Oklahoma Tax Commission opposes Supreme Court review of Muscogee tax case

This story was originally published by Gaylord News.

Emma Rowland
Gaylord News

Washington – The Oklahoma Tax Commission asked the U.S. Supreme Court to refuse giving a Muscogee Nation Citizen a pass on the $7,500 in back taxes the commission says she owes.

Alicia Stroble, in her petition for a writ of certiorari, claimed her income for the three years from 2017 through 2019 should be exempt from Oklahoma income tax under state regulations because she was living and earning income within Indian Country. 

The Oklahoma Tax Commission denied the exemption, arguing that for tax purposes, “Indian country” does not include unrestricted, private fee land, even if it sits within historic tribal boundaries. The Oklahoma Supreme Court, in a 6-3 vote, rejected extending McGirt beyond criminal jurisdiction.

“The question whether Oklahoma has the authority to tax the income of a member of the Muscogee (Creek) Nation who works on tribal trust land but lives on unrestricted, non-trust, private fee land within the boundaries of the historical Creek territory is an important one, but it does not warrant this Court’s review,” the tax  commission wrote in its brief. 

“The Oklahoma Supreme Court correctly answered that question in the affirmative; the decision below does not implicate any conflict in lower-court authority; and there is otherwise no need for this Court’s intervention,” it wrote.  

The case already is generating considerable interest among the nation’s tribes.  Stroble’s petition was joined by petitions filed by the Muscogee Nation, the Cherokee Nation, the Seminole Nation of Oklahoma and the National Congress of American Indians, United South and Eastern Tribes Sovereignty Protection Fund, Native American Finance Officers Association and the National Intertribal Tax Alliance.

Stroble works on tribal trust land but lives on “unrestricted, non-trust, private fee land,” which was historically part of the Creek Reservation recognized as “Indian country” under McGirt v. Oklahoma. McGirt involved the Major Crimes Act, which gives federal courts exclusive jurisdiction over certain crimes “committed by an Indian against another Indian or non-Indian in Indian country.” 

The central issue in McGirt was whether the crimes occurred in Indian Country, because state courts generally cannot prosecute Indians for conduct in such areas. The U.S. Supreme Court reversed the Oklahoma Court of Criminal Appeals, holding the state lacked jurisdiction.

In the 2020 decision Justice Neal Gorsuch wrote that, while the state feared civil and regulatory consequences, “the only question before us…concerns the statutory definition of ‘Indian country’ as it applies in federal criminal law under the MCA,” noting that civil statutes or regulations are not automatically governed by criminal law definitions. 

The dissent, authored by Chief Justice Roberts and joined by Justices Alito, Kavanaugh and Thomas, warned that the ruling “creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”

In her petition, Stroble cited McClanahan v. State Tax Commission, in which the Supreme Court held that Arizona could not tax the income of a Navajo Nation member who lived and worked on the reservation. The Oklahoma Tax Commission responded that McClanahan addressed trust land, and no Supreme Court case has ever held that tribal members living on private fee land are exempt from state taxes.

The tax commission brief also cited equitable principles from City of Sherrill v. Oneida, which held that even if land once belonged to a tribe, tribal sovereignty cannot be automatically restored after centuries of state control. The state argued that Stroble’s claim would effectively revive sovereignty over land long governed by Oklahoma, which undermines her claim for tax exemption.

The Oklahoma Tax Commission’s brief concluded that the Oklahoma Supreme Court correctly resolved the matter. Under the 10th Amendment, the state has broad authority to tax residents and non-residents earning income within its borders. No federal law clearly preempts that authority or prohibits taxation of tribal members living on non-trust private land.

The brief also noted that Stroble repeatedly argues the decision conflicts with McGirt, but the Supreme Court in that case addressed only “the statutory definition of ‘Indian Country as it applies in federal criminal law.” 

Even if the Court grants review, it would not need to resolve the full scope of McGirt to affirm the lower court’s decision, which is limited to “the narrow issues of criminal jurisdiction under the Major Crimes Act.” The brief further suggested that revisiting McGirt as a whole is unnecessary and that the practical challenges predicted in that case have already occurred.

Under Supreme Court Rules the case will be submitted to the justices sometime after Dec. 15 for a decision on whether the Court will take the case for review.

Gaylord News is a reporting project of the University of Oklahoma Gaylord College of Journalism and Mass Communication.  For more stories by Gaylord News go to GaylordNews.net.