Victory for all, administration for some: an examination of differences in the impact of Indigenous jurisdictional expansion in Oklahoma

Abstract

Indigenous polities often face the consequences of decisions that emerge from processes outside of their control. The U.S. Supreme Court decision on McGirt v. Oklahoma in 2020, which recognized nearly a third of the state of Oklahoma as potentially within the jurisdiction of five Native American tribes, is one such example. The lawsuit generating this decision was a legal appeal by an individual – not a tribe – and may have implications that include recognizing tribal jurisdiction in civil and criminal matters throughout much of the state. The decision was celebrated by tribes and those advocating for greater recognition of their territorial authority. Yet, for tribal leaders and other practitioners of Indigenous self-determination, the decision potentially shifts major administrative burdens to resource-limited tribes. In an attempt to mitigate the significant costs of administering this territory, these tribes have initiated negotiations with the state of Oklahoma and local municipalities to clarify jurisdiction and coordinate administrative responsibilities. Outrage over these negotiations came from mostly academics and activists who perceived negotiations as a rejection of greater jurisdictional sovereignty. This paper uses the McGirt decision as a point of entry to explore differences in how practitioners and academics grounded in Indigenous politics understand the impact of policy shifts even when they further mutually desired commitments.

Keywords:

• Native Americans
• public administration
• jurisdiction
• indigenous studies

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

Notes

1 A note on nomenclature. In this article we will refer to Indigenous peoples in the United States as “Native Americans” (or “Native”). Given the widespread and accepted use of the terms “tribe” or “tribal” as they pertain to Native American polities, this paper will use these terms while acknowledging these are considered pejorative in other regions. When we refer to Native peoples outside of the United States or more globally, we will use the term “Indigenous peoples.”

2 Oklahoma is home to 39 tribes, 38 of which are federally recognized, which is a term indicating the federal government has a relationship with these groups that allow for federal funding but also place them in a polity-to-polity interaction. Federally recognized status is conferred by signing a treaty the federal government in the 18th or 19th century (treaty making ended in the 1870s), by Congressional Act (i.e. voting) or by an administrative process (often referred to as the acknowledgment process.

3 Regarding criminal jurisdiction, congress passed the Major Crimes Act (1885) to undermine decision in Ex parte Crow Dog (1883) which the federal court murder conviction of a Native man was overturned by the Supreme Court due to the victim of the crime being Native and the location an Indian reservation. In economic autonomy, Congress passed the Indian Gaming Regulatory Act (2018) as a restrictive response to the Supreme Court’s California v. Cabazon Band of Mission Indians (1987) ruling that granted significant powers to tribes to avoid state-level regulation.