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Four Years of McGirt: Reviewing Changes in Tax, Energy, and Criminal Law

Four Years of McGirt: Reviewing Changes in Tax, Energy, and Criminal Law

By Andy Hicks and Dave Finkel

Four years on from the Supreme Court’s monumental decision in McGirt v. Oklahoma, the results have been a mixed bag for all parties involved.[1] In our previous McGirt update, we detailed potential tax and regulatory implications in the first few months following the decision.[2] Now, with the benefit of hindsight, we update those initial predictions and reflect on McGirt’s effects in the Sooner State.

Tax Implications

After McGirt, the Court of Criminal Appeals of Oklahoma held in follow-on cases that reservations in remaining Five Tribes and the Quapaw Nation were neither diminished from their post-Civil War treaty boundaries nor disestablished.[3] While this legal recognition was the first step in the Oklahoma Tax Commission’s cautionary McGirt report,[4] no seismic loss in income and sales-and-use taxes has been reported. In October 2022, the Tax Commission ruled “that tribal citizens are still responsible for paying individual state income taxes.”[5]

That, however, is not the final word on the matter. In January 2024, the Oklahoma Supreme Court heard oral arguments in a tax appeal from the Commission, Stroble v. Oklahoma Tax Commission.[6] The appellant, Alicia Stroble, is a Muscogee (Creek) Nation citizen who lives on the Tribe’s reservation and works for the Tribe as the Secretary of the National Council.[7] The Commission reversed an administrative law judge’s decision that Stroble satisfied Oklahoma’s criteria for income tax exemption, reasoning that the judge erroneously applied McGirt—a decision it described as applicable only to federal criminal law under the Major Crimes Act—to state taxation matters.[8] The Commission noted that, under state law, Stroble did not qualify because she owned the property she lived on in fee simple, rather than either fee restricted tribal land or reservation property held in trust by the United States government.[9] The Commission contends that McGirt does not control the state law meaning of Indian country, and thus its taxation authority over tribal citizens not living on Indian country is not preempted by federal law.[10]

In a challenge to Oklahoma’s ad valorem taxes, Oneta Power sued Wagoner County Tax Assessor Sandy Hodges over property taxes levied against its power generation facility located on land within the Creek Reservation.[11] Oneta Power challenged both Wagoner County’s ability to levy and assess ad valorem taxes on personal property within Indian country as a result of McGirt as well as substantial year-over-year increases in the plant’s tax valuation.[12] In June 2022, Oneta Power dismissed its McGirt-based claims in its action against Hodges before a judicial resolution could be reached.[13]

Energy/Regulatory Implications 

Energy sector participants wondered how McGirt would affect Oklahoma’s ability to regulate statewide oil and gas development via the Oklahoma Corporation Commission. This question was answered in Application of Calyx Energy III, LLC, No. 2020-1032-7–1042-7 (Oklahoma Corporation Comm’n).

In April 2020, Calyx Energy filed applications to drill in Hughes County. Just days after the McGirt decision was issued in July 2020, Canaan Resources X protested Calyx’s applications, arguing that the Commission lacked regulatory authority over oil and gas development within the Muscogee Reservation.[14] Canaan lost in front of an administrative law judge, as well as on appeal to the Commission itself. The Commission held that McGirt did not affect its jurisdiction within Indian country.[15] Its decision depended on the same land-type distinctions discussed above—fee land, restricted fee tribal land, and trust land—as the land involved in Calyx’s applications were, except for a single parcel,[16] fee land on the exterior of the Muscogee Reservation without ties to the tribe or tribe members.[17] Canaan appealed the Oklahoma Supreme Court, but its appeal was dismissed in December 2021 after going into receivership.[18]

McGirt has altered the federal regulatory landscape in the mining sector, however. Before McGirt, for example, Oklahoma monitored “coal exploration and reclamation operations on Non-Indian and non-Federal lands within Oklahoma”[19] as part of the Department of the Interior’s Office of Surface Mining Reclamation and Enforcement (OSMRE) and its enabling legislation, the Surface Mining Control and Reclamation Act (SMCRA).[20] After McGirt, “OSMRE determined that Oklahoma could no longer operate its state regulatory program on the (newly confirmed) Creek Reservation because it qualifies as ‘Indian land’ under SMCRA.”[21] OSMRE’s decision stripped Oklahoma of its authority to administer SMCRA’s reclamation and regulatory programs on the exterior boundaries of the Muscogee (Creek) Nation Reservation, which OSMRE assumed in Oklahoma’s place.[22]

Oklahoma sued the Department of the Interior, seeking a preliminary injunction and a declaratory judgment that McGirt “does not apply to surface coal mining and that Oklahoma has jurisdiction under SMCRA to regulate surface coal mining on the Creek Reservation.” The state argued that OSMRE’s decision was arbitrary and capricious in violation of SMCRA and failed to follow the APA’s rulemaking requirements.[23]

The court was unpersuaded by the state’s arguments in denying the preliminary injunction, finding that because “the plain language of SMCRA excludes Indian lands from state regulatory and reclamation programs, Oklahoma lacks the authority to regulate surface mining or reclamation activities on Indian land, even in the absence of a tribal regulatory program.”[24] The court also found it “telling that Oklahoma’s state laws implementing its state SMCRA program specifically exclude Indian land from its regulatory jurisdiction.”[25] Given the clear text of the statute, the court was unwilling to entertain Oklahoma’s equitable arguments.[26] Oklahoma appealed the decision, but the parties stipulated to dismissal before briefing.[27]

Because Indian land/Indian country is defined differently under state and federal regulations, any entity determining regulatory authority in McGirt-related issues must begin by establishing these distinctions.

