In his petition seeking review, Mr. O’Connor asked the Supreme Court to address two questions: the one on prosecutions of non-Indians and whether the McGirt decision should be overturned.
In its order granting review on Friday, the Supreme Court said it would answer only the first question.
Writing for the majority in McGirt, which was decided by a 5-to-4 vote, Justice Neil M. Gorsuch said the court was vindicating a commitment that grew out of an ugly history of forced removals and broken treaties.
“On the far end of the Trail of Tears was a promise,” he wrote, joined by what was then the court’s four-member liberal wing. “Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever.”
In dissent, Chief Justice John G. Roberts Jr. predicted that the decision would cause chaos.
“The state’s ability to prosecute serious crimes will be hobbled, and decades of past convictions could well be thrown out,” he wrote. “On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.”
Justice Ruth Bader Ginsburg, who was in the majority, died a few months after the decision was issued. Justice Amy Coney Barrett has since filled her seat, raising the possibility that the court might be open to revisiting its ruling.
In urging the justices to do so, Mr. O’Connor wrote that “no recent decision of this court has had a more immediate and destabilizing effect on life in an American state than McGirt v. Oklahoma.” It has, he wrote, “pitched Oklahoma’s criminal justice system into a state of emergency.”