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July 26, 2023 HUMAN RIGHTS

The Jurisdictional Landscape of Indian Country After the McGirt and Castro-Huerta Decisions

by Kirke Kickingbird

On July 9, 2020, the U.S. Supreme Court issued its opinion in McGirt v. Oklahoma, 591 U.S. ___, 140 S. Ct. 2452 (2020), a case involving state jurisdiction in Indian Country. Petitioner McGirt, an Indian, contended the sexual offenses that were the subject of his state conviction occurred in Indian Country—the reservation of the Muscogee (Creek) Nation—where the state had no jurisdiction.

Oklahoma asserted the crime was under state jurisdiction because there are no reservations in Oklahoma. Oklahoma argued that the Muscogee (Creek) Nation Reservation and its tribal government had been disestablished by multiple pieces of congressional legislation passed before and after 1906. 

By careful examination of this legislation, the Supreme Court concluded that despite these multiple pieces of legislation (beginning in the 1880s) directed at the Muscogee (Creek) Nation, which provided for the division of the reservation into homestead allotments to tribal members, none of the legislative language disestablished the reservation. 

After the decision was announced, Governor Kevin Stitt of Oklahoma denounced the result as an attack on Oklahoma sovereignty. Law professors who specialized in federal Indian law rushed to explain the huge impact the decision had made. If one judged by the volume of public statements, press releases, news articles, and law review articles, it was as though the Big One hit California and the entire state had dropped into the sea.

In actuality, the decision put Oklahoma on the same footing as the other 49 states. Congress provided the federal government exclusive authority to prosecute crimes that occur in Indian Country when committed by or against Indians in 1885, Major Crimes Act (MCA), 18 U.S.C. § 1153. Contrary to the “chicken little” theories of those who opposed and those who supported the decision, the sky was not falling.

In McGirt v. Oklahoma, the Court affirmed the existence of the Muscogee Nation Reservation in eastern Oklahoma for criminal jurisdiction purposes.

In McGirt v. Oklahoma, the Court affirmed the existence of the Muscogee Nation Reservation in eastern Oklahoma for criminal jurisdiction purposes.


The novel aspect of McGirt was the studied examination of the legislation that brought about allotment. The wording in the statutes that provided for allotment of tribal lands did not disestablish the Muscogee (Creek) Nation Reservation. See Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017) for a review of the allotment legislation and the general reference work F. Cohen, Handbook of Federal Indian Law (2012).

The term “Indian Country” traces its heritage back to the Royal Proclamation of 1763 issued by the British Crown after the French and Indian War (1754–1763). The Royal Proclamation defined Indian Country (essentially everything but the 13 colonies) and put tribal relations and land purchases in the hands of the central government, the Crown. The United States of America adopted this central control policy by placing Indian affairs in the hands of the federal government under Article I, Section 3 of the U.S. Constitution.

Two years after the Declaration of Independence, the young United States government needed to prove its legitimacy as a government. They chose to do this by seeking acknowledgment from two venerable and long-established governments. This was accomplished by two treaties in 1778—one with France and the other with the Delaware Nation.

American growth and expansion resulted in 400 treaties and agreements with tribal governments, largely moving tribes from their original homelands or reducing the size of the lands the tribes reserved for their own use, thus the term “reservation” or Indian Country. These treaties and the federal statutes to carry out the treaties are based on the political status, not racial status, of Indian nations under the U.S. Constitution. 

Under federal law, Indian Country is defined as an Indian reservation, trust, or restricted allotments of individual Indians and dependent Indian communities, 18 U.S.C. § 1151. Generally speaking, only tribal governments and/or the federal government have jurisdiction in Indian Country to the exclusion of the states. The federal Major Crimes Act provides that only the federal government can prosecute certain named Major Crimes in Indian Country when committed by or against an Indian. The legal title of Indian Country is with the federal government, which holds the land in trust for the tribes or tribal members.

In the 1880s, the new policy goal of non-Indians to “benefit” Indians was to do away with tribal governments, break up the reservations into homestead allotments, and turn the Indians into farmers. The lands not divided into allotments among tribal members were declared open to white settlement. Two federal territories, Oklahoma Territory and Indian Territory, were to be merged, not into an Indian state as the tribes proposed, but into a new state of the Union controlled by non-Indians and called Oklahoma. The tribes objected and actively opposed these goals. 

