Since the U.S. Supreme Court ruled that Congress did not dissolve the Creek Nation Reservation in the McGirt v. Oklahoma case, the future of inter-government relations with the Five Tribes has been a concern for many. Legal scholars Dylan R. Hedden-Nicely and Monte Mills believe it is an opportunity, not a reason for concern.
The McGirt decision’s immediate impact was on the state’s criminal justice system. Cases normally pursued by a District Attorney within the Creek Nation boundary are now being diverted to the federal and tribal court systems.
Currently, state and tribal officials are examining what the impact McGirt possibly would have on civil law and taxation.
Hedden-Nicely and Mills note that previous case law will help light the way forward.
“By virtue of a string of Supreme Court decisions that largely defer to state interests and muddy the analysis of civil jurisdiction within Indian Country, the practical impact of the change is likely minimal. Instead, just as before, the dividing lines for civil authority within Indian Country continue to be tribal membership and Indian lands,” wrote the authors.
They quote the Nevada v. Hicks case where the Court ruled “state sovereignty does not end at a reservation’s border.” However, barriers do remain because of the preemption of state authority by federal law or where state authority would infringe upon tribal sovereignty.
The authors say previous case law requires each case that arises on Indian land will have to be considered on a case-by-case approach. There is Congressional law, like the Stigler Act, that does give the state some power within a reservation. That law allows taxes to be levied by the state of Oklahoma on oil and gas production on Indian lands.
The paper also points out earlier inter-governmental agreements between the Tribes and state and local authorities, and that will most likely be the way Oklahoma and the Tribes will hash out any civil legal issues which may arise from the McGirt decision.
You can read the paper here.