Criminal Implications

While federal courts appear unwilling to entertain equitable arguments by Oklahoma, state courts have been more lenient in the criminal justice realm.

In the immediate aftermath of the decision, some feared the retroactive application of McGirt to potentially thousands of eligible state prisoners would result in a wave of successful habeas applications—and criminals walking free—because prosecutors would lack the resources or evidence to re-prosecute. That fear has not come to fruition, as shown in two Oklahoma Court of Criminal Appeals decisions.

In March 2021, the Oklahoma Court of Criminal Appeals decided in State v. Bosse[28] that the issue in McGirt related to subject matter jurisdiction and was therefore not waivable.[29] This meant that McGirt applied not just prospectively, but retroactively to any state prisoners who were similarly situated to Jimcy McGirt. But shortly after Bosse, the court changed tack. It reframed the issue not as a fundamental defect in the subject matter jurisdiction of the court of conviction, but a change in the rules applying subject matter jurisdiction. The court reasoned that a new rule that alters subject matter jurisdiction did not necessarily undermine faith in previous convictions that were otherwise accurate and where no question of innocence arose from the jurisdictional defect.[30] Indeed, a “policy of non-retroactivity was grounded in principles of finality of judgments and fundamental fairness.”[31] Because retroactive application could invalidate a conviction years after the fact, “the guilty will go unpunished due to the impracticability of charging and retrying the defendant after a long interval of time.”[32]

Accordingly, the court “conclude[d] that McGirt announced a rule of criminal procedure,” which was not a watershed rule of procedure like the one announced in Gideon v. Wainwright,[33] and therefore did not warrant retroactive application.[34] Therefore McGirt applied only to the instant parties, those cases on direct appeal, and going forward as a new rule of procedure applied to subject matter jurisdiction.

The U.S. Supreme Court subsequently narrowed McGirt in June 2022, holding in Oklahoma v. Castro-Huerta that Oklahoma and the federal government had concurrent jurisdiction to prosecute non-Indians accused of crimes against Indians in Indian country.[35]

In a final note, after his original state court conviction was thrown out in McGirt, Jimcy McGirt was indicted and prosecuted by federal prosecutors. He was convicted of all counts following a jury trial, but the Tenth Circuit reversed the conviction because of faulty jury instructions.[36] While awaiting his next trial, McGirt reached a plea agreement with federal prosecutors for 30 years with credit for time served of 26 years.[37] McGirt’s plea agreement must still be approved by the federal judge assigned to his case. McGirt’s sentencing hearing, originally set for March 15, 2024, has been stricken as he once again challenged the court’s jurisdiction with a motion to dismiss.[38] The court denied McGirt’s motion but has not yet set a second sentencing date.[39]  

Takeaways

After four years of McGirt, what are the key takeaways? While we wait for Congressional action to clarify the interaction of federal, state, and tribal law, the apparatuses of government at all levels will continue to function. Working within these confines as we currently know them will remain the best practice for the foreseeable future. For companies doing business in Oklahoma on tribal land, that means knowing the contours of the law—federal, state, and tribal—as well as the type of land they are working on.

Andy Hicks is the managing partner and Dave Finkel is an associate at Schiffer Hicks Johnson PLLC, a Houston-based trial law firm.

[1] 140 S. Ct. 2452 (2020).

[2] Andy Hicks, Adam Dinnell, & Dave Finkel, McGirt Update: Tax, Environmental, and Energy Implications, Oct. 26, 2020, https://shjlawfirm.com/2020/10/26/mcgirt-update-tax-environmental-and-energy-implications/.

[3] Hogner v. State, 500 P.3d 629, 635 (Okla. Crim. App. 2021) (Cherokee Nation Reservation), overruled on other grounds by Deo v. Parish, 541 P.3d 833 (Okla. Crim. App. 2023); Bosse v. State, 499 P.3d 771, 774 (Okla. Crim. App. 2021) (Chickasaw Nation Reservation); Sizemore v. State, 485 P.3d 867, 870–71 (Okla. Crim. App. 2021) (Choctaw Nation Reservation); Grayson v. State, 485 P.3d 250, 254 (Okla. Crim. App. 2021) (Seminole Nation Reservation); State v. Lawhorn, 499 P.3d 777 (Okla. Crim. App. 2021) (Quapaw Nation Reservation).

[4] Carmen Forman, Tax Commission: McGirt decision will have ‘significant, immediate’ financial impact, The Oklahoman (Oct. 5, 2020), https://www.oklahoman.com/story/news/politics/2020/10/05/tax-commission-mcgirt-decision-will-have-significant-immediate-financial-impact/301393007/.

