State Courts, Settler Colonialism, and the Political Implications of the 2020 McGirt Decision in Oklahoma

Daniel R. Alvord, Oklahoma State University

In 2020, the U.S. Supreme Court ruled in McGirt v. Oklahoma that the Muscogee (Creek) Nation reservation had never been disestablished by Congress. The ruling was subsequently extended to the other “Five Civilized Tribes”—the Cherokee, Chickasaw, Choctaw, and Seminole Nations—effectively reaffirming reservation boundaries that cover nearly half of eastern Oklahoma. Because the Court determined that these reservations legally persist, it held that the State of Oklahoma lacks jurisdiction to prosecute certain crimes committed by tribal citizens within reservation boundaries. The decision generated substantial political and legal backlash within the state. Oklahoma officials filed more than thirty petitions asking the Court to reconsider or overturn McGirt, though none succeeded. At the same time, state officials warned that the decision threatened to disrupt state authority across a wide range of policy domains touching Indian affairs, a sentiment echoed by the Chief Justice John Roberts in his dissent. Y et despite these concerns, the broader transformation of jurisdictional authority that many observers anticipated has largely failed to materialize. This paper examines how the State of Oklahoma has contained the broader implications of McGirt and effectively reasserted state authority over contested jurisdictional domains. I argue that an important site of this containment has been Oklahoma’s own judicial institutions. The paper analyzes two significant rulings from the state’s highest courts in which litigants attempted to extend the logic of McGirt to other areas of law. Through close analysis of judicial opinions, the paper shows how state courts narrowed the interpretive reach of the decision and articulated legal justifications that limit its broader implications for tribal sovereignty. By examining how state courts respond to disruptive federal rulings, the paper sheds light on the institutional mechanisms through which states adapt to—and ultimately constrain—transformations in sovereignty and jurisdiction.

No extended abstract or paper available

 Presented in Session 195. Settler Colonialism, Indigenous Removal, and Displacement