McGirt called threat to Oklahoma’s future
Published: August 17th, 2021
Ray Carter, Center for Independent Journalism
Ryan Leonard, special counsel for Native American affairs for Gov. Kevin Stitt, said the jurisdictional chaos created by the U.S. Supreme Court’s ruling in ‘McGirt v. Oklahoma’, which effectively decided that Indian reservations comprise most of eastern Oklahoma, represents a huge threat to long-term economic growth in the state.
“The problem is one of long-term jurisdictional certainty,” Leonard said. “If we have jurisdictional uncertainty in this state, how are we going to be able to attract business?”
Although the McGirt decision was narrowly tailored to prosecution of crimes that fall under the federal Major Crimes Act, the Muscogee, Choctaw, Chickasaw, Cherokee, and Seminole nations have sought to dramatically expand it, leading to jurisdictional questions on everything from taxes to regulation.
That creates an environment that could cause companies to give a wide berth to Oklahoma, Leonard said.
“If you’re a business on the east coast, you need to come to this part of the country, you’re looking at Fort Smith or Fort Worth or Tulsa and if you go to Tulsa or Muskogee or Durant, then you’re going to have to hire a team of lawyers to figure out who’s in control and you don’t know what happens when the next (tribal) chief or governor comes in,” Leonard said.
“That’s just a problem. It’s a problem for attracting capital to our state.”
In other states, tribal members living on reservations do not pay state income taxes or state sales taxes, Leonard said, citing Navajos in Arizona as an example. But he said the situation in Oklahoma is not comparable.
“That might be okay in Arizona because you’ve got an isolated portion of the land as the reservation. The state’s not providing services; it’s either the tribe or the federal government,” Leonard said.
“But what about in Oklahoma? We’re all mixed in together. You look statewide, we’ve got 10 percent of our state that’s Native American. In the eastern part of the state, it’s more like 15 percent.”
Leonard said the McGirt decision could result in one household paying taxes while a similarly situated neighbor next door does not, even though both households use state government services.
“We’re all driving on the same roads,” Leonard said. “Everybody’s going to the same schools.”
He said another challenge associated with McGirt is how to address people who are tribal members but whose heritage is predominately non-tribal.
“I’ve got a lot of Native American friends,” Leonard said. “A handful that are full-blood, but a whole bunch that are 1/64, 1/128, 1/264. So, are you telling me that if you’re 1/264 Cherokee and you’re living in Tulsa, you’re not paying state income taxes, you’re not contributing? It doesn’t work. These are really tough issues.”
Leonard, who discussed the McGirt case during a luncheon presentation before the Edmond Republican Women’s Club, said court challenges are the only avenue for addressing these problems.
The other two options — compacting with tribal governments and congressional action — have proven to not be viable, he said.
Since tribal governments want to expand the court’s ruling to apply to many areas not addressed in the McGirt ruling, engaging in discussions on those issues would dramatically reduce state authority that still exists in law today, Leonard said.
“The state can’t negotiate its sovereignty away, because that’s what we’re talking about,” Leonard said. “We’re ultimately talking about fundamental questions of sovereignty and who’s in charge?”
And Leonard said three of the five tribes refuse to discuss compacting in any form, while two tribes only want to discuss compacts regarding public safety without relinquishing claims in other areas.
Congressional action could resolve the issue, but Leonard said that’s not going to happen.
“It’s been made very clear in multiple trips to Washington, D.C., by our own members of our delegation, that Congress isn’t going to touch this with a 10-foot pole,” Leonard said.
“There are 574 federally recognized tribes nationally. They’ve got a lot of influence — their own tribal leaders have a lot of influence. The chances of Congress doing something substantively on this are not 10 percent or 15 percent or 20 percent. The chances are zero percent. And that’s been made abundantly clear.”
He noted the composition of the U.S. Supreme Court has changed since McGirt was handed down, but also stressed that the state is now in a position to make arguments that were not raised or could not have been raised prior to McGirt that may now lead the court to overturn the earlier ruling or narrow it considerably.
“The court created this situation,” Leonard said, “and the court’s going to have to sort it out.”
Note: This article, reprinted with permission, first appeared here:
https://www.ocpathink.org/post/mcgirt-called-threat-to-states-economic-future . Ray Carter is director of the Center for Independent Journalism.