Velchik and Zhang — An Empirical Examination of Restoring Reservation Status in Oklahoma

Michael K. Velchik & Jeffery Y. Zhang have published “Restoring Indian Reservation Status: An Empirical Analysis” in the Yale Journal on Regulation. PDF

I posted about this excellent article a while back when it was in draft form.

This is not Oklahoma.

Tenth Circuit Briefs in United States v. Murphy [yes, that Murphy]


Mr. Murphy prevailed against Oklahoma in the Supreme Court following the McGirt decision, but was immediately prosecuted and convicted by the United States. He is now challenging the federal government’s delay.

Oklahoma Federal Court [with New Mexico Judge] Dismisses Cherokee Citizens Claims against Oklahoma on State Court Exhaustion Grounds

Here are the materials in Pickup v. District Court of Nowata County (N.D. Okla.):

18 Counties Motion to Dismiss

24 District Attorneys Motion to Dismiss

27 Towns Motion to Dismiss

70 Clerks Motion to Dismiss

71 Clerk Edwards Motion to Dismiss

72 Clerk Newberry Motion to Dismiss

75 Opposition to 18

76 Opposition to 24

77 Opposition to 27

78 Opposition to 70

79 Opposition to 71

80 Opposition to 72

84 Reply in Support of 18

85 Reply in Support of 24

86 Reply in Support of 27

87 Owasso Motion to Dismiss

88 Reply in Support of 70

89 Reply in Support of 71

90 Reply in Support of 72

94 Opposition to 87

95 Reply in Support of 87

143 Tribes Motion to File Amicus Brief

143-1 Amicus Brief

170 DCT Order

Complaint here.

Emily Harwell on the Effects of McGirt

Emily N. Harwell has published “Judicial Discretion Across Jurisdictions: McGirt’s Effects on Indian Offenders in Oklahoma” in the Cornell Law Review. PDF.


Here is the abstract:

Oklahoma’s exercise of criminal jurisdiction over crime committed on tribal reservations remained unchecked until 2020. In McGirt v. Oklahoma, the Supreme Court held that the Muscogee Creek Nation’s reservation had in fact never been disestablished and remains in existence today. In doing so, the Court restored criminal prosecution authority to tribal and federal courts. McGirt received praise throughout the United States from tribal nations and federal Indian Law practitioners for Justice Gorsuch’s strong affirmation of the Muscogee Creek’s sovereignty over its reservation and the honoring of treaties made between the United States and the Muscogee Creek Nation. Similarly situated tribes in Eastern Oklahoma including the Cherokee, Choctaw, and Chickasaw have already joined the Muscogee Creek Nation in asserting the changes that McGirt brings.

In the wake of this change, legal and political discussion has centered around practical matters: Does the Tribe have adequate resources for managing criminal jurisdiction within its reservation? Will the increase in cases overload the federal court system? The question of how the change in prosecutorial authority will affect Native American criminal defendants has yet to be asked, though. This Note assesses the effects of McGirt on the sentencing of Native Americans who commit crimes on a reservation in Oklahoma. Oklahoma state court judges exercise discretion in areas of sentencing different from federal court judges. Existing empirical studies suggest federal sentencing produces harsher, lengthier sentences than state courts. By comparing Oklahoma and federal court sentencing data, this study attempts to answer whether McGirt‘s celebration of tribal sovereignty is simultaneously a devastating blow to Native American criminal defendants committing crimes on tribal reservations in Oklahoma.

Oklahoma SCT Holds States Court Possess Jurisdiction to Enforce Protection Orders between Indians inside Indian Country

Here are the materials in Milne v. Hudson:

Majority Opinion

Concurring Opinion — Gurich

Concurring Opinion — Darby

Concurring Opinion — Combs

Appellant Brief

District Court Order

Motion to Dismiss

Carter and Rotman on Surface Mining Regulation After McGirt

Sam Carter and Robin Rotman have posted “Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After McGirt?,” forthcoming in the Montana Law Review, on SSRN.

Here is the abstract:

Following the decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), there has been a surge of litigation from the State of Oklahoma seeking to clarify the scope of the McGirt holding. While the Supreme Court of the United States was clear that the holding in McGirt was limited to criminal jurisdiction under the Major Crimes Act, it has sparked subsequent litigation regarding the scope of tribal authority. The pending case of State of Oklahoma v. United States Department of the Interior, which concerns surface mining regulation in Indian Country in Oklahoma, will test the application of McGirt outside of the criminal context. To this end, our article makes three recommendations: (1) in litigation concerning tribal lands, tribes should be a necessary party for litigation to proceed; (2) Congress should invest in pathways for tribes to build the capacity to create and manage their own programs, and (3) when tribal self-determination is encouraged and jurisdictional boundaries are clear, tribes can retain agency over their energy future and are less susceptible to the social harms that have been associated with the development of energy projects.