McGirt Explained: Why Some Oklahoma Tribes Have Reservations and Others Don't

In 2020, the U.S. Supreme Court issued one of the most significant Indian law decisions in decades: McGirt v. Oklahoma. The ruling sent shockwaves through Oklahoma's legal system—but most people still don't fully understand what happened or why it matters.

Here's the plain-English version: The Court held that the Muscogee (Creek) Nation's reservation was never legally dissolved. It still exists.

Since then, the same reasoning has been applied to the Cherokee, Chickasaw, Choctaw, Seminole, and Quapaw Nations. That means much of eastern Oklahoma—including most of Tulsa—is legally "Indian Country" for purposes of federal law.

But here's the part that confuses people: Not every tribe in Oklahoma has a reservation. So what's the difference?

What "Reservation" Actually Means

A reservation is land set aside by the federal government for a tribe's use. Reservations are created by treaties, statutes, or executive orders.

When Oklahoma became a state in 1907, the prevailing (and incorrect) assumption was that the tribal reservations in what had been "Indian Territory" were dissolved—absorbed into the new state. For over a century, Oklahoma operated as if those reservations no longer existed.

McGirt said that assumption was wrong. Congress never passed legislation disestablishing the Creek reservation. And under federal Indian law, if Congress didn't explicitly terminate a reservation, it still exists.

The "Five Tribes" and Their Treaty Reservations

The McGirt decision specifically addressed the Five Tribes: the Cherokee, Chickasaw, Choctaw, Muscogee (Creek), and Seminole Nations.

These tribes were forcibly relocated to Indian Territory (present-day Oklahoma) in the 1830s and 1840s via the Trail of Tears. They were promised their new lands "in perpetuity" through treaties with the United States.

After McGirt, federal courts applied the same logic to the other Five Tribes, confirming that their reservations also remain intact. These reservations collectively cover the eastern half of Oklahoma.

What About Other Oklahoma Tribes?

Oklahoma has 39 federally recognized tribes—not just the Five Tribes. Why doesn't McGirt apply to all of them?

Different Legal Status

Not all tribes have reservations. The legal status of a tribe's land depends on the specific treaties, statutes, and executive orders that apply to that tribe.

Some examples:

Tribes with Recognized Reservations

• The Osage Nation has a reservation (confirmed by Congress and the courts)
• The Quapaw Nation's reservation was confirmed post-McGirt

Tribes Without Traditional Reservations Many western Oklahoma tribes—like the Comanche, Kiowa, and Cheyenne-Arapaho—had their reservations allotted and opened to non-Indian settlement under the Dawes Act and related legislation. Courts have found these reservations were disestablished (legally dissolved) by Congress.

Tribes with Trust Land Only Some tribes have "trust land" (land held by the federal government for the tribe) but not a reservation in the traditional sense. Trust land is still "Indian Country" under federal law, but it's geographically limited to specific parcels.

The Disestablishment Analysis

Whether a reservation still exists depends on what Congress did. Courts apply a three-part test from Solem v. Bartlett (1984):

1. Statutory Language: Did Congress explicitly terminate the reservation?
2. Historical Context: What was Congress's intent at the time?
3. Demographics and Jurisdiction: How has the land been treated since then?

For the Five Tribes, the Supreme Court found no explicit disestablishment language. For some other tribes, courts have found that allotment acts and surplus land sales did disestablish reservations.

Practical Differences: Reservation vs. Non-Reservation Status

Criminal Jurisdiction

This was the issue in McGirt itself. On reservation land:

• Major crimes involving tribal members are prosecuted in federal court, not state court
• State courts generally lack jurisdiction over crimes committed by or against tribal members

For tribes without reservations, state courts typically have broader criminal jurisdiction.

Civil and Regulatory Jurisdiction

Reservation status affects which government—tribal, state, or federal—has authority over:

• Taxation
• Environmental regulation
• Business licensing
• Family law matters
• Civil disputes

Even on non-reservation land, tribes may exercise jurisdiction over trust land and tribal members.

Practical Impact for Residents

If you live in Tulsa, you live within the Muscogee (Creek) and Cherokee reservations. That doesn't mean tribal law governs your daily life if you're not a tribal member—but it does affect things like which court handles certain crimes, how businesses are taxed, and how the state and tribes interact.

If you live in Lawton (near the Comanche, Kiowa, and Apache tribes), the situation is different. Those tribes have trust land and jurisdiction within it, but broader reservation boundaries don't apply in the same way.

Why This Matters

McGirt wasn't about creating new tribal authority. It was about recognizing authority that legally existed all along but had been ignored.

For the tribes whose reservations were confirmed, it means:

• Greater criminal jurisdiction
• Stronger regulatory authority
• A more powerful position in negotiations with the state
• Federal funding that applies to "reservation" tribes

For tribes whose reservations were disestablished, the analysis is complete—those reservations are legally gone (though trust land remains Indian Country).

For tribes with unclear status, more litigation may be coming.

The Big Picture

Oklahoma has a unique history. It was literally "Indian Territory"—land promised to tribes after removal. The legal status of that land has always been complicated, and McGirt forced everyone to confront that complexity.

Some tribes have reservations. Some don't. The difference comes down to what Congress did—or didn't do—over the past 150 years.

We Handle Tribal Jurisdiction Questions

If you need to understand how tribal jurisdiction affects a legal matter—whether it's a criminal case, a business dispute, or a regulatory question—contact us. We work with tribal governments and individuals navigating these complex issues.