It is rare for the holding in a single criminal case to have such far-reaching implications that it affects nearly every industry in a particular state. But that is what happened on July 9, 2020, when the United States Supreme Court overturned Jimcy McGirt’s criminal conviction in Oklahoma state court by holding that Oklahoma did not have jurisdiction to prosecute McGirt (a citizen of the Creek tribe) for a crime committed within the boundaries of the Creek Nation. The most far-reaching aspect of the Court’s ruling was how it determined the boundaries of the Creek Nation should be determined—by looking at boundaries set in an 1833 treaty between the United States and the Creek tribe as a precursor to the “Trail of Tears.” In his dissent, Chief Justice Roberts explains how far-reaching the implications of the Court’s decision are beyond just McGirt’s criminal case:
[U]nbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation… Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma. The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people...
[T]he Court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.
In addition to the above, almost a quarter of Oklahoma’s recent oil and gas wells and around 60 percent of its refinery capacity now lie within the territory of the five tribes.
If you are one of the many people who may have been unknowingly planning or constructing a project or operating an oil and gas lease on what is now potentially a Native American reservation, then you need to prepare for several potential uncertainties as you move forward. For example, tribes may impose taxes on non-members for economic activity on the reservation, or may set stricter environmental regulation, and the reach of Oklahoma’s regulatory arm will be severely limited. Additionally, if you work directly with a tribal entity, there may be questions of whether that entity has sovereign immunity from being sued (even in simple breach of contract cases), and venue for any potential suit may be required in Tribal courts unless you obtain clear waivers. And activities which are not crimes in the rest of the state may be crimes within the reservation.
The Supreme Court’s opinion creates several open questions which will likely remain open for years until Congress, the Native Americans, and the courts find a way to untangle the confusion. For now, the best strategy is to plan ahead and ensure that your contract protects you from unforeseen risks and unfavorable venues.
This article, "Half of Oklahoma is Now Likely Within a Native American Reservation, What Does This Mean for Your Project?" was published in the Bradley Construction and Procurement Law Newsletter for the third quarter of 2020.