The Supreme Court Has Another Tribal Sovereignty Test on Its Hands
Six years ago, the Supreme Court held that nearly half of the state of Oklahoma was still legally considered Indian country. State officials have gone to great lengths to refuse to apply the court’s landmark decision in McGirt v. Oklahoma. Now the Supreme Court faces another crucial test of whether it will uphold tribal sovereignty that had been unjustly denied for more than a century.
The petition in Stroble v. Oklahoma comes from Alicia Stroble, an enrolled member of the Muscogee (Creek) Nation who works for the tribal government on tribal land. In 2019, she filed tax returns with the state that argued she was exempt from state income taxes because of her tribal membership and employment. Auditors from the state Tax Commission denied her protest, prompting her to appeal through the commission’s internal processes.
Generally speaking, states cannot tax tribal governments or members who live in Indian Country—the formal legal term for tribal reservations in all their various forms—without permission from Congress. (Please do not email me about all of the non-relevant exceptions.) The Supreme Court held in a 1993 decision, for example, that Oklahoma’s Tax Commission could not levy income taxes or motor vehicle registration taxes against members of the Sac and Fox Nation who lived on its reservation without Congress’s “explicit authorization.”
At first, a state administrative law judge agreed with Stroble’s argument. Then the Oklahoma Tax Commission exercised its final administrative review of the matter. It conceded that Stroble was indeed an enrolled member, that she worked for the tribal government, and that she did so on Creek reservation land. Nonetheless, they rejected her claim.
How can this be? After all, it was six years ago that the Supreme Court held in McGirt v. Oklahoma that the Muscogee (Creek) Nation’s reservation had never been disestablished by Congress and still legally existed, even though Oklahoma had acted otherwise for roughly a century. (Oklahoma courts later applied the same reasoning to other major tribal reservations in the state, covering roughly 43 percent of the state.)
Oklahoma’s tax code is also fairly clear on the matter. An enrolled member of a federally recognized tribe is exempt from Oklahoma’s personal income tax, the law says, when the member is “living within ‘Indian Country’ under the jurisdiction of the tribe to which the member belongs” and “the income is earned from sources within ‘Indian Country’ under the jurisdiction of the tribe to which the member belongs.”
To get around this, the commission did two things. First, it concluded that Stroble’s residence wasn’t part of the reservation because it didn’t meet the commission’s regulatory definition of Indian Country. The commission described it as “unrestricted, non-trust, private fee land,” which is a complicated way of saying it isn’t owned by the Muscogee (Creek) Nation itself or by the federal government on the tribe’s behalf. (Stroble argued, citing McGirt and federal law, that this status isn’t relevant.)
Second, and perhaps more importantly, the commission went out of its way to refuse to apply McGirt to state taxation laws. The administrative law judge who initially reviewed Stroble’s case had concluded that “the importance of the McGirt decision to the instant matter is the Court’s analysis of whether Congress disestablished or diminished the Creek reservation.”
The commission’s response was to claim that the judge had “completely disregarded the Court’s express limitation of McGirt to the Major Crimes Act,” which was the law at issue in the case. “To date, the U.S. Supreme Court has not expanded the scope of McGirt to state taxation, nor has Congress or the State Legislature made any changes to Oklahoma tax laws that would exempt the McGirt defined historical reservation boundaries from state taxation,” the commission argued.
This claim is hard to square with McGirt itself. In that case, the defendant was an enrolled member of the Seminole Nation of Oklahoma who had committed multiple felonies against other tribal citizens on the Creek reservation. States typically prosecute felony offenses within their borders. In the nineteenth century, however, Congress enacted the Major Crimes Act to give federal prosecutors the power to prosecute certain felonies committed between tribal members in Indian Country.
During his appeals process, McGirt argued that his state convictions were invalid because the federal government, not Oklahoma, had jurisdiction over his crimes. The state of Oklahoma countered that the Creek reservation on which McGirt had committed the offenses was not Indian Country because Congress had implicitly disestablished the Creek reservation around the time that Oklahoma became a state in the early twentieth century.
McGirt responded that, under Supreme Court precedent, Congress must explicitly disestablish a reservation for it to be dissolved. In an earlier case known as Royal v. Murphy, a death-row appellate lawyer had made a similar argument—that the Creek reservation still legally existed—to argue that her client couldn’t be put to death by Oklahoma on jurisdictional grounds.
After the Tenth Circuit Court of Appeals ruled in that case that the Creek reservation still existed in 2017, Oklahoma asked the Supreme Court to step in. The justices held oral arguments in Murphy, then deferred the decision to the 2019–2020 term and heard the McGirt case instead. The Supreme Court does not explain itself when it performs these kinds of maneuvers. One likely explanation is that the court was initially deadlocked in a 4–4 decision because Justice Neil Gorsuch, a former Tenth Circuit judge who hadn’t directly participated in the case, had recused himself from Murphy. McGirt’s state court case posed no such problems.
In McGirt, Gorsuch led a 5–4 majority to affirm that the Creek reservation still existed despite decades of Oklahoma’s infringement upon it. Though Gorsuch’s opinion was rooted in history and precedent, it was fundamentally about right and wrong. “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,” he wrote, joined by the court’s four liberal members at the time. “To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”
The decision had profound implications for Oklahoma. Since Congress had not explicitly disestablished the reservations of the rest of the Five Civilized Tribes in the state, either, the Supreme Court had effectively recognized half of the state’s territory as Indian Country, with all the governance changes that come with it. Gorsuch had indicated in the McGirt opinion that the court had only decided the Major Crimes Act question, but the implications obviously went far beyond criminal convictions.
