Native American Law Expert Sees McGirt Staying, Some Issues To Resolve

Aug 27, 2021

A federal prosecutor turned private practice Native American law attorney says the despite the current stalemate between Gov. Kevin Stitt and tribes, there is a way forward — and there needs to be, because the McGirt decision is likely here to stay.

Choctaw citizen and former U.S. Attorney for the Northern District of Oklahoma Trent Shores said there is a different justice on the court since the 5–4 decision in July 2020. Conservative Amy Coney Barrett replaced the late liberal justice Ruth Bader Ginsburg.

"But, you know, we have seen this makeup of the Supreme Court decide an Indian case, and it was a 9–0 decision, a unanimous decision in favor of recognizing a tribe's sovereign ability to protect its inherent governmental powers," Shores said.

That case is United States v. Cooley, decided in June. The court held tribal governments and, therefore, their police officers can stop and search non-Indians traveling through reservations on public highways.

Shores said civil impacts of McGirt have not been fleshed out, because the decision dealt only with criminal jurisdiction. Shores said another matter left to resolve is whether Native Americans convicted in state court of crimes on tribal lands before July 2020 should be retried in the correct venue. State convictions were being thrown out until the Oklahoma Court of Criminal Appeals decided earlier this month McGirt is not retroactive.

"From the Oklahoma Court of Criminal Appeals decision, we know that the floodgates have been closed for the moment, but it remains to be seen whether or not the Supreme Court will overturn that decision and reassert that it does have a retroactive impact," Shores said.

Oklahoma Attorney General John O’Connor has filed a brief in a separate case before the U.S. Supreme Court that asks them to decide whether McGirt is retroactive.