Capitol Insider: State of Oklahoma seeks "jurisdictional certainty" following SCOTUS McGirt decision
In July 2020, the U.S. Supreme Court determined, in McGirt v. Oklahoma, that Oklahoma does not have jurisdiction over crimes committed on tribal land against tribal citizens. The decision has raised concerns about how far the ruling extends into other areas of state-tribal relations. We discuss with the special counsel to Governor Kevin Stitt, Ryan Leonard. In our next episode, we will talk about McGirt with Stephen Greetham, senior counsel to the Chickasaw Nation.
Dick Pryor: This is Capitol Insider, your weekly look inside Oklahoma politics, policy and government. I'm Dick Pryor with eCapitol news director Shawn Ashley, and our guest is Ryan Leonard, Special Counsel to Governor Kevin Stitt. Ryan, thanks for joining us.
Ryan Leonard: Thank you, Dick and Shawn. It's great to be with you both.
Dick Pryor: Ryan, as Special Counsel to the Governor what is your role?
Ryan Leonard: Dick, my role is to serve as counsel to the governor on matters and issues relating to the McGirt decision, which came down in July of last year.
Shawn Ashley: Now that decision found that Native American reservations in Oklahoma have never been disestablished, and the court found that Oklahoma does not have jurisdiction over crimes committed on tribal land against tribal citizens. And the ruling has thrown state tribal relations up in the air while the parties seek clarification on the reach of McGirt. Ryan, what do you and the governor see as the specific issues that need to be addressed in Oklahoma because of this decision?
Ryan Leonard: Shawn, the McGirt decision upended more than a century of all common understanding and legal precedent concerning the state of Oklahoma. When Oklahoma joined the union in 1907, it was understood by all and we believe expressed by Congress very plainly, that Oklahoma joined the union on equal footing with the other original states. The effect of the McGirt decision, which only pertained to federal major crimes on the Creek Nation Reservation, which includes downtown Tulsa, upended the understanding of multiple generations of Oklahoma and also tribal leaders.
As recently as 2016, leaders of the tribes had testified before Congress that we had no reservations in Oklahoma. So, the bottom line is the McGirt decision was expressly limited to federal major crimes, and we believe that is the scope of the decision. However, there are those in the tribal communities and others within the federal administration that view the McGirt decision much more broadly than that, and they believe the reservations were reestablished for all purposes, including civil, taxation, regulation, zoning.
No state in the Union has ever faced a situation where the jurisdiction has been upended to the extent that McGirt threatens to upend the state's jurisdiction. That is why this is such a curveball, and that is why this is such an important and pressing issue for our state.
Dick Pryor: Oklahoma Attorney General John O'Connor has filed many petitions with the U.S. Supreme Court asking the justices to overturn and/or narrow the decision the court made just 15 months ago. Why does the attorney general think the Supreme Court justices will significantly change their minds so soon after the McGirt ruling?
Ryan Leonard: Dick, the McGirt decision, it was a narrow five-four decision and pertained only to federal major crimes within the Creek Nation Reservation. That is not how the decision is being interpreted, however, by many in the tribal community and the federal government. Dick, we believe that the decision was incorrectly decided, decided contrary to multiple acts of Congress. In fact, there are 21 Acts of Congress that have been passed in the preceding decades, which specifically reference in-state former Indian reservations in Oklahoma. Our tribal friends and partners have testified multiple times before Congress that we have no reservations in Oklahoma. So, we just believe the Supreme Court got it wrong on the law.
Shawn Ashley: In his State of the State address, Governor Kevin Stitt called the McGirt decision “the state's most pressing issue.” Stitt’s also used that language in further conversations, and Attorney General O'Connor told The Oklahoman he's “not about to let half of our state be essentially divided from the United States and belong to the Indian nations.” What is it that makes the governor and attorney general see this decision in such dire terms and as such a threat?
Ryan Leonard: Shawn, when Oklahoma became a state, Congress gave sovereignty over the state of Oklahoma to the state. It was everyone's common understanding, including Congress’s for over a century, if in fact the state of Oklahoma had half of its territory exist as an Indian reservation that means that some serious fundamental errors were made when Oklahoma became a state, and we don't believe that occurred. We believe that generations that have lived within our state who are our neighbors, our brothers, our sisters, these include tribal citizens and non-tribal citizens alike, it was very clear what Congress's intent was when Oklahoma became a state.
