By: Janice Francis-Smith The Journal Record December 30, 2021 0
The U.S. Supreme Court comes together Friday to conference on what cases it will take up this session. Last fall, the state asked the court to take up a case that would open the door on a reconsideration of McGirt v. Oklahoma. (Photo by Ian Hutchinson via Unsplash)
Jan. 7 is the day Oklahoma officials have waited for: the day the U.S. Supreme Court comes together to conference on what cases it will take up this session. Last fall, the state asked the court to take up a case that would open the door on a reconsideration of McGirt v. Oklahoma.
The court may decline, or it may set a hearing date for Oklahoma v. Victor Manuel Castro-Huerta, another case involving a crime committed against a tribal citizen that was removed from state courts due to lack of jurisdiction.
The McGirt ruling, issued in July 2020, found that the Muscogee (Creek) Nation’s reservation was never properly dissolved, and thus the state lacks the authority to try cases involving tribal members that occur in an area previously unrecognized as native lands.
Getting another crack at McGirt would appear to be a long shot for state officials, but one the new Oklahoma attorney general, John O’Connor, is willing to try for. In its filings before the court, the state argues that the McGirt decision has caused “significant disruption” in the state that can only be remedied by a reversal of the court’s previous decision.
Disruption is not a legal argument, argued the Chickasaw Nation and Choctaw Nation of Oklahoma in their brief presented to the court.
“The State’s challenge to McGirt is political, not legal,” the tribes’ brief reads. “After the elected Attorney General left office, the state’s current governor calculated that the recent change in this Court’s composition could give the State another shot at McGirt, and he appointed a new Attorney General to further that strategy.”
O’Connor was appointed by Gov. Kevin Stitt in May 2021, following the resignation of former Attorney General Mike Hunter.
A legislative fix in the form of congressional action, as was advocated by the former attorney general, is not likely to help, the state argued in its petition. A measure introduced by U.S. Rep. Tom Cole in May appears to be stalled.
But the remedy proscribed in Cole’s legislation is for the state and the tribes to work together on a compact – a process that in recent years has proved elusive as the relationship between Stitt and tribal leaders has grown increasingly tense.
The tribes argue the state should not be able to bring the current case before the Supreme Court because the state had not shown an interest in the case before last fall, and thus has waived any right to bring a challenge.
The state argued that there would have been no point in challenging a case in state court, when the decision of the lower court was based on that of the Supreme Court.