A Civil Application of McGirt: What Could this Mean for Tribes?
By Lauren Burden

In McGirt v. Oklahoma, the U.S. Supreme Court held the Muscogee Creek lands were a reservation for purposes of the Major Crimes Act.[1] Specifically, this means that only the federal and tribal governments are allowed to try tribal members in court for criminal matters, not the state of Oklahoma.[2] States, however, are still allowed to prosecute non-Indian on non-Indian crimes within Indian country.[3] In holding this, the Court confirmed the Muscogee Creek Nation’s reservation “remains ‘Indian Country’”[4] and that once Congress creates a reservation, only Congress can disestablish it.[5]

But why is this important, and why do we care? By establishing that only Congress can make or break reservation status, McGirt validates the continued existence of the Muscogee Creek’s reservation––and their tribal self-governance[6]––even though Oklahoma has historically acted otherwise.[7]

A year later, in 2021, the Oklahoma appellate court applied this same analysis and extended reservation status to other tribes in State ex rel. Matloff v. Wallace and Grayson v. State. Matloff confirmed the continued existence of the Chickasaw, Choctaw, and Cherokee reservations,[8] while Grayson confirmed the Seminole reservation.[9] Other Tribes, such as the Miami, Ottawa, Wyandotte, Quapaw, and the Peoria, have also had their reservation status recognized.[10] This gave some tribes hope that their right to tribal self-governance would continue to be acknowledged, but the State of Oklahoma became fearful about future implications these rulings could create.[11]

Before tribes could get too excited, another case impacting Indian Country was decided in favor of the state of Oklahoma. In 2022, the 5–4 U.S. Supreme Court decided in Oklahoma v. Castro-Huerta that the State did have concurrent jurisdiction with the federal and tribal governments to prosecute non-Indian against Indian crimes in Indian Country after all.[12] The Court reasoned that State criminal jurisdiction in Indian Country stems from Indian Country being part of the state of Oklahoma.[13] Additionally, it reasoned that state jurisdiction is only preempted by explicit federal prohibition or by the state “unlawfully infring[ing] on tribal self-government.”[14] The Court noted the State’s exercise of criminal law could implicitly include the exercise of civil law in Indian Country.[15]

So why can’t McGirt also implicitly extend to civil matters and acknowledge tribal self-governance over civil violations within Indian Country? To answer this, one must first look to the civil limitations facing Indian Country today.

Tribal Courts used to have exclusive jurisdiction over “claims that arise in Indian Country [and] implicate Indian interests.”[16] In Williams v. Lee, the Court reasoned that allowing state jurisdiction over Indian Country would infringe on Indians’ right to govern themselves.[17] However, while not officially overturned, this idea was chipped away and replaced by the Court’s decision in Montana v. U.S.

In Montana v. U.S., the US Supreme Court held that Tribes do not have jurisdiction over non-Indians on reservation fee land (owned by non-tribal members) because regulating non-Indian hunting and fishing “bears no clear relationship to tribal self-government. . . [or] threatened the Tribe’s political or economic security as to justify tribal regulation.”[18] Because the Court did not consider the Tribe’s self-governance or integrity threatened, this meant that the Crow Tribe’s inherent sovereignty was limited regarding non-members on fee lands.[19] However, this case did establish some exceptions under which Tribes can hold non-Indians in tribal court for civil offenses.

Tribes retain inherent sovereign power to hold non-Indians in court for civil offenses for only two reasons. One, if the non-Indian entered a consensual relationship through commercial dealings (contracts, leases, etc.), then their activities can be tribally regulated via taxation, licensing, or other means.[20] Two, if a non-Indian’s conduct threatens or has a direct effect on the Tribe’s “political integrity, economic security, or health and welfare of the tribe” then the Tribe can exercise civil authority over them.[21] If either of these conditions is met, then a tribe may exercise its jurisdictional authority over a non-Indian. If we applied the Montana test to a tribe in Oklahoma, they would have to prove one of these two exceptions currently exists before they can exercise their tribal authority over a non-Indian to protect their people.