The state of Oklahoma, Gorsuch wrote in 2020, “worries that our decision will have significant consequences for civil and regulatory law. The only question before us, however, concerns the statutory definition of ‘Indian country’ as it applies in federal criminal law under the [Major Crimes Act], and often nothing requires other civil statutes or regulations to rely on definitions found in the criminal law.”
This paragraph can be read a few ways. For one thing, it was not part of the decision’s reasoning and is therefore not binding on lower courts. The Supreme Court also typically only decides specific questions in specific cases. Since the parties had only briefed the justices on the MCA and its application, it would have been inappropriate and unnecessary to describe how any other federal law should operate now.
At the same time, the answers to many of those other questions should have been obvious. The Supreme Court reached its conclusion in McGirt by holding that Congress had never formally disestablished the Creek reservation and that it still legally existed, even though Oklahoma had acted otherwise for the past century. From there, the court then concluded that the Creek reservation still counted as “Indian country” for MCA purposes. To pretend that the court was merely deciding some narrow MCA-related technicality is to fundamentally misread the decision.
That brings us back to Stroble’s case. After losing before the state Tax Commission, Stroble appealed its decision to Oklahoma’s state Supreme Court. The nine-justice court took its time on the matter: It agreed to hear her appeal in November 2022, then did not schedule oral arguments until January 2024. In its ruling last July, the state Supreme Court also adopted an exceedingly narrow reading of McGirt. A six-justice majority concluded, for various different reasons, that it would refuse to apply McGirt beyond the MCA context to the facts at hand.
“The United States Supreme Court’s declaration—113 years after statehood—that nearly half of Oklahoma is a reservation is unprecedented,” the Oklahoma Supreme Court wrote in a nine-page unsigned opinion. “To date, the United States Supreme Court has not extended its ruling in McGirt to the State’s civil or taxing jurisdiction. And it is not this Court’s place to do so.” In a concurring opinion, Justice James Winchester spelled out the stakes more plainly.
“If Congress did not disestablish the Muscogee (Creek) Nation’s historical reservation, do tribal members living in eastern Oklahoma have to pay state sales taxes?” he wrote. “Has the McGirt decision impacted the Oklahoma Corporation Commission’s ability to regulate oil and gas?” He also suggested that “questions remain as to whether McGirt impacts the maintenance of state highways, environmental regulations, and operations of oil and gas production owners in the region.”
Justice Doug Combs, writing for himself and two other dissenting justices, criticized his colleagues for refusing to apply McGirt forthrightly to the case at hand. In one key portion, for example, he explained that there was no significant daylight between the term “Indian country” as defined in the MCA and how the Supreme Court understood the term in the 1993 Sac & Fox Nation ruling. “Based on my reading of both definitions, it is apparent the two definitions are different ways of saying the same thing,” he explained, complete with tables of the two texts. “For each category of land in the Major Crimes Act, there is a corresponding corollary in the Sac & Fox Nation definition.”
Why would state officials and courts refuse so strenuously to abide by a Supreme Court ruling? Because it might work. Oklahoma Governor Kevin Stitt and other top officials had opposed the McGirt ruling and largely resisted its application over the next few years. Some of their anxiety is understandable: McGirt fundamentally changed how a significant portion of the state would be governed. But much of it appears to be driven by a point-blank refusal to accept the ruling on its own terms.
Two years later, in Oklahoma v. Castro-Huerta, the state’s recalcitrance paid off. Under the Major Crimes Act, Congress had also allowed the federal government to prosecute certain crimes committed by non-Indians against tribal members in Indian Country. Oklahoma, attempting to circumvent McGirt, argued that it had concurrent jurisdiction and could prosecute those crimes as well. Two centuries of Supreme Court precedent said otherwise. The McGirt dissenters, now joined by Justice Amy Coney Barrett, nonetheless sided with the state as a five-justice majority and substantially narrowed tribal sovereignty along the way.
Gorsuch, writing in dissent this time, sharply denounced his conservative colleagues for their blatant misreading of law and precedent. “Where this Court once stood firm, today it wilts,” he wrote, referring to a famous 1832 case where Chief Justice John Marshall had ruled against Georgia officials who tried to seize criminal jurisdiction over tribal lands. “Where our predecessors refused to participate in one state’s unlawful power grab at the expense of the Cherokee, today’s court accedes to another’s.”
Four years later, Oklahoma officials can still do basic arithmetic. Their obstinance towards McGirt is likely driven by the calculation that the Supreme Court will ultimately support them—a calculation that informs much of American political behavior these days. Former Solicitor General Elizabeth Prelogar, who represents Stroble, nonetheless urged the justices to take up the case for defying the high court’s authority.
“The glaring inconsistency between the decision below and decades of this Court’s precedents would call for certiorari even in the absence of a conflict,” she told the justices, quoting from precedent. “And indeed, in the ‘complex’ area of tribal sovereignty, the Court has recently granted certiorari in cases where the petitioners asserted no conflict in the lower courts.”
The commission, unsurprisingly, told the justices there was nothing to review here and that the state Supreme Court got it right. If the court takes up the case, the state argued, it should be to reverse its own ruling. “Although it is not necessary for the Court to do so in order to affirm the decision below,” the commission argued in its brief, “the Court may wish to revisit McGirt itself, both because it was incorrectly decided and because the predicted problems with the decision have been borne out in practice.”
Most of the time, the court’s decision to hear or not hear a case does not signal any view on the merits. This time, however, the Supreme Court’s refusal to hear this petition would effectively sanction Oklahoma’s campaign to read McGirt—and the long-awaited restoration of tribal sovereignty over a large portion of the state—out of existence. Narrowing McGirt into insignificance would not be the greatest crime committed against Oklahoma’s tribal nations by uncaring federal officials in the nation’s capital, of course. But it would spring from the same spirit as past mistakes—and be just as reprehensible as them.