Law, Community, and McGirt v. Oklahoma

6 Pages Posted: 8 Apr 2022 Last revised: 3 Jun 2022

See all articles by Robb Elton

Robb Elton

National University ; Northcentral University

Arthur Been

Hampton Law Office

Date Written: April 28, 2022


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.

Keywords: McGirt, McGirt v. Oklahoma, Muscogee Creek Nation, Subject matter jurisdiction, Indigenous history, Oklahoma history, Indian Law, Indian Country

JEL Classification: Z1, K14, N4, N51, N91, K33, K42

Suggested Citation

Elton, Robb and Been, Arthur, Law, Community, and McGirt v. Oklahoma (April 28, 2022). Available at SSRN: or

Robb Elton (Contact Author)

National University ( email )

9388 Lightwave Ave
San Diego, CA 92123
United States

Northcentral University ( email )

United States

Arthur Been

Hampton Law Office

United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics