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McGirt v. Oklahoma – How Does the US Supreme Court’s Recent Decision Impact Federal Enclave Precedent as it Applies to Defendants in Asbestos Litigation

August 13, 2020Article

Recently, criminal defendant Jimcy McGirt, a Native American convicted for various sexual offences in Oklahoma state courts, appealed his convictions on the basis that as an enrolled member of the Seminole Nation of Oklahoma whose alleged crimes occurred on the Creek Reservation, Oklahoma state courts lacked jurisdiction and his case must be retried in federal court. Last month the Supreme Court agreed. McGirt v. Oklahoma, No. 18-9526, 591 U.S. ______ (decided July 9, 2020).

Mr. McGirt’s appeal rested on the federal Major Crimes Act (MCA) which provides in relevant part that a Native American who commits certain offenses against the person or property of another Native American or any other person shall be subject to the same law and penalties as any other person but within the exclusive jurisdiction of the United States. 18 U.S.C. § 1153(a). McGirt is a Native American and his alleged crimes occurred on the Creek Reservation. The main issue facing the court was not necessarily a purely jurisdictional one, but rather, whether Mr. McGirt’s crimes actually occurred on Native American tribal land. The Court determined that the land upon which the alleged crimes occurred was in fact part of the Creek Reservation and therefore McGirt’s alleged crimes occurred on Indian Land subject to federal courts and NOT the State Courts of Oklahoma.

For parties entangled in asbestos litigation nationwide, this case is of particular interest from a personal jurisdiction standpoint because the Court’s decision makes clear that where a case centers around actions taking place on federal land, those actions are subject to federal law and the jurisdiction of the federal courts. Notably, McGirt additionally reemphasizes and confirms that Congress and Congress alone has the power to change the boundaries of Native American reservations. That power belongs neither to the state in which the reservation lies nor that state’s courts. Put differently – when Congress declares a certain piece of land to be a Native American reservation, it remains so until Congress declares it no longer to be. The logical conclusion regarding federal land is obvious – only Congress may determine what is and is not federal land and it is not for an individual state or its courts to decide otherwise. “Disestablishment has ‘never required any particular form of words,’ but it does require that Congress clearly express its intent to do so.” McGirt v. Oklahoma

For our purposes this means that more often than not, where there is alleged asbestos exposure on federal land, the resulting action should be subject to the exclusive jurisdiction of the appropriate federal court. Often times in asbestos actions the alleged asbestos exposure took place entirely on a military base, ship building yard, or other location on land ceded to the federal government by the surrounding state. These ‘federal enclaves’ fall under the exclusive jurisdiction of the federal government. Arguably, this means that where a plaintiff’s alleged asbestos exposure occurred exclusively within that enclave, jurisdiction lies in federal court and not the state courts from the surrounding state. The McGirt decision would seem to bolster the argument that an action involving asbestos exposure in a federal enclave is subject to the exclusive jurisdiction of the federal courts and, therefore, not subject to the state court jurisdiction of the surrounding state. How this case is interpreted by those courts handling asbestos actions nationwide remains to be seen but based on the Court’s confirmation that actions occurring on federal land are subject to federal jurisdiction and that only Congress may change the boundaries of federal land, the jurisdictional impact would appear to be promising.


Authors: Erich Gleber (Of Counsel, New York), David E. Freed (Associate, New York)