(Update: On Monday, Oct. 6, the U.S. Supreme Court denied Marvin Keith Stitt’s petition to review his traffic ticket case, which is discussed in the second section of this story. The following article remains in its original form.)
Starting an appeal that could have ramifications across Indian Country, Muscogee National Council Secretary Alicia Stroble filed a petition for a writ of certiorari on Monday asking the U.S. Supreme Court to overturn an Oklahoma Supreme Court ruling that found her subject to state income taxation despite longstanding federal case law.
In July, Oklahoma’s highest civil court declined to extend the implications of the U.S. Supreme Court’s McGirt v. Oklahoma decision, which directly involved the Major Crimes Act and criminal jurisdiction, to taxation or other issues of civil law. While the McGirt ruling functionally affirmed eastern Oklahoma as a series of Indian Country reservations where only tribes and the federal government have jurisdiction to prosecute tribal citizens, uncertainty over matters of civil jurisdiction has lingered.
The Muscogee (Creek) National Council approved funding for Stroble’s federal appeal Aug. 23, and on Monday she asked the U.S. Supreme Court to review her case.
“Asserting that McGirt’s recognition of the Creek Reservation was ‘unprecedented,’ [Oklahoma’s] high court ruled that McGirt should not be given effect ‘beyond the Major Crimes Act,” Stroble’s attorneys wrote. “That was error. McGirt interpreted and applied a statute that defines the statutory term ‘Indian Country.’ McGirt acknowledged that the definition can matter in civil contexts as well as in criminal ones. And one such civil context is ‘the special area of’ taxation, where the court’s cases constrain states’ taxing power over tribal citizens within the Indian Country identified in Section 1151.”
Generally, state governments do not have the authority to tax the income of a tribal citizen who lives on their tribe’s reservation and derives their money from tribal sources — which generally means income from working for the tribal government or income earned from restricted allotments — under the Supreme Court’s 1973 ruling in McClanahan v. Arizona State Tax Commission.
After the McGirt decision affirmed the Muscogee Reservation, Stroble appealed her prior payments of Oklahoma income tax, arguing she was exempt because as a Muscogee citizen who lived within the Muscogee Reservation and worked for the tribe’s government. When her application was denied by an Oklahoma Tax Commission employee in February 2021, she appealed the decision. Judge Ernest Short, an administrative law judge, recommended that the OTC grant her the exemption in April 2022. But his decision was overruled by an order of the three OTC commissioners that October.
When Stroble appealed to the Oklahoma Supreme Court, justices’ per curiam majority opinion upheld the OTC’s decision but cited none of the U.S. Supreme Court’s prior Indian Country tax jurisdictions cases.
“McGirt declared the reservation status of the land at issue. The United States Supreme Court determined that because the land was reservation land, it constituted ‘Indian Country’ for purposes of the Major Crimes Act. Therefore, the state was without jurisdiction to prosecute certain crimes committed by an Indian on the reservation,” the majority opinion stated. “Stroble is asking this court to extend McGirt to civil and regulatory law — to find the state is without jurisdiction to tax the income of a tribal member living and working on the tribe’s reservation. This we cannot do.”
In her application filed Monday, Stroble’s attorneys noted that unless the U.S. Supreme Court agrees to hear the case, the door may be opened for other states to follow Oklahoma’s lead and assert their own tax jurisdiction over Indian Country.
“From McClanahan until the decision below, there was no serious question that states categorically cannot tax income earned by Indians living and working on their tribes’ Indian Country. But the Oklahoma Supreme Court’s decision disturbs the established understanding that state income taxation in these circumstances is impermissible,” Stroble’s attorneys wrote. “The decision thus creates intolerable uncertainty for tribes and tribal citizens who have long relied on this court’s ‘per se’ rule, while risking further conflict if other states seek to follow Oklahoma’s lead.”
If the U.S. Supreme Court declines to hear Stroble’s appeal, other states could try to cite the case as justification for collecting income tax from tribal citizens who live and work within their tribe’s reservation. If the high court accepts the petition and sides with Stroble, Oklahoma could be forced to extend the McGirt decision to other issues to civil law. If justices review the case and side with the Oklahoma Tax Commission, tribal citizens across the country who have been exempt from state income tax since the 1970s could lose their exemption.
As Stroble appeals, SCOTUS conferences on Keith Stitt case
While Stroble’s appeal was being filed Monday, the U.S. Supreme Court’s justices gathered in Washington for a scheduled conference on the petition for writ of certiorari filed by Marvin Keith Stitt, the brother of Gov. Kevin Stitt who is asking the nation’s high court to rule that the City of Tulsa had no right to adjudicate a speeding ticket he received because he is a citizen of the Cherokee Nation.
Brett Chapman, Keith Stitt’s attorney, is arguing the Oklahoma Court of Criminal Appeals also incorrectly applied the McGirt decision in his client’s case. After Stitt was ticketed by Tulsa Police Department officer within the Muscogee Reservation and sent to municipal court, he appealed, arguing the city lacked criminal jurisdiction over tribal citizens who commit crimes within the Muscogee Reservation.
In December, Oklahoma’s top criminal court found in a separate case that municipalities have criminal jurisdiction over “non-member” tribal citizens who commit crimes within another tribe’s reservation. The court later applied that case to Stitt and found the City of Tulsa had criminal jurisdiction over a Cherokee citizen who commits municipal crimes within the Muscogee Reservation.
With Stitt asking the U.S. Supreme Court to take his case, Tulsa’s attorneys opposed his petition, arguing the city was no longer “adversarial” to him because of a new settlement agreement signed by Mayor Monroe Nichols that cedes Tulsa’s criminal jurisdiction over tribal citizens in the Muscogee Reservation to the tribal court.
“The City of Tulsa and the Muscogee Nation have entered into a cooperative agreement and the city is no longer in a position adversarial to the Muscogee Nation’s exercise of sovereign authority to prosecute Indian defendants, including petitioner,” city attorney Jack Blair wrote in response to Stitt’s request. “Yet, rather than applying for post-conviction relief in municipal court based on the terms of the settlement agreement, petitioner has sought this court’s review of the broader jurisdictional question, over which the city and the Muscogee Nation have agreed to stop fighting. The question presented by this case is important, but the City of Tulsa is no longer in a position adversarial to the Muscogee Nation’s exercise of sovereign authority to prosecute Indian defendants, including the petitioner.”
Justices’ decision about Stitt’s petition could signal whether the current U.S. Supreme Court approves of Oklahoma state courts’ application of its decisions in McGirt v. Oklahoma and Oklahoma v. Castro-Huerta, which held that states have concurrent criminal jurisdiction over non-Indians who commit crimes against tribal citizens. Especially since the Castro-Huerta decision, Oklahoma courts have generally resisted a broad interpretation of McGirt in favor of a narrow one: that Oklahoma lacks criminal jurisdiction over crimes listed in the Major Crimes Act committed by Indians in Indian Country. Some Oklahoma district attorneys have pushed that envelope, however, resulting in the Muscogee Nation and the U.S. Department of Justice suing them.
The court could accept or deny Stitt’s petition within the next week, although justices are not required to make a decision on a specific timeline.
