Everything becomes a tax issue eventually, which is why you sometimes find fascinating historical sagas being worked over in tax litigation. The recent decision of the Oklahoma Supreme Court in Alicia Stroble’s dispute with the Oklahoma Tax Commission really shines in that regard. Ms. Stroble had claims for the years 2017, 2018 and 2019 that her income was exempt from state income tax. She believed she met all the requirements for the “Exempt Tribal Income Exclusion” being a member of the Muscogee (Creek) Nation. The tax commission argued that she did not qualify because she did not meet one of the requirements. In the commission’s view, she did not live in “Indian Country” even though she otherwise qualified. She lived on “unrestricted, non-trust, private fee land”.
On appeal Stroble argued that the commission’s holding was contrary to the 2020 Supreme Court decision McGirt v Oklahoma. The plaintiff in that case elicits much less sympathy than Ms. Stroble. Jimcy McGirt had been convicted of sex crimes by Oklahoma. His argument was that the Major Crimes Act held that the state could not prosecute him. The United States had exclusive jurisdiction as he was an Indian living in Indian country. The Court had to decide whether the part of Oklahoma where he resided was legally “Indian country”. The Supreme Court ruled that it was along with the rest of the eastern part of Oklahoma.
History
Justice Gorsuch opened the majority opinion in McGirt with a sentence that I understand has been much quoted: “On the far end of the Trail of Tears was a promise.” He goes on to describe that promise as assuring the Creek Nation that their new lands in the West would be secure forever in exchange for ceding all their land, east of the Mississippi River.
The Creek, or more properly Muscogee, along with the Cherokee, Chickasaw, Choctaw and Seminole were referred to by the United States government as the “Five Civilized Tribes”, a term which is out of favor nowadays. Signs of being “civilized” were Christianity, centralized governments, literacy, market participation and using enslaved Africans to work the land. Despite all that they found themselves unwelcome in parts of North Carolina, Georgia, Tennessee, South Carolina, Alabama and Mississippi where they had lived for centuries if not millennia. This was resolved with the Indian Removal Act of 1830 and the Trail of Tears which had that forever promise at the end of it.
If you look at a map of the United States from around 1880 you might see Indian Territory sandwiched between Kansas and Texas. A map from 1900 will show that area split into two pieces with Oklahoma Territory to the west and Indian Territory to the east. After 1907,it is the State of Oklahoma. On November 16. 1907 Charles N. Haskell was sworn in as the first governor of the state of Oklahoma. To celebrate a wedding ceremony was held joining Mr. Oklahoma and Miss Indian Territory to symbolize the new unified state.
So how can all that area still be reservations? Only Congress can end reservation status and Gorsuch takes us through a lot of history that concludes with:
“But whatever the confluence of reasons, in all this history there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation. In the end, Congress moved in the opposite direction.”
Oklahoma Supreme Court Majority Opinion
The McGirt decision was about the Major Crimes Act, which denies state jurisdiction to certain crimes committed by Indians in Indian country. When it came to what further implications the revived reservations might have, Judge Gorsuch waved his hands.
“Finally, the State worries that our decision will have significant consequences for civil and regulatory law. The only question before us, however, concerns the statutory definition of “Indian country” as it applies in federal criminal law under the MCA, and often nothing requires other civil statutes or regulations to rely on definitions found in the criminal law.”
In the Stroble case, the Oklahoma Supreme Court has to face the potential for one of those significant consequences, specifically whether tribal members living and working in their “reservation” have to pay state income taxes.
“The United States Supreme Court’s declaration—113 years after statehood—that nearly half of Oklahoma is a reservation is unprecedented. To date, the United States Supreme Court has not extended its ruling in McGirt beyond the Major Crimes Act. To date, the United States Supreme Court has not extended its ruling in McGirt to the State’s civil or taxing jurisdiction. And it is not this Court’s place to do so.”
There is an indication that there is a lot of different thinking going on here. The main opinion is “per curiam”, i.e. not identified to one judge. Then there are five separate concurrences and a dissenting opinion.
Chief Justice Rowe agreed that, it was not up to the Court to extend the McGirt decision to civil or taxing jurisdiction. He noted, however, that the Oklahoma Tax Commission uses the Major Crimes Act definition of “Indian country” in its regulation. Ms. Stroble’s claim though is for the years 2017-2019 and the US Supreme Court decision in McGirt was not retroactive. This strikes me as kicking the can down the road, with maybe a nudge to the Commission to change its regulation.
He explicitly disclaims the notion that the claim should be disallowed using the equitable doctrine of laches, acquiescence and impossibility. That is a little lawyerly for me, but the notion would be that native people can’t go bringing this up after having gone along with the way things have been done since Mr. Oklahoma married Miss Indian Country in 1907. He writes:
“Relying solely on the passage of time to bar Ms. Stroble’s claim would write another chapter in our history reflecting that equity has not weighed in favor of Native Oklahomans.”
