Law & Principles

OCPA urges Congress to provide post-McGirt fairness, certainty and unity

October 8, 2020


OKLAHOMA CITY (October 8, 2020)— In a letter to members of Oklahoma’s congressional delegation, the Oklahoma Council of Public Affairs (OCPA) has urged Congress to formally disestablish five tribal reservations to ensure fairness, certainty and unity for all Oklahomans. This ensures all Oklahomans are subject to the same laws and regulations in the aftermath of the U.S. Supreme Court’s ruling in McGirt v. Oklahoma, which held that the Muscogee (Creek) Nation’s reservation was never disestablished.

In 1997, Jimcy McGirt was convicted of molesting, raping, and forcibly sodomizing his wife’s four-year-old granddaughter. In a 5-4 decision, the U.S. Supreme Court overturned McGirt’s conviction on the basis the crime was committed in “Indian Country” where Oklahoma had no jurisdiction.

“Our history is marked by great ideals, great achievement and sadly at times great injustice,” said Jonathan Small, president of OCPA. “But a house divided against itself cannot stand. We cannot survive if we constantly revisit and re-litigate the sins of our forefathers. Dividing Oklahomans against their neighbors by stoking bitterness and revenge, creating an Oklahoma with two sets of rules based on a citizen’s family tree, only creates new injustices. It does nothing to right the wrongs of the past.

“Congress must act to ensure all Oklahomans are treated with the same respect and fairness, no matter who they are or where they live,” Small continued. “The U.S. Supreme Court offered the most simple and appropriate solution: formal disestablishment of the reservations to reflect the less formal actions of a century, maintaining the understanding of citizens since Oklahoma’s founding and admission to the United States.”

“Our staff and board have studied these issues for years,” said Larry Parman, chairman of the OCPA Board of Trustees and a former Secretary of State and Secretary of Commerce. “We have heard and analyzed a wide range of perspectives and there is only one conclusion to be reached: Unless our state leaders and Congress act to resolve the problems created by the McGirt decision, an inconsistent patchwork quilt of rules, regulations and inequitable compacts will severely hamper the progress of lives and livelihoods in Oklahoma and pit neighbor against neighbor for decades to come. Rather than ignore that division, we support measures that generate fairness, certainty and unity. As a business owner and former Secretary of Commerce, I can assure you that economic development efforts just got a lot harder.”

While the McGirt ruling applied only to Creek land and questions of criminal prosecution, its precedent and basis will result in application to numerous other issues, such as taxation and regulation, and also include the land of four other tribes and a combined territory that includes most of eastern Oklahoma.

As a result of the ruling, litigation is expected to determine if non-Indians are subject to taxation from both the state and a tribe if they live on what is now considered a reservation, while tribal members may be exempted from much if not all state and local taxation. On a per-capita basis, at a minimum, more than $500 million in Oklahoma state and local taxing authority is now in doubt due to the McGirt decision and its effect on other reservation case law.

Businesses could also be subject to different taxes and regulations—state and/or tribal—based on the heritage of the business’ owners and location of the company.

As a result of McGirt, title insurance companies are already including disclaimers for transactions that would include any “claim that the Insured, the Land or the Title is subject to the laws or jurisdiction of a Native American Tribe or Nation.” Property insurance companies are also questioning payment for claims that would be adjudicated by a Native American tribe or nation.

It appears the regulatory uncertainty created by the decision has also hampered business recruitment attempts by the state of Oklahoma.

McGirt’s negative repercussions are expected to affect all Oklahomans, including those of tribal heritage, through less effective and consistent law enforcement, reduced economic opportunity, higher insurance costs, reduced funding of schools, transportation, public safety, and more.

To prevent those outcomes, OCPA’s letter calls for Congress and state leaders to embrace solutions that provide fairness to all Oklahomans in the applicability of laws, taxes and regulations; certainty for all Oklahoma citizens; and unity for all Oklahomans.

To achieve those goals, OCPA is urging members of Congress to formally disestablish the five tribal reservations, which would restore regulatory authority to the pre-McGirt norm that was in place for more than a century in Oklahoma. Disestablishment would not dissolve tribal governments, but would simply maintain their authority at the same level the five tribes had prior to McGirt, and it would also place the five tribes on equal footing with more than 30 other tribes that are headquartered in Oklahoma.

In addition to seeking congressional action, OCPA is calling upon state and tribal leaders to enter into an accord that makes clear that state laws are not negated based on tribal heritage or physical locations and that state laws apply to and have precedence for all Oklahomans.

The Oklahoma Council of Public Affairs is a free-market think tank that works to advance principles and policies that support free enterprise, limited government, individual initiative and personal responsibility.