July 9th, 2020, changed the lives of many Native Americans living in Oklahoma – most of them just don't know it yet. On that day, the United States Supreme Court announced its highly anticipated decision on McGirt V. Oklahoma, which confirmed that neither a state nor a court could disestablish a reservation and affirmed that only an act of Congress may do so.
McGirt V. Oklahoma has been called many things, but one thing is for sure, it is a significant victory for Native Nations. In the beginning, McGirt only affected five tribes, but many others have begun making their case or are gearing up to do so in the future.
Native Nations from across the US are also looking at McGirt as a means to make their stand. Another recent case in Minnesota saw Milles Lac County attempting to diminish the Milles Lac Band of Ojibwe reservation. The State of Minnesota sided with the Milles Lac Band throwing the case out based on "lack of standing." Perhaps Minnesota was merely trying to prevent this case from heading to the Supreme Court as well, or maybe they did agree. In either case, Milles Lac County spent over 1 million dollars trying to disestablish the reservation to fail miserably in their pursuit.
So what is McGirt V. Oklahoma?
Jimcy McGirt, an enrolled member of the Seminole tribe, married and moved in with another Seminole in her Broken Arrow home shortly after being released from prison in 1991. Jimcy's new wife had a granddaughter that he would abuse almost daily when she was just four years old. McGirt's wife was complicit in that she would help cover up the crimes and went so far as to threaten her granddaughter to not speak on what was happening. McGirt's ritual eventually fell apart, and McGirt was arrested on November 4th, 1996, after turning himself in on an outstanding warrant. In June of 1997, McGirt was found guilty and sentenced to life in prison without the possibility of parole, plus two consecutive 500-year sentences. McGirt appealed this ruling because the crimes took place on Native American lands and therefore should have been heard in tribal courts.
McGirt had much of his case already built for him because of an earlier issue known as Sharp V. Murphy – a matter closely related that was heard in the 2018-2019 term and one that ended in a deadlock vote with the recusal of Justice Neil Gorsuch. Sharp V. Murphy argued that in 1907, when Congress admitted Oklahoma into the Union as the 46th State, they seemingly forgot to disestablish the reservations of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nations, which were established in 1866. These reservation boundaries consist of more than 19 million acres – nearly the entire eastern half of Oklahoma.
The unfortunate side effect of all of this is that the US Attorneys' office now faces an influx of old cases that it must re-try, and there are tiers in deciding which issues to focus on first. For now, crimes violent in nature seem to be the priority, but exceptions may be made.
Several tribes in Northeast Oklahoma are also currently dealing with the negative repercussions of McGirt. In March of 2021, an educational training course was hosted by Quapaw Nation that involved leaders from local Tribal Nations as well as local law enforcement and the Ottawa County District Attorney. While the Federal Government is operating under the assumption that all Tribal Nations in Northeast Oklahoma were disestablished, the Ottawa County DA is operating under the assumption that they weren't, causing a stall in the courts. For residents of Ottawa County, this has left some feeling unprotected, unrepresented, or a combination of both.
So how does this affect the Quapaw?
As it stood in the beginning, McGirt only changed how we view and handle the Major Crimes Act, which placed certain crimes under federal jurisdiction if committed by Native American's on Native lands. Many believe that it doesn't end there, though – most tribal leaders are in the process of preparing to fight their own battle in court.
As explained earlier, we are setting precedents – just as in the case of the Milles Lac Band, which was an excellent preview of boundary cases. State and local governments may start to realize that it is better to work with Tribal governments rather than spending millions of dollars fighting a lost cause.
In 2020, the Oklahoma Tax Commission (OTC) published a report stating what appeared to agree with McGirt applying to State and local taxes. In the report, the OTC estimates McGirt would reduce state income taxes by over $72 million a year and that tribal citizens would be eligible for tax refunds for the past three years totaling more than $218 million. The estimated total loss of State and local taxes was more than $132 million. Tribal Nations would also be entitled to creating their own tax but may not apply this tax to non-tribal citizens.
If (when) Quapaw Nation decides to make the push, all tribal members residing on the Quapaw Reservation and working for Quapaw Nation would assumedly enjoy tax relief in all future tax filings. Members would also be entitled to refunds from the State for the three years prior.
McGirt affects other areas, though, concerning the Quapaw Nation. The environmental clean-up of the Tar Creek Superfund site is one of those areas.
In a recent meeting with the EPA, Chairman Byrd had this to say;
"The definition of Indian Country is codified at 25 US 1151, which includes all lands within an Indian reservation under the jurisdiction of the United States. In light of the McGirt ruling, Indian country encompasses a large portion of Eastern Oklahoma, including the Quapaw Reservation. Following that decision, the State requested approval under Section 10211a of the Safe, Accountable, Flexible, Efficient Transportation Act. Specifically, the State requested authority to administer in some regions of Indian country its own environmental regulatory programs that the US Environmental Protection Agency previously approved outside of Indian Country. In other words, as a consequence of the McGirt ruling, the State wished to assert environmental regulatory authority within Indian Country on land that was formerly NOT considered Indian Country. The EPA is charged with approving the State's regulatory program upon determination whether it meets applicable requirements of the law, which it did so on October 1st, 2020, without first determining the actual impact of the McGirt decision. The EPA historically approved state regulatory authority on non-Indian Country land because it was not considered Indian Country under 25 US 1151. Now it is considered Indian Country, which should indicate to the EPA, a more thorough examination of the implications of the McGirt ruling was needed and is still needed today before it makes a determination like this."
"Our input is for the EPA to recognize our nation-to-nation relationship by withdrawing its approval of the request of the State in recognition of the federal-trust responsibility that tribal nations share with the United States. It is well within the authority of the EPA to make this decision. Quapaw Nation believes it should in the spirit of this shared relationship with a thorough assessment of the implications of this approval. The Tribal nations that have been impacted have only just resumed this degree of tribal sovereignty that has been dormant. This renewed effort of the Biden administration for further and more meaningful consultation should allow for tribal sovereignty to forge ahead to meet this challenging issue because tribal nations are well poised to administer their own regulatory scheme following the laws and regulations of the federal government. It is something we already do and will continue to do as good stewards of the environment and good partners in this relationship, as this is a responsibility we all share."
"The Quapaw Nation shares an even more unique relationship with our federal remediation projects occurring on both trust and fee land, a three-way partnership between us, the State, and the federal government. So we know a partnership can occur that provides and allows for processes among all parties involved."
"With that I thank each of you for your time, for your service to Indian Country, and for the opportunity to speak on this important matter today."