Beware of celebrating Supreme Court’s latest McGirt decision too soon

Indian affairs lawyers are wary that high court will limit tribal sovereignty beyond Oklahoma.

U.S. Supreme Court (by Rob Capriccioso)

WASHINGTON – Tribal citizens, including some in the Native press, are heralding the U.S. Supreme Court’s decision on Jan. 21 to block over 30 state challenges to the high court’s tribally-friendly McGirt decision. 

That 2020 ruling in effect strengthened tribal sovereignty by granting tribes in the eastern portion of Oklahoma the ability to oversee large swaths of their own criminal jurisdiction matters. It found that Natives who commit crimes on reservations cannot be prosecuted by state or local law enforcement. It also crucially ruled that five tribal reservations had never been disestablished, due to their rights under an 1866 tribal-federal treaty. A sixth tribe has since gained that status.

State officials hate the decision, saying it takes away their authority; that it has allowed the federal government to cede more control to tribes on issues beyond criminal jurisdiction; and that lawlessness has since resulted in areas of the Sooner State.

Oklahoma’s Republican Gov. Kevin Stitt, himself a citizen of the Cherokee Nation, has cheered the state-friendly suits along, and he went so far as to say on MLK Jr. Day this month that Martin Luther King Jr. would have been against the ruling on race-based grounds. Eye rolls and mockery ensued from tribal citizens nationwide who are quite happy with McGirt and who say it is working – warts and all. Many of them are also calling for increased federal resources to help carry out duties that they had wrongly not been responsible for before the ruling.

That the Supreme Court blocked an abundance of the state’s challenges from going forward was welcome news to many American Indians. “US Supreme Court Will Not Consider Overturning McGirt Decision,” Native News Online declared in a recent headline. But beyond a semicolon, the publication added important words that provided some curious context: “Will Rule on Scope of the Landmark Ruling.”

If the highest court in the land “will rule” on the “scope” of the original ruling, it could indeed limit the ruling’s intent and meaning significantly, Indian affairs lawyers are noting. Thus, the court may not “overturn” the ruling, but it could significantly limit it to the point of harming general tribal sovereignty over criminal jurisdiction and even other issues. A key point here is that it could take such actions beyond Oklahoma tribes, which would be a major limitation, Indian legal scholars note, since the vast majority of tribes are not in that state.