SCOTUS Will Not Overturn McGirt Decision

Friday, January 21st 2022, 9:21 pm

The US Supreme Court turned down the State of Oklahoma’s request to revisit the McGirt decision, giving tribes a victory that solidifies the previous ruling on sovereignty.

The McGirt decision determined Congress never disestablished the Muscogee Reservation, which resulted in several Oklahoma tribes gaining authority over criminal prosecution within their boundaries.

The Court did agree to take up one element requested by the state, agreeing to hear a case on whether a State has authority to prosecute non-Indians who commit crimes against Indians on reservation land.

The Court will hear arguments in April, with a decision likely in June.

Tribal and State leaders both called the split decision a victory, though the larger McGirt question, was a clear decision for the tribes.

The Muscogee Nation issued a statement that said, “It is great news for the Muscogee (Creek) Nation that the U.S. Supreme Court in its order today declined to consider overturning the McGirt ruling that affirms our reservation and sovereignty. The Muscogee (Creek) Nation will continue its vigorous engagement in the judicial process in support of our sovereignty and public safety.”

Cherokee Nation Chief Chuck Hoskin Jr. said, “The issue was whether the United States should go back on its word. Governor Stitt went to the Supreme Court begging them to make America go back on its promise to the Cherokees and other similarly situated tribes when it came to a treaty promise. The Supreme Court said we already decided that. We're not reviewing that. That's a great victory."

Oklahoma’s Attorney General John O’Connor had asked the court to consider overturning the McGirt case, but praised the decision to clarify a smaller part of it that will determined whether federal or state prosecutors handle certain cases.

"Narrowing the scope of this case will not alleviate all of McGirt’s harmful consequences in our State, but it would ensure that non-Indians who victimize Indians can be prosecuted under the same rules as perpetrators who victimize non-Indians,” said O’Connor. “More importantly, it will guarantee Indian victims the same protection and justice that all other Oklahomans enjoy. This is a step forward for the State of Oklahoma and is of paramount importance, given that the overwhelming majority of people who live in eastern Oklahoma are not of Indian heritage.”

The Cherokee Nation Attorney General, Sara Hill, said the decision would not impact tribal prosecutions.

“That's a question that will be of interest to Indian Country throughout the United States but doesn't really have anything to do with the reservations or any of the issues that we've talked about so much over the last year,” said Hill.

She predicted Oklahoma would continue to file appeals.

“I have a funny feeling there are lots of petitions still filed requesting lots of reviews of tribal sovereignty, but really I think the McGirt issue is behind us now. There are lots of ways that tribes and states might clash over issues, but the issue of whether or not the reservations exist has been decided," added Hill.

Tulsa District Attorney Steve Kunzweiler opposed the original ruling on McGirt, but was happy the Court would review and clarify how some prosecutions should be handled.

“Anything we can do to get the Supreme Court to re-examine that would be helpful, of course the flipside of that is they may double-down and say ‘We meant what we said in McGirt’," said Kunzweiler.