Oklahoma statehood came in 1907, and with it came the presumption that the dismantling of tribal governments and tribal reservations had succeeded. All the tribal objections were smothered by the “bureaucratic imperialism” of the Department of the Interior and the Bureau of Indian Affairs, a phrase coined in Harjo v. Kleppe, 420 F. Supp. 1110 (D.D.C. 1976).

In the seven decades following statehood, the treaty lands of Oklahoma tribes were described as “former reservations,” and the popular notion was that any trust lands the tribes owned or trust allotments tribal members owned were not subject to federal or tribal jurisdiction but to state jurisdiction, despite multiple treaties and federal legislation confirming tribal jurisdiction or precluding state jurisdiction. Overlooked was the Oklahoma Constitution provision which declared that lands held by any Indian tribe or nation, “shall be and remain subject to the jurisdiction, disposal and control of the United States.” Article 1, Section 3, Oklahoma Constitution.

A massive 1952 Congressional Report of 1,594 pages from the House Committee on Indian Affairs characterized the tribal properties in Oklahoma as reservations and cautioned that although the state exercised jurisdiction over Indian Country, the practice was subject to court attack “due to absence of congressional authority. . . .” H.R. Rep. No. 2503, 82d Cong., 2 Sess. 834 at 109 (1952).

The presumption that the Curtis Act of 1898 disestablished the governments of the Five Tribes (Creek, Cherokee, Choctaw, Chickasaw, and Seminole) began to crumble with the 1976 decision in Harjo v. Kleppe. Tribal member Alan Harjo had filed suit to enforce the Muscogee (Creek) Nation treaty guarantee of self-government, which Department of the Interior bureaucrats opposed. The Circuit Court noted that a later act, the Five Tribes Act of 1906, had “continued the tribal existence and tribal governments of the Five Tribes in full force and effect for all purposes authorized by law.” Harjo won. The popular wisdom interpreting the Curtis Act and related legislation affecting the Five Tribes began to be interpreted according to statutory language. It was a novel concept in Oklahoma.

In 1979, two Oklahoma cases, Oklahoma v. Littlechief, 573 P.2d 263, and C.M.G. v. Oklahoma, 594 P.2d, determined that a trust allotment was Indian Country and that the Chilocco Indian school property was a dependent Indian community. A decade later in 1987 in a tax dispute by the Oklahoma Tax Commission, the 10th Circuit made a determination that the Muscogee (Creek) Nation lands on which the gaming facility was operated were Indian Country and retained “reservation status.” Indian Country, U.S.A. v. Okla. Tax Comm., 829 F.2d 967, 976 (10th Cir. 1987).

 Six years later, another jurisdictional dispute was generated by the Oklahoma Tax Commission, which said Oklahoma could tax an Indian trust allotment because it wasn’t called a reservation. The U.S. Supreme Court with Justice Sandra O’Connor writing for the court stated, “we presume against a state’s having the jurisdiction to tax within the Indian country, whether the particular territory consists of a formal and informal reservation, allotted lands, or dependent Indian communities.” Oklahoma Tax Comm’n v. Sac and Fox Nation, 113 S. Ct. 1985, 1991 (1993).

Because these court decisions recognized the limits of state jurisdiction, the state of Oklahoma and the federally recognized tribes had worked out law enforcement, motor fuel taxation, and gaming arrangements through over 600 compacts and agreements between 1990 and 2018. In 2019, this decades-long effort to harness tribal and state economic forces, and the tribal-state cooperation it represented, was challenged when Governor Stitt took office. In July 2019, Governor Stitt announced the Tribal State Class III (casino-style) Gaming Compacts would terminate in December 2019. The tribes contended the Gaming Compacts automatically renewed in 2020. The federal District Court of Western Oklahoma agreed with the tribes that the Gaming Compacts automatically renewed in 2020. Cherokee Nation v. Stitt, 475 F. Supp. 3d 1277 (W.D. Okla. 2020).

