by Kim Pogue Jenkins, Esq.
Baer & Timberlake, P.C.
USFN Member (OK)

Editor’s note: Kim Pogue Jenkins was recently admitted to the Muscogee (Creek) Nation Bar.

In what has been described as a landmark decision in Indian Law, the Supreme Court in McGirt v. Oklahoma, 591 U.S. __ (2020) held that the Muscogee (Creek) Nation Reservation was never disestablished, thereby making all lands within the boundaries of the Reservation “Indian Country.” Indian Country is defined in 18 U.S.C. §1151(a) as “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent…”. Prior to this decision, only tribal, trust or restricted fee land was considered Indian Country in Oklahoma. As a result of McGirt, all land located within the boundaries of the Muscogee (Creek) Nation is now Indian Country. While the holding in McGirt pertains only to criminal jurisdiction within the Muscogee (Creek) Nation, the effects of the decision necessarily reach beyond that narrow scope.

Fee simple ownership of real property within the Reservation boundaries will not be affected by the decision (see Troy A. Eid, “McGirt v Oklahoma: Understanding What the Supreme Court’s Native American Treaty Rights Decision Is and Is Not,” National Law Review). However, this decision provides homeowners, mortgage lenders, and foreclosure firms with more questions than answers, such as:

-          Must suit be commenced in Tribal Court when the fee simple land is owned by a Tribal Member? See Williams v. Lee, 358 U.S. 217 (1959).

-        Does the Tribal Court have jurisdiction over a suit on fee simple land when the landowner is not a tribal member? See Montana v. United States, 450 U.S. 544 (1981), which provides for Tribal authority over non-members in two circumstances. First, a “tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Second, a tribe may “exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”).

-        What effect will this decision have on taxation? See Atkinson Trading Co. Inc. v. Shirley, 532 U.S. 645 (2001); and Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114 (1993).

 

-        To what extent will the Tribes have authority to regulate the use of land owned by non-members within the Reservation? See Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989).

Oklahoma City University School of Law Professor Dr. C. Blue Clark calls the ruling “the guarantee of permanent employment for attorneys” decision. Seeking answers to these and many other questions will likely involve years of litigation, as well as possible clarification or amendments from the U.S. Congress. Congress has plenary power to amend the Court’s decision in McGirt, or to disestablish the reservation in its entirety. Justice Gorsuch indicated as much when he wrote, “And, of course, should agreement prove elusive, Congress remains free to supplement its statutory directions about the land in question at any time. It has no shortage of tools at its disposal.”

For an example of how Congress has “corrected” a Supreme Court decision in Indian Law, see Duro vs. Reina, 495 U.S. 676 (1990); U.S. vs. Lara, 541 U.S. 193 (2004); and 25 U.S.C. §1301(2). In Duro, the Court held that a Tribal Court could not exercise jurisdiction over a non-member Indian. Congress then amended the Indian Civil Rights Act to provide that a Tribe could exercise jurisdiction over any Indian, and the Court upheld the “Duro Fix” in Lara.

While the holding in McGirt pertains only to criminal jurisdiction within the Muscogee (Creek) Nation, the decision is already impacting cases in other areas of Oklahoma, as well as a case in Wisconsin. In State of Oklahoma vs. Coker Dean Barker, CF-2019-92, the District Court of Seminole County held that under McGirt, the Seminole Nation Reservation remains intact. It seems likely that similar decisions will be reached in the Cherokee, Chickasaw, and Choctaw Nations, at the very least, meaning most of the eastern half of Oklahoma will be Indian Country. There is currently a case pending in Craig County, Oklahoma, wherein the Cherokee Nation has asserted that its reservation is intact, and a case in McClain County where the Chickasaw Nation is expected to do the same. The Seventh Circuit Court of Appeals has also cited McGirt in Oneida Nation v. Village of Hobart, 968 F.3d 664 (2020), finding that the Oneida Reservation remained intact and undiminished.

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Fall 2020 USFN Report