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The Supreme Court Determined That Eastern Oklahoma is an Indian Reservation: What Does it Mean for You?

Today the United States Supreme Court held that the Muscogee (Creek) Nation’s Indian Reservation was never disestablished. Because the history of the Creek Nation parallels that of the Cherokee, Chickasaw, Choctaw, and Seminole Nations, the decision likely means that most of Eastern Oklahoma, including most of the City of Tulsa, is a present‑day Indian reservation. The decision could impact as many as 27 other tribes with historical reservations in Oklahoma, potentially extending Indian reservations in Oklahoma to the western border of the state.

This development may come as a surprise to many people in Oklahoma. As noted in the decision, the State of Oklahoma has always governed under the belief that Indian reservations within Oklahoma no longer existed. Indian tribes, too, have rarely governed as if their reservations are still intact. Generally, Oklahomans have lived their lives and operated their businesses as if the State of Oklahoma is not the former Indian territory where land was “reserved” for dozens of Indian tribes forced from their original homelands. 

But the Supreme Court decision in McGirt will change that. The Supreme Court has now recognized that Oklahoma is home to the most populous Indian reservation in the United States. The Court correctly noted that the full extent of the decision cannot be known, but some basic results can be readily discerned. 

How the decision could affect other Indian tribes

The Supreme Court's decision in McGirt is limited to the Muscogee (Creek) Nation reservation. What about other tribes in Oklahoma? Justice Gorsuch noted "[e]ach tribe's treaties must be considered on their own terms," but there is no doubt the McGirt decision will pave the way for other tribes to have their reservations recognized as still-existing. 

The analysis in the McGirt decision will likely apply to the Cherokee Nation, Chickasaw Nation, Choctaw Nation, and Seminole Nation, because the treaties and congressional acts applying to those tribes are the same or similar to those of the Muscogee (Creek) Nation.

Whether other tribes in Oklahoma still have a reservation will require an independent review of the tribe's treaties and congressional acts. The Supreme Court's decision did not change the law for determining whether reservations exist, so a reservation can still be disestablished by the text of a treaty or congressional act. However, the decision in McGirt reaffirms a strict interpretation of those acts, so tribes, especially those in Oklahoma, will have a stronger argument that their reservations still exist.   

Whether an Indian tribe has a present-day reservation is important because tribes retain certain inherent sovereign authority over their reservation lands. Generally speaking, Indian tribes have increased criminal, civil, regulatory, and tax jurisdiction within their reservations, which does not exist if the reservation has been disestablished. Tribes also receive additional federal statutory authority on their reservations, such as under those that relate to historical preservation and child welfare. Federal assistance may be available to tribes when activities occur on Indian reservations. As noted by Justice Gorsuch, "[s]ome may find developments like these unwelcome, but ... others may celebrate them." Whether the changes are celebrated or not, tribes will eventually find out whether their reservations still exist and need to be prepared.

How the decision could affect businesses in Oklahoma

If you are conducting business in Oklahoma, it is important to know if you are working on an Indian reservation. Indian-owned businesses or businesses working with tribes could be subject to tribal laws or tribal jurisdiction when conducting business in an Indian reservation. 

While tribal laws and tribal courts may be unfamiliar to many businesses, there are notable advantages to working in Indian country. For example, some businesses may qualify for federal funding or federal tax credits because of their work on an Indian reservation. Some tribes may even have more business-friendly regulations than those of the State. 

Tribal jurisdiction does not typically extend to non-Indian businesses, but there are exceptions, such as when a business consents to tribal jurisdiction. Some federal laws may have a different application on Indian reservations than outside of Indian reservations. Non-Indian businesses may qualify for federal benefits when operating on an Indian reservation. As a result, knowing whether you are conducting business on an Indian reservation is now essential when operating a business in Oklahoma. 

How the decision could affect individuals in Oklahoma

If you live in Oklahoma, you will want to know whether you are on an Indian reservation. If you are a tribal member and you are on an Indian reservation, you are likely subject to tribal and federal criminal laws, as opposed to state criminal laws. It means you may be charged by a tribal officer and convicted in a tribal court, as opposed to a state court. As noted by the dissent in McGirt, this is a change from Oklahoma's long historical practice of asserting jurisdiction over Indians in state court. 

Non-Indians will mostly be unaffected. Non-Indians are still subject to state criminal jurisdiction, even on Indian reservations. As noted above, one slight difference could be that if you are the victim of a crime committed by a tribal member on an Indian reservation, the offender may be arrested and charged by the tribe or federal government, as opposed to the state or municipal authorities. 

In practice, most tribes and local governments have cooperative agreements to better handle the confusing jurisdictional questions that exist when operating on or near Indian lands. These agreements will help minimize the changes created by the Supreme Court's McGirt decision. For example, cross-deputization agreements allow a police officer to act on behalf of the tribe, the State, and a municipality simultaneously, so officers can do their jobs without additional jurisdictional concerns. Another common example of a cooperative agreement is one that relates to taxation, such as with sales tax, tobacco sales, or motor fuel sales. There are many benefits to these arrangements, and we expect to see a lot more of them after the Supreme Court's decision in McGirt. 

As noted by the Supreme Court, it is not unheard of for significant non-Indian populations to live successfully in or near reservations today. Most non-Indian businesses and individuals are unlikely to be affected by the decision. Many of the changes from the Supreme Court's decision will be addressed through cooperative agreements between tribes and state and local governments. Some changes may be celebrated, some may be unwelcome, but most will only be different. 

—R. Daniel Carter

R. Daniel Carter, dcarter@cwlaw.com, is a member of the Muscogee (Creek) Nation and a partner at Conner & Winters LLP, in Tulsa, Oklahoma.