Commerce analysis warned. “If large portions of the State are found to be established reservation land, it could lead to great uncertainty for businesses. This uncertainty could relate to taxation issues as previously described, or it could also lead to regulatory issues. If a business is unsure as to whether they will have to pay taxes to the State or the tribe, or both, it could lead to consideration of a competing state if there are other options for relocation or expansion. If a business is unsure as to whether state regulations, tribal regulations, or both would apply, it would seem reasonable that they would choose another location to operate where these issues would not exist.”

The Oklahoma Board of Nursing similarly warned that McGirt could reduce business creation in eastern Oklahoma, including among medical providers.

In its statement of potential impact, the board noted that “if the eventual result of the McGirt decision and relevant cases to follow is the expansion of tribal government authority in a wide range of areas, including regulation and taxation, this has the potential of discouraging medical practice/business development within the state due to the lack of certainty in these areas.”

The Oklahoma State Board of Medical Licensure and Supervision noted it may “no longer have authority to license physicians should those individuals only practice medicine within the Muscogee (Creek) Nation reservation lands at issue in McGirt.”

The Oklahoma State Board of Osteopathic Examiners raised similar concerns in its review.

In the area of dealer-to-consumer contracts, such as the purchase of a used car, the Oklahoma Motor Vehicle Commission noted that “if our licensing relationship disappears or is eroded for dealers on reservation land, consumers doing business with dealers there would not have an agency with authority to reach out to for conflict resolution or mediation. It may be as if the customer made a purchase in another state or country.”

The Council on Law Enforcement Education and Training (CLEET), which regulates private security, investigative, and bail-enforcer businesses, noted that post-McGirt “the potential arises for Indian individuals and Indian-owned private businesses to object to and refuse to comply with state licensing requirements.”

The Oklahoma Department of Agriculture, Food, and Forestry warned that the McGirt decision could have repercussions for the agency’s regulation of animal waste at hog and poultry operations, as well as oversight of pet breeders and shelters.

In Oklahoma, groundwater is a private property right, but stream water is legally defined as public water available for appropriation by the Oklahoma Water Resources Board (OWRB). In its report, the OWRB stated, “If the state is unable to administer the water rights program within the reservation boundaries of the Muscogee (Creek) Nation, approximately 180 groundwater permits and 235 stream water permits would be affected.”

The Oklahoma State Department of Health licenses and regulates facilities and professions that include restaurants, food manufacturers, tattoo and body piercing artists, medical facilities, and long-term care facilities.

“The question that arises is whether McGirt has any impact on OSDH’s ability to license and regulate the facilities and professions that are located in the Creek Reservation, particularly if the facility or license belongs to a Native American member,” the agency’s report stated.

In Tulsa County alone the agency noted it issues restaurant licenses to more than 5,000 entities.

In a 2020 column issued after the McGirt ruling, Adam Dinnell and Andrew Hicks, attorneys with the Schiffer Hicks Johnson law firm, warned individuals in the oil and gas industry that the McGirt ruling “raises the specter of added uncertainty, dueling requirements, and the prospect of increased litigation.”

Dinnell and Hicks said the Oklahoma Corporation Commission’s traditional role as primary oil and gas regulator “could be supplanted in eastern Oklahoma” and that tribes could impose their own wildlife protection clauses, land-use restrictions, and prohibitions against water contamination, as well as implement their own oil and gas permitting processes, drilling plan requirements, and zoning restrictions.

The attorneys also noted that “oil and gas business in eastern Oklahoma could see tribes seeking to impose their own taxes on non-Indian oil and gas lessees.”