Supreme Court ruling expanding Indian lands looms over Oklahoma House GOP fight

A 2020 ruling by the Supreme Court deeming the eastern half of Oklahoma Native American land looms over a heavily contested Republican primary in the state's 2nd Congressional District.

The seat is being vacated by U.S. Rep. Markwayne Mullin after his decision to run for the U.S. Senate, making it the only one of the state's five congressional districts that won't feature an incumbent in the race. Republican Gov. Kevin Stitt is also running for reelection and has urged the Supreme Court to limit the 5-4 McGirt v. Oklahoma decision as the high court is slated to hear arguments in a case next week to determine "whether a State has authority to prosecute non-Indians who commit crimes against Indians in Indian country."

A total of 16 candidates filed to run for Mullin's seat before the deadline on Friday. Only one Democrat filed for the post in the deeply red state. One notable candidate is former state GOP Chairman John Bennett, who announced his run for Congress last month and resigned from his post this week in an effort to focus on his election bid.

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Bennett, a 47-year-old Marine Corps veteran, was a state representative from 2011-2019 and became GOP chairman in 2021. Now running for Congress, he's pushing for a return to former President Donald Trump's "America First" agenda. Bennett is also highlighting the importance of the 2nd Congressional District in the context of the 2020 McGirt decision.

"[Stitt] got stuck with this problem, and it's not even his problem," Bennett told the Washington Examiner Tuesday. "He's trying to do the best he can for the people of the state. Respect the sovereignty of the tribes, but at the same time, run the state and be fair to everybody and implement the rule of law."

Supreme Court Justice Neil Gorsuch, a Trump appointee who sided with four liberal justices on the high court at the time, signed the McGirt decision in 2020, ruling that the large eastern portion of Oklahoma has been reserved for the tribe since the 19th century and must remain "Indian country."

“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law,” Gorsuch wrote in 2020. "Because Congress has not said otherwise, we hold the government to its word."

Oklahoma's attorneys claimed at the time that the Muscogee (Creek) Nation’s historic territory is not a reservation and argued that siding with McGirt would be the "largest judicial abrogation of state sovereignty in American history."

In concurrence with the state's arguments, Bennett said Tuesday that "Congress needs to go back, and they need to de-establish the Muscogee (Creek) Nation reservation. I say once they do that, then they can carry on as they have, you know, all of these years."

"So when I get to Congress, this will be one of my priorities, because it hurts everyone in my district, tribal and nontribal. And this is something that Congress should fix," Bennett added.

The case was brought to the Supreme Court two years ago by Jimcy McGirt, a member of the Muscogee Nation who was convicted of raping a 4-year-old child in 1997. McGirt argued that the case should not have been in the jurisdiction of Oklahoma courts because the incident happened on tribal land.

"The only ones that are truly suffering are the ones that are trying to enforce the law and the victims," Bennett said. "It seems as if the perpetrators of these crimes are the ones that are truly getting away with some things."

Since the landmark decision, at least 235 inmates have been released from prison, 68 of whom were released to the street with no federal or tribal charges filed, though most were serving prison time over nonviolent or drug-related charges, according to state records. Of that number, more than 71% were charged in federal or tribal court or held on unrelated charges.

Stitt and the state's attorney general, John O'Connor, previously sought for the Supreme Court to consider overturning or limiting the scope of the McGirt decision, though the justices declined and opted to consider Oklahoma v. Castro-Huerta under one specific question.

The high court will hear arguments next week in the case of Castro-Huerta, which seeks to answer only whether the state has the authority to prosecute a non-Indian perpetrator who commits a crime against Indians in Indian Territory. The decision in the upcoming case could impact the court's future considerations for reexamining the 2020 case depending on the outcome.

Earlier this year, The Supreme Court reaffirmed that its limits to state jurisdiction over crimes committed on tribal reservations by or against tribal citizens aren’t retroactive, meaning formerly convicted offenders cannot seek retrial despite the McGirt decision, resolving a portion of the state government's issues with the ruling.

The Washington Examiner contacted representatives for the Muscogee Nation but did not receive a response.