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Oklahoma Asks High Court to Nix Landmark Tribal-Land Ruling (1)

Aug. 9, 2021, 7:25 PMUpdated: Aug. 9, 2021, 8:50 PM

Oklahoma wants the U.S. Supreme Court to reverse a landmark tribal-land ruling, in a bold request that tests the court’s stance on precedent following Justice Amy Coney Barrett’s confirmation.

The state’s petition, filed by Kannon Shanmugam of Paul Weiss, follows July 2020’s McGirt v. Oklahoma, the 5-4 ruling authored by Justice Neil Gorsuch and joined by the then-four Democratic appointees, including the late Ruth Bader Ginsburg.

With Barrett in Ginsburg’s place, the state is asking the court to reverse the ruling lauded by American Indian tribes as a long-overdue affirmation of their sovereignty after years of broken treaty-promises and high-court losses.

Oklahoma, however, says its sovereignty is at stake. “No recent decision of this Court has had a more immediate and destabilizing effect on life in an American State than McGirt,” said the filing by the Paul Weiss team and lawyers for the state, whose governor warns the fallout from McGirt is the “most pressing issue” for Oklahoma’s future.

The petition paints a dark picture of life after McGirt, which held the state can’t prosecute Indians for certain crimes on tribal land. Oklahoma similarly warned in the run-up to the McGirt decision of the public safety and economic disasters that would follow if the state lost.

The lawyer who argued McGirt for the Muscogee (Creek) Nation, the tribe whose land was at issue in the dispute, called the state’s request to overrule the case so soon “radical.” The request “treats the Court more like a political than a judicial institution,” said Riyaz Kanji of Kanji & Katzen in Ann Arbor, Michigan.

The state’s filing complains of federal and tribal prosecutors ill-equipped to handle the higher caseload, as well as civil ramifications, namely the jeopardizing of “hundreds of millions of dollars in state tax revenue and calling into question the State’s regulatory authority within its own borders.”

Whether and how McGirt stands depends on how the current majority views precedent—in this case a brand new one. The subject of adhering to prior rulings is top of mind for court watchers as the justices consider whether to overturn longstanding abortion precedent this coming term. Oklahoma Attorney General John O’Connor has also joined other Republicans in calling for the justices to overturn Roe v. Wade.

In its effort to turn Chief Justice John Roberts’ McGirt dissent into a majority opinion, the state also has to attract the vote of Roberts himself, who last year declined to fully abandon a recent abortion precedent when presented with the opportunity to do so.

‘Unprecedented Triage’

Gorsuch’s McGirt opinion said land reserved for the Creek Nation remains “Indian country” for purposes of the federal Major Crimes Act, meaning the state can’t prosecute Indians for serious crimes in Indian country. Federal prosecutors can and have pursued such cases in the wake of the ruling. That includes the man at the center of the precedent at issue, Jimcy McGirt, who was retried federally and convicted in November 2020 of aggravated sexual abuse and abusive sexual contact.

The state’s petition in the new case, Oklahoma v. Bosse, points to cases that aren’t being retried, claiming that Oklahoma federal prosecutors have resorted to “unprecedented triage.”

Presented with similar claims of criminal and civil dangers in McGirt, Gorsuch said “dire warnings are just that, and not a license for us to disregard the law.”

Kanji said Oklahoma’s request to overrule last year’s precedent “cannot be justified by the State’s inflated assertions regarding the criminal and civil consequences of McGirt, and it does a great disservice to those working in good faith on the ground to implement the decision.”

The Creek Nation is one of the Five Tribes—along with the Chickasaw, Cherokee, Choctaw, and Seminole—that were forced west on the Trail of Tears in the 1800s to what’s now eastern Oklahoma. State court rulings after McGirt said the other four tribes’ reservations that make up the eastern half of the state are still intact, too, rendering that land Indian country. The issue boiled down to whether Congress ever disbanded the Creek’s 19th-century treaty-backed reservation. The McGirt majority said it did not. The other tribes have similar treaties, leading to the same result.

Non-Indians

The Supreme Court has already expressed an interest in the Bosse case, before the state injected this new request into the litigation.

In May, over dissent from the three remaining Democratic appointees, the court granted the state’s motion to stay an Oklahoma ruling in favor of Shaun Michael Bosse. He’s a non-Indian who was sentenced to death in state court for murdering Chickasaw victims Katrina Griffin and her two young children, Christian and Chasity, on Chickasaw land.

The post-McGirt ruling said Oklahoma prosecutors couldn’t try Bosse for murder because his victims were Indian and he committed his crimes in Indian country. It also said such challenges could be brought any time.

The high-court stay remains in place pending the disposition of the state’s petition, which raises three issues: the state’s ability to prosecute non-Indians, the procedural issue of whether such challenges can be brought anytime, and whether to overturn McGirt. The justices are free to grant review of any or none of those issues.

Opposing the stay, Bosse pointed out in a May filing that, when McGirt was pending before the Supreme Court, Oklahoma’s dire warnings included statements that contradict its current claims: In its McGirt brief, the state said the issue could be raised any time and, at the argument, it said the state wouldn’t have jurisdiction over non-Indians if the justices affirmed the Creek reservation.

“Oklahoma made those statements because they were so obviously true as to be no concession at all,” Bosse said in the filing by lead counsel Zachary Charles Schauf of Jenner & Block. “Yet Oklahoma now seeks extraordinary relief,” he said, simply because the Oklahoma court “held exactly what the State told this Court that it would hold.”

The case is Oklahoma v. Bosse, U.S., docket pending.

(Adds comments from Riyaz Kanji, more detail on Roberts' precedent approach. )

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com