He then quotes Chitto Harjo, Muscogee traditionalist, who in 1906 speaking to US Congressmen in 1906 said:
“He told me that as long as the sun shone and the sky is up yonder these agreements will be kept. . . . He said as long as the sun rises it shall last; as long as the waters run it shall last; as long as the grass grows it shall last. . . . He said, `Just as long as you see light here, just as long as you see this light glimmering over us, shall these agreements be kept, and not until all these things cease and pass away shall our agreement pass away.’ That is what he said, and we believed it. . . . We have kept every turn of that agreement. The grass is growing, the waters run, the sun shines, the light is with us, and the agreement is with us yet, for the God that is above us all witness that agreement.”
The rest of the concurrences are more technical though no less fascinating.
Oklahoma Supreme Court Dissent
Three judges dissented.
“The outcome in this particular matter is mandated by the U.S. Supreme Court’s definition of “Indian country” in its precedents regarding state taxation of Native American tribes and tribal members. As previously mentioned, this Court is duty-bound under both the U.S. Constitution and Oklahoma Constitution to honor federal treaties and statutes governing relations with Native American tribes, as well as the case law interpreting them. It is Congress that has set the terms under which Native Americans live, the U.S. Supreme Court that has shaped the interpretation of those terms, and the U.S. Department of Interior’s Bureau of Indian Affairs that has managed the day-to-day interactions with the Tribes. Indeed, Oklahoma was required to disclaim jurisdiction over Native Americans at statehood.”
Possibility Of Appeal
I spoke with Michael Parks, the attorney representing Ms.Stroble. He told me that while he and his clients respect the decision of the Oklahoma Supreme Court they are considering appeal to the US Supreme Court or another federal court. They are requesting that the Oklahoma Supreme Court stay the effect of its decision until they have decided on whether to appeal. He indicated that there may have been an over focus on McGirt and that there are other important Supreme Court opinions that support their position such as McClanahan v, Arizona State Tax Commission.
How Will US Supreme Court Rule?
If the tax issue flowing out of McGirt goes to the US Supreme Court, the difference in the court composition is Amy Coney Barrett replacing Ruth Bader Ginsburg. McGirt was decided by the then four “liberal” judges joining with Neil Gorsuch. Justice Barrett voted with Gorsuch in upholding the Indian Child Welfare Act and is similarly devoted to textualism, so the ruling might go in favor of Stroble.
Reactions And Commentary
Oklahoma Governor Kevin Stitt released a statement.
“This is a big win for the future of Oklahoma. From day one, I’ve fought to make sure every Oklahoman is treated equally.
Tribal governments, liberal groups, and some elected officials have pushed for special tax exemptions that would create a two-tiered system — one set of rules for tribal citizens and another for everyone else. That’s wrong. It would divide our state and weaken the public services every family relies on.
This ruling makes it clear that attempts to expand McGirt into civil and tax matters have no basis in the law. We are one Oklahoma. And as long as I’m Governor, we aren’t going backwards.”
Governor Stitt is a citizen of the Cherokee Nation. He has generated a lot of controversy by seeking to have the tribes give the state of Oklahoma a larger share of casino revenue.
Muscogee Nation Principal Chief David W. Hill made a statement:
“The Muscogee Nation is disappointed in the Oklahoma Supreme Court’s ruling today in Stroble v. Oklahoma Tax Commission departing from well-settled law originally recognized by the United States Supreme Court over 50 years ago and that is inconsistent with the State’s own administrative tax rules. Ever since the McGirt ruling, we have seen Oklahoma state courts go through legal gymnastics to come up with results that are not in compliance with federal law and that do not even follow pre-McGirt state court precedent on the limits of state authority in Indian country. The Stroble ruling is another sad example of those antics. We know that this ruling could have broad implications for Indian Country, so we are carefully reviewing the decision with our legal team and preparing for the next steps. While it is important to remember that the Muscogee Nation cannot provide legal advice on individual tax cases to citizens, the Nation will remain diligent in coordination and communication of what our response will be.”
Cherokee Nation Principal Chief Chuck Hoskin Jr. issued a similar statement which included the following comment:
“It’s unfortunate that Governor Stitt continues to mislead Oklahomans by describing this case as tied to ‘race-based tax exemptions.’ That’s simply not true – it’s about respecting the law and long-established precedent.”
Although there is quite a bit of Oklahoma coverage of the decision, I have not found anything national. Not being a regular reader of Oklahoma newspapers I discovered it trolling through Google Scholar. The most thorough discussion of the case that I found was “Stroble decision: OK Supreme Court rejects income tax appeal, declines to extend McGirt to civil law.” by Tristan Loveless.
The Oklahoma Society of CPAs issued a case study of the opinion. Included in the practical advice is to “Consider maintaining all pending claims until all potential appeals of the Stroble decision have been exhausted. It is mentioned in the decision that there were more than 11,500 claims like Stroble’s.
About McGirt
This is a kind of side note to a really long post, but I always get curious about what happens to people who get their names on really important Supreme Court decisions. Jimcy Mcgirt was sentenced to a 30-year federal sentence on one count of Aggravated Sexual Abuse in Indian Country in 2024. He was freed because he had already served than much time on the state life sentence. On April 9, 2025 he was indicted for failure to register as a sex offender. On June 24, 2025 McGirt entered a guilty plea and is awaiting sentencing.