What Does the Supreme Court’s Decision in McGirt v. Oklahoma Mean for Natural Resources Development in the United States?

  • A Virtual Setting
  • September 10, 2020 at 10am MDT

Seismic Shift, Cabined Prosecutorial Authority Precedent or Something in Between?
What Does the Supreme Court’s Decision in McGirt v. Oklahoma Mean for Natural Resources Development in the United States?

September 10th, 2020 at 9am PDT, 10am MDT, 11am CDT, noon EDT

“On the far end of the Trail of Tears,” Justice Gorsuch wrote at the outset of the U.S. Supreme Court’s July 9, 2020 opinion in McGirt v. Oklahoma, “was a promise.”  That promise was a permanent homeland for the Muscogee (Creek) Nation, which had been forced to cede its lands in the Eastern United States in exchange for approximately three million acres in the Indian Territory where its citizens could continue to engage in self-governance according to their own laws and institutions.  In McGirt, the Court held “the government to its word,” enforcing the promise in the 1866 treaty with the Creeks, and found that the Creek Reservation persists, having never been disestablished by either Oklahoma’s entry into the Union in 1907 or any other Congressional acts.  Under an 1885 statute, the Major Crimes Act, the federal government has exclusive criminal jurisdiction over certain felonies arising on Indian reservations, and hence within “Indian country,” and therefore the Court found that Oklahoma’s prosecution of McGirt, and other Native Americans, was infirm. 

Erroneous banner headlines followed the Court’s ruling (e.g., in The Washington Post (“Half of the Land in Oklahoma Could Be Returned to Native Americans”).  McGirt has nothing to do with land ownership.  Nonetheless, alarm bells have resounded in the oil and gas community.  And not just in Oklahoma.  Throughout the country, tribal leaders, scholars and those living and working on lands within historic reservation boundaries but long considered to be non-reservation lands are considering whether, under McGirt, such lands may be held “Indian country” and potentially subject to expanded tribal, and reduced state, authority.  They also are thinking about the potential civil regulatory and adjudicatory authority questions flowing from the fact that the Creek Reservation endures, as well as the broader implications of the Supreme Court’s enforcement of tribal treaty rights.  This panel will broadly discuss the challenges and opportunities of the McGirt decision through a resources development lens.

1.5 hours of CLE available!