Elton & Been on McGirt v. Oklahoma

Robb Elton and Arthur Been (Northcentral University and Hampton Law Office) have posted Law, Community, and McGirt v. Oklahoma on SSRN. Here is the abstract:

 

In 2020, Oklahoma had to be told — just as Nebraska (2016) and South Dakota (1984) were — that it had been unlawfully exercising jurisdiction over Indian Country, a geographical area which includes Tulsa, its second largest city. Oklahoma continues to litigate in disappointment of and in denial of moderated authority over Indians in Indian Country. Since around 1861 courts began noticing states lacked jurisdiction over crime in Indian country. Congress had been inserting provisions into state enabling acts of that period. Enabling Acts are federal statutes creating states (Leonhard, 2021, p. 48). Provisions in these acts also explicitly prohibited state authority in areas termed Indian Country, consistent with treaty provisions. This paper describes the latent struggles at the social and judicial levels in Oklahoma since the landmark holding in McGirt v. Oklahoma: a clear win for Indian sovereignty and treaty rights, yet according to Oklahoma, the criminal jurisdictional framework in place since the Trail of Tears — as outlined by McGirt — was an existential curse in the form of a new rule of criminal procedure created by the Supreme Court, not a holding related to (inter alia) preempted treaty protections.