By: Ryan Maxey
The State of Oklahoma would like the United States Supreme Court to reconsider its July 2020 holding in the case of McGirt v. Oklahoma. Governor Kevin Stitt, among others, claims that by holding that the Muscogee Creek reservation was never disestablished, the Supreme Court has thrown the state into chaos. Governor Stitt says that the Court’s ruling is the greatest challenge any state has faced since the Civil War, that it has loosed convicted felons to roam the streets of Tulsa, and that it will leave the state’s coffers empty. The McGirt ruling is certainly momentous; it has been referred to as a “bombshell” by Arizona State law professor Robert Miller, an enrolled citizen of the Eastern Shawnee Tribe and the Interim Chief Justice for the Pascua Yaqui Tribe Court of Appeals, and Torey Dolan, a citizen of the Choctaw Nation of Oklahoma and an Arizona State University Indian Legal Clinic Native Vote Fellow. They described the case as “an enormously important and significant decision for [the Muscogee Creek Nation] and all Indian nations.” While Miller and Dolan acknowledge that “complex and politically fraught jurisdictional and governance issues . . . are arising for the MCN, the United States, and Oklahoma,” Gov. Stitt’s criticism of the ruling is riddled with half-truths, exaggerations, and outright lies, all while obfuscating the reality that any real challenge McGirt poses to the people of Oklahoma is rooted in his own administration’s policies and reluctance to negotiate on equal ground with tribal governments.
That Stitt’s arguments were not bound by reality should not surprise anyone familiar with this case, as most of his talking points merely echo those made by the state of Oklahoma in front of the Supreme Court. Lisa Blatt, on behalf of the state, argued that affirming the existence of the Muscogee Creek reservation would mean freedom for “155 murderers, 113 rapists, and over 200 felons who committed crimes against children.” Setting aside the question of whether mass incarceration truly benefits society, investigations into these numbers have revealed them to be largely unsupported. Journalist and citizen of the Cherokee Nation Rebecca Nagle found that the statute of limitations on petitions for habeas relief created by AEDPA, the Antiterrorism and Effective Death Penalty Act, meant that less than 10 percent of serious offenders would even qualify for relief. In addition, as Nagle points out, the Oklahoma Department of Corrections’ 2019 claim that 1,887 Native Americans were incarcerated due to offenses committed on reservations is inaccurate. The Department of Corrections reached that number based on racial self-identification; questions of criminal jurisdiction instead hinge primarily on tribal membership, a political identity distinct from conceptualizations of “native blood.”
The confusion of these concepts is a constant among both the state of Oklahoma’s arguments against McGirt and media coverage of those arguments. Annie Gowen and Robert Barnes, writing an anti-McGirt column for the Washington Post, breathlessly repeat the state’s concern that the number of plaintiffs bringing challenges “could be even larger if plaintiffs not previously identified as Native Americans seek to vacate their convictions by claiming Native American heritage now.” It is not “heritage” alone that entitles someone to the protections and obligations of tribal membership. A plaintiff could not gain standing for relief based on the results of a DNA test.
As of August 12, 2021, fears that McGirt would flood the streets of Tulsa with hardened criminals were, for now, put to rest with Oklahoma Court of Criminal Appeals case State ex rel District Attorney v. Wallace, which held that McGirt would not be applied retroactively to past convictions. Whether this decision supports the state’s case for reversal by demonstrating the legal challenges of McGirt or works against the state’s case by assuaging one of its chief concerns is unclear. Regardless, it represents one of Miller and Dolan’s theorized avenues by which the state of Oklahoma and the tribes therein might settle the questions surrounding the McGirt ruling: “piecemeal through case-by-case litigation . . . [entailing] decades upon decades of lawsuits and millions upon millions in legal fees.”
Turning now to matters of civil jurisdiction, the state has made much noise regarding the effects of McGirt on tax revenue (per Oklahoma Tax Comm’n v. Chickasaw Nation, states generally do not have the authority to tax tribal members living on their reservation). Stitt has claimed that as of April as many as 3,000 protests have been filed against the imposition of state taxes, and the Oklahoma Tax Commission estimates the McGirt decision could cost the state roughly 200 million dollars in revenue annually. However, as The Oklahoman points out, quoting Tax Commission Executive Director Jay Doyle, the vast majority of the supposed 3,000 protests were merely regular filings from tribal members who had already qualified for exemption, and Elizabeth Field, Deputy Chief Counsel for the Oklahoma Tax Commission, estimated the number of new protests to be closer to 10. While the McGirt decision, should it be applied to civil issues, would almost certainly reduce the revenue of the state of Oklahoma by increasing the number of tribal citizens who qualify for state tax exemption, it is difficult to take the Oklahoma Tax Commission’s claims at face value, for much the same reason why doubt should be cast on the state’s claims of criminal woe. The state’s consistent confusion between tribal membership and native american heritage is even more significant here. In civil matters, only tribal members living on their own tribe’s reservation are exempt from state jurisdiction and taxes; as an example, a Cherokee citizen living in the Muscogee Creek reservation would not be exempt. (see Montana v. U.S. and Washington v. Confederated Tribes).