So, to overnight wake up in the city of Tulsa and within eastern Oklahoma and be told by the Supreme Court that no, you've actually been living within a Native American reservation for over a century, but nobody knew it, it just doesn't make any sense, and it's contrary to the law, and that's why these issues are being placed back in front of the court. The McGirt decision, you know, thrust a dagger into the sovereignty of the state of Oklahoma. That's why this is so important, and that's why these issues are being placed back in front of the Supreme Court.
Dick Pryor: Ryan, the relationship between the governor's office and sovereign tribal nations has been strained. Is the governor working toward a negotiated resolution or preferring to just go the litigation route?
Ryan Leonard: If you read the McGirt decision itself, even the Supreme Court believes that a negotiated resolution was possible. If you look historically back at issues such as tobacco, gasoline taxes, the water issue, gaming…historically, the state and the tribes have a very positive history of reaching negotiated resolutions through compacts, and I can tell you that was the intent. However, there are those within the tribal communities that view this decision as much more broadly than it actually was.
On its face, the decision was limited to the federal Major Crimes (Act). However, we have, for example, 5,000 tribal tax protests and exemption applications pending before the Oklahoma Tax Commission, where Native Americans are seeking to not pay state income taxes. Well, that is about 21 percent of eastern Oklahoma. How can we exist as a viable state if we’ve got a substantial portion of eastern Oklahoma not paying income taxes and sales taxes? All the while everybody's driving on the same roads, everybody's kids are going to the same schools. It just doesn't make sense.
Historically, Oklahoma and the tribes have wonderful, very positive relationships. The tribes are wonderful citizens in Oklahoma and play a very important role in the fabric of our state. For example, statewide tribal governments employ 51,000 people. They are significant job creators and economic generators, and large portions of the state. Our tribal partners and friends are neighbors and allies. However, the McGirt decision has thrown the state into a state of chaos. With particular respect to criminal jurisdiction, we've had thousands of convictions called into question. If you go back and look over a 15-year period, the potential McGirt-impacted cases total about 76,000. That's just a tremendous amount of convictions. And, the prior convictions have been addressed by the Matloff ruling, which came down a couple of months ago, but the Matloff ruling does not solve the issues going forward.
Shawn Ashley: How, then, does the governor want to see issues raised by McGirt and related cases resolved? Is this in the courts? Is it negotiated? A compact? How do you do that?
Ryan Leonard: The governor has an open door and we have had a number of very productive, constructive conversations with our tribal partners. One of the fundamental challenges that exists is how folks are interpreting the scope of McGirt. McGirt on its face says that it is limited only to federal major crimes. However, that is not how others are interpreting it as I've said. So, if you interpret McGirt more broadly and say that eastern Oklahoma consists of Indian reservations for all purposes, that doesn't work in our state. We have almost two million people residing in eastern Oklahoma. The majority of whom are not Indian, who do not vote in tribal elections.
In fact, many of the folks voting in tribal elections don't even live in Oklahoma. But if you extend McGirt more broadly, McGirt impacts potentially issues relating to taxation, as I mentioned, zoning, regulation. These are all very fundamental questions of sovereignty and who has control and the bottom line is to exist as a state and to continue as a viable state going forward, we have got to have jurisdictional certainty. And McGirt turned jurisdictional certainty on its head.
Dick Pryor: Ryan Leonard, Special Counsel to Governor Kevin Stitt, thank you for your time with us on Capitol Insider.
Ryan Leonard: Thank you, Dick and Shawn. It's been a pleasure to be with you both.
Dick Pryor: We'd like to hear from you. Email your questions to firstname.lastname@example.org or contact us on Twitter @kgounews and @ecapitol. You can also find us online at kgou.org and ecapitol.net. Until next time, with Shawn Ashley, I'm Dick Pryor.
(In the next Capitol Insider, airing on October 15 and 18, we discuss the controversy over McGirt with Stephen Greetham, Senior Counsel for the Chickasaw Nation.)