Hypothetically, let’s say there is a non-Indian upstream from the Choctaw Nation headquarters (located in Durant, Oklahoma) that is polluting the river with chemicals and runoff from their farm. This non-Indian lives within what is recognized now as the Choctaw Nation Reservation. Let’s say the Choctaw Nation has strict water pollution standards to ensure tribal health and safety via access to clean water. Under the Montana test, the Tribe must prove that this polluter either contracted with the Tribe (unlikely since the polluter seems to be a farmer that just lives in the area) or that they have threatened the Tribe politically, economically, or their communities’ health and welfare. The Tribe could argue that river pollution affects their drinking water, impacting tribal members’ health and welfare; therefore, the Tribe should be able to regulate water pollution within its reservation. However, the polluter could argue that the amount of pollution falls within the federal standards under the Clean Water Act, and therefore, even if he is violating Tribal regulatory law, he is within federal compliance, so Tribal law should not apply. This would then likely turn into very expensive litigation over whether the pollution really affects the tribe’s health and welfare. In contrast, under a civil application of McGirt, the Choctaws would be able to enforce their civil regulatory pollution standards without needing to prove tribal members are actually negatively impacted by the pollution. Therefore, a civil application of McGirt could allow Tribes to maintain and exercise their tribal self-governance over civil matters within Indian Country without having to go through the Montana test.

A recent Oklahoma case, Stroble v. Oklahoma Tax Commission, asked the State’s Supreme Court to do just that: extend McGirt to civil and regulatory law.[22] Here, the court specifically declined to extend McGirt to income taxes because it claimed the U.S. Supreme Court limited McGirt to “criminal jurisdiction under the Major Crimes Act.”[23] It reasoned Justice Gorsuch, while trying to calm the State’s fears, stated the only question before them in McGirt concerns what Indian Country means in a criminal law context.[24] Therefore, the Oklahoma Supreme Court claims it is bound by that ruling and cannot extend McGirt to civil law.[25] However, Stroble has petitioned the U.S. Supreme Court for certiorari as of October 1, 2025,[26] so there may be an explicit answer to this question soon.

[1] McGirt v. Oklahoma, 591 U.S. 894, 899–938 (2020).

[2] Id. at 934.

[3] Id. at 933.

[4] Id. at 913.

[5] Id. at 903-04.

[6] Id. at 902.

[7] McGirt v. Oklahoma, 591 U.S. 894, 913–24 (2020).

[8] State ex rel. Matloff v. Wallace, 497 P.3d 686, 689 (Okla. Crim. App. 2021).

[9] Grayson v. State, 485 P.3d 250, 254 (Okla. Crim. App. 2021).

[10] Kirke Kickingbird, The Jurisdictional Landscape of Indian Country After the McGirt and Castro-Huerta Decisions, Hum. Rts. Mag. Jan. 2023, at 10.

[11] The Court addresses Oklahoma’s concern that this ruling would extend to civil and regulatory law by stating “The only question before us, however, concerns the statutory definition of “Indian country” as it applies in federal criminal law under the MCA,” McGirt, 591 U.S. at 935.

[12] 597 U.S. 629, 656 (2022).

[13] Id. at 637-38, 649.

[14] Id. at 636-39, 649.

[15] Id. at 637; see Kickingbird, supra note 10.

[16] Montana v. U.S., DOJ Env’t and Nat. Res. Div., https://www.justice.gov/enrd/indian-resources-section/montana-v-us (updated June 6, 2023).

[17] 358 U.S. 217, 219 (1959).

[18] 450 U.S. 544, 546 (1981).

[19] Id. at 564-65.

[20] Id. at 565.

[21] Id. at 566.

[22] Matter of Stroble, No. 120,806, 2025 WL 1805918, at *3 (Ok. S.Ct. 2025).

[23] Id. at *4.

[24] Id.

[25] Id.

[26] Matter of Stroble, No. 120,806, 2025 WL 1805918 (Ok. S.Ct. 2025), petition for cert. filed, 25-382 (U.S. Oct. 1, 2025).