After this loss, the rhetoric from the governor against Oklahoma Tribes became even more heated following the July 2020 U.S. Supreme Court decision in McGirt v. Oklahoma. In that case, as has been widely publicized, the Supreme Court affirmed the existence of the Muscogee (Creek) Nation Reservation in eastern Oklahoma for criminal jurisdiction purposes. Incorporating the Supreme Court’s argument there, and to the dismay of certain Oklahoma politicians, Oklahoma courts have since affirmed at least nine other tribes’ reservations: the Cherokee Nation, the Choctaw Nation, the Chickasaw Nation, the Seminole Nation, the Miami Tribe, the Ottawa Tribe, the Peoria Tribe, the Wyandotte Nation, and the Quapaw Tribe.

The U.S. Supreme Court again weighed in on jurisdictional issues between Oklahoma and its tribes in June 2022 in Oklahoma v. Castro-Huerta, 597 U.S. ___, 2022, holding that concurrent state and federal jurisdiction exists over criminal prosecutions in Indian Country when a non-Indian commits a crime against an Indian. Justice Brett Kavanaugh’s opinion noted that, in the 1830s, the federal government treated Indian Country as separate from state territory. (See Worcester v. Georgia, 6 Pet. 515.) But that view has long since been abandoned. He set a new “default” reversing the last 200 years of Indian law, “the default is that States have criminal jurisdiction in Indian country unless that jurisdiction is preempted.” Tribes immediately saw that this would lead Oklahoma to contend that state jurisdiction also included civil matters. The McGirt and Castro-Huerta decisions, coupled with the desire of certain Oklahoma state officials to assert state dominance over tribes, create the potential for a new round of tribal-state disputes to permeate the Oklahoma Indian relationship.

An April 25, 2023, decision of the Oklahoma Supreme Court indicates tribal-state concern about future conflict is well founded. In the Matter of S. J. W., 2023 OK 49, was an Indian Child Welfare Act (ICWA) case. This federal law provides tribes “shall have jurisdiction exclusive to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe . . . ” The child in question was Muscogee (Creek) residing within the Chickasaw Reservation. The Oklahoma Supreme Court decided the Chickasaw Nation did not have jurisdiction, much less exclusive jurisdiction, per the federal statute because the child was not Chickasaw. The court determined that one of the reasons Oklahoma courts had concurrent jurisdiction with the Muscogee (Creek) Nation over this Indian child is that Castro-Huerta said that Oklahoma had jurisdiction in Indian Country unless preempted, which the ICWA did not do. Castro-Huerta is being stretched beyond criminal jurisdiction.


The post-McGirt decision’s affirmance of the continued existence of certain Indian reservations in Oklahoma, coupled with the Castro-Huerta decision’s allowance of concurrent state criminal jurisdiction over non-Indians in Indian Country, has led to frequent public outcries from certain state government officials, who have employed a notable amount of misinformation. Against claims that a post-McGirt Oklahoma will turn into a lawless dystopia, an argument that was a contributory factor in the Castro-Huerta decision, it is important to recognize that Indian jurisdiction in Oklahoma, and throughout the United States, has been circumscribed by treaties, federal laws, layers of federal regulations, and U.S. Supreme Court decisions from the beginning of the tribal government-U.S. relationship. The objections to tribal jurisdictional authority seem to arise from a fear that Indians will have control of Indian Country. The state of Oklahoma and tribal governments have been able to find ways to work together in a cooperative fashion that benefits both sides. The 600 compacts and agreements between Oklahoma and the tribes held in the Oklahoma Secretary of State’s office bear witness to pragmatic effective government. A goal of constant conflict and one government having complete and total control does not serve the interests of tribal or state citizens. The decisions of McGirt and Castro-Huerta can provide a reason to reapply principles of cooperation between governments or provide a means to continue litigation. It was a continual financially costly conflict that led to the decisions in the 1990s to pursue compacts of cooperation. Federal laws and regulations will continue to apply to Oklahoma as they do to all states. While there may be additional litigation to sort out questions arising from McGirt and Castro-Huerta, or even federal legislation, the tribal and state goal should be an exploration of areas and means of cooperation by which the governments involved can benefit their citizens. 

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Kirke Kickingbird

Of Counsel at Hobbs, Straus, Dean & Walker

Kirke Kickingbird is a member of the Kiowa Tribe and has served as Of Counsel at Hobbs, Straus, Dean & Walker, LLP in Oklahoma City since 2000. He was director of the Native American Legal Resource Center at Oklahoma City University School of Law from 1988–2000