[5] Ryan Love, Oklahoma Tax Commission: Tribal citizens must still pay state income tax, 2 News Oklahoma  (Oct. 12, 2022), https://www.kjrh.com/news/local-news/oklahoma-tax-commission-tribal-citizens-must-still-pay-state-income-tax.

[6] Derrick James, Oklahoma Supreme Court to hear arguments in Native American tax case, McAlester News-Capital (Oct. 20, 2023), https://www.mcalesternews.com/news/oklahoma-supreme-court-to-hear-arguments-in-native-american-tax-case/article_8ed8e212-6e95-11ee-8202-83d256612f04.html.

[7] Braden Harper, Opening arguments made in Stroble v. Oklahoma Tax Commission Case, Mvskokemedia (Jan. 17, 2024), https://www.mvskokemedia.com/opening-arguments-made-in-stroble-v-oklahoma-tax-commission-case/.

[8] See supra note 6.

[9] Id.; see also Okla. Admin. Code 710:50-15-2 Application of the Oklahoma Individual Income Tax to Native Americans; see also Drew Rader, ‘This Land Is Whose Land?’: An Update on McGirt and the Energy Sector in Oklahoma, Oklahoma Bar Journal (March 2022), https://www.okbar.org/barjournal/march-2022/rader/ (discussing different land types in Indian law).

[10] Stroble v. Oklahoma Tax Commission, No. T-21-013-S, 2023 WL 5311481, at *4, *7 (Okla. 2023) (Brief for Appellee).

[11] Curtis Killman, Power generating company drops McGirt-based challenge to property taxes, TulsaWorld (Jun. 19, 2022), https://tulsaworld.com/news/local/crime-and-courts/power-generating-company-drops-mcgirt-based-challenge-to-property-taxes/article_1bc0b4f2-edb9-11ec-9dd1-47d24101841b.html.

[12] Id.

[13] Id.

[14] Mike W. Ray, Challenge filed against state regulation of energy industry, Southwest Ledger (Jan. 6, 2022), https://www.southwestledger.news/news/challenge-filed-against-state-regulation-energy-industry.

[15] Id.

[16] The exception being a “restricted Indian lease [] held in trust by the United States Government . . . [which] was properly acquired through the Hughes County District Court as required [by law].” Order Denying Protestant’s Motion to Dismiss for Lack of Jurisdiction and Oral Motion to Stay, Cause CD Nos. 202001032-T – 1042-T at 8 (Okla. Corp. Comm’n, Nov. 25, 2020).

[17] Id.

[18] See supra note 14.

[19] Oklahoma v. U.S. Dept. of the Int., 577 F. Supp. 3d 1266, 1270 (W.D. Okla. 2021) (quoting 47 Fed. Reg. 14,152 (April 2, 1982)).

[20] Id. at 1269.

[21] Id. at 1270.

[22] Id.

[23] Id. at 1271.

[24] Id. at 1273.

[25] Id. at 1273 (citing Okla. Admin. Code §§ 460:20-3-5; 460:20-3-6(d)).

[26] Id. at 1274 (respond to Oklahoma’s equitable defenses); Oklahoma v. U.S. Dept. of the Int., 640 F. Supp. 3d 1110, 1123  (W.D. Okla. 2022) (responding to Oklahoma’s equitable arguments in a similar suit related to Choctaw and Cherokee reservations).

[27] Oklahoma v. United States Department of the Interior, No. 23-6006, Text Entry No. 11000354 (10th Cir. May 18, 2023).

[28] 484 P.3d 286 (Okla. Crim. App. 2021), as corrected (Mar. 19, 2021), opinion withdrawn and vacated, 495 P.3d 669 (Okla. Crim. App. 2021), and superseded, 499 P.3d 771 (Okla. Crim. App. 2021), overruled by State ex rel. Matloff v. Wallace, 497 P.3d 686 (Okla. Crim. App. 2021).

[29][29] Id. at 293.

[30] State ex rel. Matloff v. Wallace, 497 P.3d 686, 690 (Okla. Crim. App. 2021).

[31] Id.

[32] Id. (quoting United States v. Cuch, 79 F.3d 987, 991–92 (10th Cir. 1996)).

[33] 372 U.S. 335 (1963) (holding that the Sixth Amendment, incorporated against the states by the Fourteenth Amendment, provided a right to counsel in all criminal prosecutions, even when the defendant is indigent).

[34] Matloff, 497 P.3d at 694.

[35] 597 U.S. 629, 656 (2022).

[36] United States v. McGirt, 71 F.4th 755, 773 (10th Cir. 2023)

[37] Associated Press, McGirt, at center of reservation ruling, reaches plea deal, The Journal Record (December 6, 2023), https://journalrecord.com/2023/12/mcgirt-at-center-of-reservation-ruling-reaches-plea-deal/.

[38] See United States v. McGirt, No. 20-CR-050-JFH, ECF ## 279, 285–287 (E.D. Okla. Nov. 15, 2023) (Order setting sentencing hearing).

[39] McGirt, No. 20-CR-050-JFH, ECF #292 (Mar. 27, 2024).