By Jordan S. Rubin
Supreme Court Justice Amy Coney Barrett said recently that she and her colleagues aren’t “a bunch of partisan hacks.”
The state of Oklahoma is testing that notion, at least in the eyes of American Indian tribes.
Governor Kevin Stitt (R) wants the court to reverse 2020’s McGirt v. Oklahoma, the 5-4 ruling hailed by tribes as a long-overdue endorsement of their sovereignty in much of the eastern part of the state.
Doubling down on those warnings, Stitt earlier this year cited Barrett’s replacement of the late Ruth Bader Ginsburg, who ruled against Oklahoma, as giving the state a chance in its long-shot appeal as it presses over 30 petitions asking the court to change its mind. The justices will consider Oklahoma’s petitions as the court faces historic-low public approval and progressives call for court-packing while the Republican-appointed majority considers overruling longstanding abortion precedents.
“Their petitions are somewhat remarkable in that they’re a naked grab for a do-over with the court,” said Stephen Greetham, senior counsel for the Chickasaw Nation, which in its amicus brief called out the governor’s “cynical reliance on the Court’s recent change in composition” to overturn the precedent.
State officials remind the justices that they don’t always follow their prior rulings, citing a 2019 case that tossed a longstanding decision and led Justice Stephen Breyer in his 5-4 dissent to “wonder which cases the Court will overrule next.” Lawyers for Oklahoma also cite 1991’s Payne v. Tennessee, in which a newly composed court overruled recent decisions on capital-case evidence, while Justice Thurgood Marshall began his dissent by saying, “Power, not reason, is the new currency of this Court’s decisionmaking.”
Reversing course just a year after McGirt “would be a very dangerous precedent to set that would drastically undermine the court’s authority,” said Mary Kathryn Nagle, who filed an amicus brief in McGirt on behalf of the National Indigenous Women’s Resource Center, tribal nations, and other groups.
“I would be surprised if the court was willing to do it,” she said, “just like the court wasn’t willing to go back and reconsider Brown v. Board of Education just because governors in the south refused to desegregate.”
McGirt is a criminal case in which the defendant challenged the state’s authority to prosecute crimes involving Indians on Indian land. That raised the question whether the land is still a reservation or subject to state jurisdiction.
Gorsuch’s 2020 opinion said Congress never “disestablished” the Muscogee (Creek) reservation created in a 19th-century treaty. He was joined by Ginsburg and Justices Breyer, Sonia Sotomayor, and Elena Kagan. Chief Justice John Roberts dissented, joined by Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh—the four Republican appointees at the time besides Gorsuch.
The decision led to court recognition of all Five Tribes’ reservations in eastern Oklahoma—the Cherokee, Chickasaw, Choctaw, and Seminole as well as the Creek. On Oct. 21, the Oklahoma Court of Criminal Appeals added a sixth tribe, the Quapaw Nation, to the reservations on which the state lacks jurisdiction. “Oklahoma is literally being torn into pieces,” Stitt said after the latest ruling.
Ahead of McGirt, state officials warned that federal and tribal caseloads would increase as a result of the state losing jurisdiction over the reservations and state prisoners challenging their convictions. They warned of civil consequences as well for tax and regulatory authority. Officials echo those claims in their attempt to overturn the new precedent at the new court.
“McGirt has pitched Oklahoma’s criminal-justice system into a state of emergency,” the state said in its main petition pending at the court, Oklahoma v. Castro-Huerta. Lead counsel for the state is veteran high-court lawyer Kannon Shanmugam, head of the Supreme Court practice at Paul, Weiss in Washington.
Nearby states as well as Oklahoma cities, the oil and gas industry, and law enforcement groups filed amicus briefs backing the state’s call to change course. “In the wake of McGirt, crimes have gone unprosecuted, allowing dangerous criminals to reoffend and undermining public confidence in law enforcement,” the law enforcement groups tell the justices.
Stitt spokesperson Carly Atchison, in a statement to Bloomberg Law, said McGirt “creates a public safety nightmare for victims and law enforcement.”
She cited the case of Tyler Tait, in which she said “a Cherokee Nation doctor murdered a Cherokee woman after his previous domestic abuse charge was dismissed due to McGirt.” The state court dismissed Tait’s abuse charge after his lawyer cited the alleged victim’s tribal membership and the fact that the alleged abuse occurred on the Cherokee reservation.
“One of the most basic functions of a state is the ability to enforce the rule of law and today Oklahoma does not have that ability in half the state,” Atchison said.
Sarah Hill, the Cherokee Nation attorney general, said that the Tait murder case is “divorced from the McGirt issue” and that the state misrepresents key facts. Tait was free on bond for the duration of his state abuse case, which was a misdemeanor; the alleged murder occurred in Arkansas, and neither Tait, who worked as a doctor for the Cherokee Nation, nor the murder victim, Moria Kinsey, who worked as a nurse for the Cherokee Nation, are Indian, Hill said.
“They want to say this would not have happened but for McGirt, but the facts simply don’t support that reading of the situation,” Hill said.
The Creek Nation’s amicus brief filed this month likewise contests what it calls the state’s “Chicken Little” narrative.
“Contrary to Oklahoma’s tale, McGirt has not rendered eastern Oklahoma a criminal dystopia,” said the brief filed by lead counsel Riyaz Kanji of Kanji & Katzen in Ann Arbor, Mich., who argued McGirt for the Creek Nation last year.
Stitt spokesperson Atchison said it’s “not an issue of Kevin Stitt versus the tribes, it is an issue of the fundamental sovereignty of a state in the United States of America.” In Oklahoma’s legal filings and in public comments, Stitt has blamed tribes for not cooperating with state officials in the wake of McGirt.
But lawyers for tribes working to implement the ruling say that, if anything, it’s Stitt’s fixation with overturning it that hampers progress.
Stitt has called the case the most pressing issue for Oklahoma but only 23% of Oklahoma registered voters agree with that assertion, according to polling.
“McGirt works,” said Kyle Haskins, first assistant attorney general for the Creek Nation. “We spend our time focused on implementing the rule of law as established by McGirt and meeting our responsibilities to the public, and at the same time we spend hundreds of hours and many thousands of dollars fighting the constant barrage of legal challenges filed by the state.”
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