By Patrick B. McGuigan The Oklahoma City Sentinel Nov 30, 2021 Updated Nov 30, 2021
Oklahoma City – From the start, most reports (but not all) characterized the U.S. Supreme Court’s 5-4 decision reasserting reservation status for lands of the Muscogee Nation as significant.
For a time, stories on the case stressed its historic impact on criminal law, and that remains the bulk of focus in legal argument the wisdom of the precedent established in ‘McGirt v. Oklahoma.’
In the the 2020 case Justice Neil Gorsuch, generally designed a “conservative” jurist, joined the four members of the court then deemed “liberal” to craft a controversial new (or, advocates say “restored”) status for Creek (Muscogee) lands in eastern Oklahoma.
Just over a year after the issuance of Gorsuch’s majority opinion, its impact has steadily grown.
The traditional lands of the Cherokee, Chickasaw, Choctaw and Seminole nations have regained (or had restored) pre-statehood status.
Most recently, the much smaller Quapaw Nation based in northeast Oklahoma was afforded the same recognition. Nearly half of Oklahoma is now considered tribal reservation land for purposes of criminal law – and, increasingly, perhaps for other areas.
The state of Oklahoma wants the High Court – with new justices who might (or might not) be willing to revisit the case – to scale back the impact of McGirt.
By the end of this year, the justices might take up the case of ‘Oklahoma v. Victor Manuel Castro-Huerta.’
If the justices agree to hear full-scale arguments, the legal world will be watching closely for the result – along with local jurisdictions, businesses, and both tribal and non-tribal Oklahomans.
However, deliberations or debates on the case increasingly focus beyond matters of criminal law, to reach civil law matters, including taxation powers.
Ray Carter of the Center for Independent Journalism recently reported on a new emphasis among big tribe leaders in the area still designated as “Oklahoma.”
In a news story based on discussions at an October event sponsored by the Oklahoma Policy Institute, Carter noted that Chuck Hoskin, Jr., chief of the Cherokee Nation, asserted, “There’s nothing new about the law out there on the ability of a state to tax a member of a federally recognized tribe on a reservation.
“What’s new of course is the scope of the reservation (because) of the McGirt case. So, we can look to existing law and we can see that taxation doesn’t attach to individual Native Americans who live on reservations.”
As Carter summarized the matter, “The affected area [most of Eastern Oklahoma] is home to roughly 2 million people of which 21 percent are estimated to be American Indian. Members of federally recognized tribes have long been exempted from various forms of state taxation — if they live and work on tribal land. Prior to McGirt, that exemption covered only a small share of individuals working on much more geographically confined areas directly owned by Oklahoma tribal governments.
“But under McGirt most of eastern Oklahoma is now considered reservation land, regardless of current ownership, potentially expanding the tax exemption to many more individuals.”
As Chief Hoskin said and Carter reported, this could result in “revenue gaps” for the government of Oklahoma.”
In a recent exchange with The Oklahoma City Sentinel, an adviser to Oklahoma Governor Kevin Stitt reasserted the narrower but still dramatic view of McGirt’s impact.
Ryan Leonard, now serving as Stitt’s Special Counsel for Native American Affairs, said:
“The scope of the McGirt decision is expressly limited to federal major crimes. The State will continue to exercise its rightful jurisdiction within the McGirt-affected areas, including to collect taxes, which provide critical services that benefit all Oklahomans.”
According to his current biographical sketch, Leonard was hired by Stitt as “the lead negotiator for the state in the discussions with Oklahoma’s Native American tribes to address the foundational jurisdictional issues raised by the McGirt decision.”
In the course of the exchange with this reporter, Leonard pressed against the expansive interpretation of McGirt’s impact, while retaining his focus on the specific issues of criminal law.
Asked to focus on the tax debate, Leonard said:
“The position of some who argue McGirt calls into question the State’s ability to collect taxes, a fundamental function upon which the State’s very existence relies, is only further evidence of the unacceptable jurisdictional uncertainty created by the decision. It is incumbent upon all Oklahomans to pay their fair share, including when it comes to income and sales taxes.”