The Civil Jurisdictional Landscape in Eastern Oklahoma Post McGirt v. Oklahoma

Abstract

The Supreme Court’s decision in McGirt v. Oklahoma has caused considerable unrest in Eastern Oklahoma as non-Indian individuals, businesses, and organizations try to determine how the decision might affect them. That unrest sets the stage for potential conflict and litigation over tribal and state authority in the region. But, while McGirt means that the rules governing civil jurisdiction on Indian reservations now apply to all lands within the Creek Reservation, it is cause for hope, not concern. First, as a practical matter, little is likely to change post-McGirt: tribal civil jurisdiction will mostly remain limited to “Indian lands” while the scope of state civil jurisdiction is also likely to remain largely static, although now subject to a somewhat more complicated and fact-specific inquiry. In addition, Congress has already resolved many potentially disputed jurisdictional issues and others have been avoided through successful intergovernmental cooperation between tribes and the State of Oklahoma. Ultimately, then, this overview of a post-McGirt world demonstrates that there is no reason “why pessimism should rule the day.” Rather than costly winner-take-all litigation or the uncertain outcomes of Congressional politics, the decision instead opens the door for a new era of innovative and effective tribal-state relations.