In addition to feeling healthy skepticism to state-provided statistics on the issue, it is difficult to find much sympathy for the state of Oklahoma as it bemoans a shortage of tax revenue. On May 21, 2021, Gov. Stitt signed into law House Bills 2960, 2962, and 2963, reducing both income and corporate tax rates in Oklahoma. Decreases in tax rates in Oklahoma are effectively permanent by virtue of Article 5 § 33 (D) of the Oklahoma Constitution, which requires any bill for raising revenue to pass with a three-quarters supermajority in both houses. A government that complains about revenue loss while permanently lowering taxes certainly invites suspicion as to what, precisely, they are complaining about.
The answer to the question of why, exactly, Kevin Stitt and his state’s government are so vehemently opposed to McGirt might be found in the history of his administration’s dealings with tribes. Since his inauguration, Gov. Stitt has aggressively engaged tribes to renegotiate their gaming compacts in order to create more favorable deals for the state, arguing that the compacts as they exist were an unfair deal compared to those enjoyed by other states. Matt Morgan, chairman of the Oklahoma Indian Gaming Association, disputed both Stitt’s claim that tribes share only four to six percent of revenue, stating instead that the maximum rate is actually roughly twice that at ten percent, and that most states shared more favorable deals, clarifying that only the three states Gov. Stitt cites— Connecticut, New York, and Florida— enjoy greater revenue sharing than Oklahoma. Stitt believed he could force the tribes to the negotiating table by claiming that the compacts would expire in 2019; the tribes contended that the deals were actually set to automatically renew. On February 27, 2020, the Western District of Oklahoma sided with the tribes, affirming that the agreements had automatically renewed for another 15-year period. At this, Gov. Stitt admitted defeat and declined to appeal, while releasing a press release expressing confidence that “the people of Oklahoma will demand a fair deal that benefits all 4 million Oklahomans.”
Gov. Stitt’s approach to gaming compacts is instructive when trying to understand why, exactly, his administration is so utterly determined to present McGirt to the public as an existential threat to the state of Oklahoma. Gov. Stitt’s administration came into the gaming compact negotiation expecting to be able to play hardball and win; instead, they were frustrated to find the tribes acting not as subordinates, but as equals. Accepting the tribes as equals and respecting their authority to govern would be the first step towards a post-McGirt world that all parties would find amenable; as Miller and Dolan recognize, the easiest path available to the state would be “for the Muscogee (Creek) Nation, Oklahoma, and the United States to take cooperative and proactive steps to anticipate issues and to consult and negotiate agreements,” saving all parties involved from the “decades upon decades of lawsuits and millions upon millions in legal fees” that would result from continued litigation.
The ongoing COVID-19 pandemic has provided the tribes with an opportunity to demonstrate their capacity to be not just partners, but leaders in the governance of Oklahoma. While Gov. Stitt repeatedly refused to institute a state-wide mask mandate, posted pictures of himself in packed restaurants to social media, and purchased 2 million dollars’ worth of anti-malaria drug hydroxychloroquine, the tribal governments of Oklahoma led the way in vaccine distribution.
Despite this disparity in leadership, the Stitt administration has found allies at powerful national newspapers of record. As previously cited, the Washington Post and the Wall Street Journal have both run anti-McGirt pieces reciting the state’s propaganda lines in the past four months. If this propaganda effort is successful, the state may be able to persuade the Supreme Court to reverse itself less than two years after its original decision, on an action brought solely to capitalize on replacement of the late Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett. Such a reversal would stain the court’s legitimacy, betray the hard work of the tribal and federal governments to create a post-McGirt future, and further damage the relationship between the state and tribal governments of Oklahoma, possibly irreparably.
Justice Gorsuch began his opinion in McGirt with the powerful phrase: “On the far end of the Trail of Tears was a promise.” The state of Oklahoma, given its way, would shirk its obligations.They have sought sympathy in their cause by spreading lies about the unreasonableness of those obligations. These lies have percolated to the highest spheres of American media, and unless countered could cause all Oklahomans to suffer.
Ryan (he/him) is a 2018 graduate of the University of Oklahoma with a B.A. in history and a 2L at the Sandra Day O’Connor College of Law at Arizona State University. His goal after graduation is to work as a public defender. His legal interests include critiques of American jurisprudence, prison abolition, and reinforcing indigenous sovereignty. In his spare time, he enjoys hiking, playing musical instruments, and playing, watching, and discussing basketball.