Justice Neil Gorsuch

Photo: Erin Schaff/Zuma Press

Four dissenting Supreme Court Justices warned last year that the majority’s decision in McGirt v. Oklahoma would cause chaos in the Sooner State and beyond. Their warning is coming true in the underreported story of the year, as Justice Neil Gorsuch’s misguided opinion has created legal and economic havoc.

Justice Gorsuch, joined in 2020 by the Court’s four liberals, essentially said nearly half of Oklahoma—with 1.9 million people and most of Tulsa—might still be Indian country under treaties from the 1800s. The results have included overturned convictions all the way up to murder, with some criminals set free; tax protests; and rules on everything from zoning to fishing to marijuana put into doubt.

“In our opinion, this is the biggest issue that’s ever hit any state since the Civil War,” says Oklahoma Gov. Kevin Stitt, and he might be right. The state’s ultimate goal is to convince the Supreme Court to reverse McGirt, a 5-4 decision whose majority included Ruth Bader Ginsburg. Her replacement by Justice Amy Coney Barrett could make all the difference.

***

Justice Gorsuch’s ruling swept aside precedent and a century of reliance interests. On its own terms, McGirt was a criminal case about the historical boundaries of the Creek Nation. Yet it’s being taken as a broad invitation to expand tribal claims, and now the question is how to avoid real harm to Oklahoma and its residents.

One lawsuit, filed by Oklahoma in July, challenges the Interior Department’s disruptive view of McGirt. “Before this ruling,” the feds said in April, “it had been the position of the Federal government that the Muscogee (Creek) Nation Reservation had been disestablished.” But McGirt, in their view, stripped Oklahoma of authority to oversee surface coal mining and reclamation in Creek areas. The department pledged “an orderly transition” and asked state regulators to hand over records.

The Creek Nation’s boundaries include five coal-mining permits, according to Ken Wagner, Oklahoma’s Energy Secretary. If McGirt extends to Choctaw and Cherokee areas, that implicates another 47 or so permits. No mining is happening, he says, but sites are in “various stages of reclamation.” The legal limbo is alarming. “We’re hearing from mining companies right now,” Mr. Stitt told Interior Secretary Deb Haaland in June. “They thought that they were operating in the state of Oklahoma.”

The state’s court filing argues that McGirt is “explicitly limited to the application of federal criminal law.” This is the crucial issue: If the ruling goes further than that, where does it stop, especially if the logic for the Creeks applies to other tribes? State agencies weighing McGirt have written 200 pages raising potential problems. They make for a dizzying read.

Do Native businesses in the eastern half of Oklahoma have to follow state fire and building codes? Are tribal members immune from fishing and poaching laws? Can state medical boards discipline doctors? Are state licenses for medical marijuana valid?

It might seem speculative, but it’s bleeding into reality. “Indians living on their own Nation’s reservation whose income is derived wholly from on-reservation sources may be exempt from state income tax,” the Cherokees say. The state Tax Commission has “a number of protests pending,” its spokeswoman says, although details are “confidential until there is a final order.”

A company that owns a power plant outside Tulsa has sought a ruling on whether the county can legally tax “personal property within the territorial boundaries of the Creek Reservation.” The town of Winchester said it would sue to stop the Creeks from building a meat-processing plant and wastewater lagoon, which local leaders argue ignores not only environmental laws but also the area’s residential zoning.

Last year the Seminole Nation sent a letter to oil-and-gas producers in its area, asking for an 8% extraction tax. Oklahoma officials pushed back. “At this time,” Chief Greg Chilcoat clarified in January, “the Seminole Nation has not exerted taxation authority over nonmember oil and gas producers operating on fee simple land.” That phrasing seems to reserve a right to do so.

***

Gov. Stitt is a Cherokee member himself. “I’m proud of my heritage,” he says. “This has nothing to do with race. This is about fairness for all citizens.” Neighbors in Tulsa shouldn’t face different laws based on ancestry. Tribal elections, Mr. Stitt adds, aren’t limited to Oklahomans, putting Tulsans partially under the authority of Creeks all across the country. The uncertainty is huge. “No investment is going to come,” he says, “if you don’t have a common set of laws.”

Congress could pass a bill to disestablish the reservations, but Mr. Stitt doubts it will happen, since tribes in many other states would probably oppose setting such a precedent. Oklahoma could negotiate compacts with its tribes to resolve legal and regulatory issues, but the Governor doesn’t think they’re all interested in ceding sovereignty, and the state would still end up as a patchwork. That leaves the courts.

Oklahoma’s top criminal court changed course last month, saying McGirt “shall not apply retroactively to void a final state conviction.” It reinstated guilty verdicts that had been thrown out. This is a welcome step, but it doesn’t fix the problems McGirt is causing police officers and crime victims today, to say nothing of the myriad civil questions now up in the air.

The better answer, state leaders argue, is for the Supreme Court to await the right case to overturn McGirt. “I wouldn’t term it as ‘overturning,’” Mr. Stitt says. “I’m saying, go back to the way Oklahoma’s operated since 1907, since Theodore Roosevelt and Congress established us as a state. You can’t throw out a 115-year history.”

Wonder Land: Following the terrorist attacks on Sept. 11, 2001, it became commonplace to say, “9/11 changed everything.” But in reality it is politicians who have changed everything, and in doing so, not made a better, safer America. Images: AFP/Getty Images Composite: Mark Kelly The Wall Street Journal Interactive Edition