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Oklahoma’s “Chicken Little” Challenges to McGirt Fail

by | Jul 25, 2023 | Firm News

Chicken Little: one who warns of or predicts calamity especially without justification – Merriam Webster Dictionary (1895)

The definition of insanity is doing the same thing over and over again and expecting different results. – Benjamin Franklin or Albert Einstein or someone else

On July 9, 2020, while the world was in the midst of the pandemic, the Supreme Court of the United States released an opinion which had been the focus of Oklahoma and tribal attorneys for years: McGirt v. Oklahoma.[1] In a 5-4 decision, with Gorsuch writing for the majority, SCOTUS acknowledged that the Mvskoke Nation’s[2] reservation, as established by treaty, had never been disestablished. This decision led to the subsequent recognition of five other nations[3] having their reservations recognized as also still existing.[4]

This decision began with the 10th Circuit’s Murphy ruling. In Murphy v. Royal,[5] the 10th Circuit held that because the disestablishment of a reservation must be clear and express by congress, that the Mvskoke Nation’s reservation still existed. Because only Congress may abrogate treaties with the Indian nations, there must be a clear elimination or reduction to a reservation set aside for a nation. The 10th Circuit also held that the presumption was against disestablishment and that courts “do not lightly infer” that such an elimination has occurred.[6]

In response to this, the State engaged in what has been referred to as the “parade of horribles” and the “sky is falling” tactic with its oral arguments and briefing to SCOTUS. Murphy, however, never became the deciding case. Instead, SCOTUS granted cert on a similar case: McGirt v. Oklahoma. This allowed the Court to have a majority vote instead of a 4-4.[7]

In what a famously sharp opinion, Gorsuch held that no matter the length of time that has passed, a wrong cannot be validated by SCOTUS, regardless of the “parade” arguments by Oklahoma. “In any event, the magnitude of a legal wrong is no reason to perpetuate it.”[8] The decision recognizes that Oklahoma’s “dire warnings” were nothing more than just that. And, the ruling acknowledged that the State and several nations can and do work well together: “[I]t is unclear why pessimism should rule the day. With the passage of time, Oklahoma and its Tribes have proven they can work successfully together as partners. Already, the State has negotiated hundreds of intergovernmental agreements with tribes, including many with the Creek.” McGirt v. Oklahoma, 140 S. Ct. 2452, 2481, 207 L. Ed. 2d 985 (2020).

Since then, Oklahoma has applied for cert to SCOTUS numerous times. Finally, on January 24, 2022, SCOTUS granted cert to one of these attempts by Oklahoma. At the same time, SCOTUS denied cert on 31 cases by Oklahoma attempting to overturn McGirt. And, the case SCOTUS is reviewing presented two questions: (1) Whether a State has authority to prosecute non-Indians who commit crimes against Indians in Indian county; and (2) Whether McGirt v. Oklahoma should be overruled. SCOTUS granted Oklahoma’s petition as to the first question only, even though the State made more than 30 attempts to convince the Highest Court that the McGirt effects have been “calamitous and are worsening by the day.”

Unconvinced and channeling their inner Public Enemy,[9] the Court did not believe the hype and signaled its unwillingness to overturn itself and McGirt remains the law of the land.

[1] 140 S. Ct. 2452, 2480 (2020).

[2] Mvskoke, generally translated as “the people who have herbal medicine,” is commonly referred to as the Muskogee Nation and formerly known as the Muskogee (Creek) Nation.

[3] Because this article largely discusses a case involving the Mvskoke Nation, I use the term “nation” to generally describe the indigenous sovereigns rather than the more commonly used “tribe.” This is because, as recognized sovereigns who have the right to make their laws and be governed by them, I believe it is important to use their defining terms rather that the terms that do not do justice in defining the broad powers with which the indigenous people govern themselves. I do not wish to imply that the term “tribe” is offensive, but that terms used by each sovereign should be respected. For instance, Oklahoma has counties whereas Louisiana has parishes. I have never heard any say “which one is Norman in, Cleveland or Canadian Parish?”

[4] At the time of writing this, the Choctaw Nation, Chickasaw Nation, Cherokee Nation, Seminole Nation, and Quapaw Nation have all been recognized as having existing reservations following the McGirt decision. Google Maps shows the boundaries of all but the Quapaw Nation.

[5] 875 F.3d 896.

[6] Id. at 918.

[7] Gorsuch was on the 10th Circuit at the time Murphy was before it and recused himself from the Supreme Court’s review.

[8] McGirt v. Oklahoma, 140 S. Ct. 2452, 2480 (2020).

[9] A hip-hop group which began in 1985 and released the 1988 single “Don’t believe the hype.” I imagine Gorsuch rocking this track while writing his concluding paragraphs in McGirt.