The Oklahoma Court of Criminal Appeals' recent decision on Thursday marks a significant step in the ongoing legal disputes following the McGirt v. Oklahoma ruling and its aftermath. The court ruled that the City of Tulsa retains criminal jurisdiction over non-member Indigenous defendants for offenses committed within Indian Country reservations, citing the state's sovereign interest in public safety and criminal justice. Of course, while the decision gives credence toward cementing the state of Oklahoma's authority over tribal nations and its citizens, it tears at the very fabric of tribal sovereignty.
This ruling applies the Bracker balancing test - a controversial legal framework used to weigh the interests of state, tribal, and federal governments - further developing the implications of the 2020 McGirt decision and the 2022 Oklahoma v. Castro-Huerta ruling. This marks the first time the state's highest court used the Bracker balancing test to answer a question arising from the U.S. Supreme Court's ruling in McGirt.
The McGirt decision had affirmed that much of eastern Oklahoma is Indian Country, limiting the state's criminal jurisdiction over tribal members and crimes involving tribal citizens. Castro-Huerta, however, restored the state's authority to prosecute non-Indians for crimes against Indians in Indian Country, which the court here extended to traffic offenses as well.
In this case, Tulsa police arrested Osage citizen Nicholas Ryan O'Brien for DUI in 2021. The initial dismissal of his charges was based on the McGirt decision, but the Oklahoma Court of Criminal Appeals overturned the dismissal and directed the case back to the lower court for further proceedings. The majority opinion from Judge Robert Hudson emphasized that the state's jurisdiction over traffic offenses within Indian Country is not preempted by federal or tribal law.
"For the reasons discussed below, we find that the City of Tulsa's criminal jurisdiction to prosecute O'Brien for DUI, and the other related traffic offenses in this case, was not preempted under federal law or by principles of tribal self-government," Judge Robert Hudson wrote in the majority opinion.
However, the decision was not unanimous. Some judges on the court suggested broader application of the ruling to all Indigenous defendants within Indian Country, while others, such as Judge David B. Lewis, dissented. He argued that the state's jurisdiction over crimes committed by Indians in Indian Country is not established by federal law unless explicitly granted by Congress and that Castro-Huerta did not create new jurisdictional grounds.
The decision by the court suggests that prosecuting non-member Indians for misdemeanor offenses does not infringe on tribal sovereignty or authority, especially when the offenses occur in public spaces outside the tribe's direct regulatory control. The court emphasized that public safety and the role of state law enforcement in maintaining order were significant factors in allowing Tulsa to assert jurisdiction.
This ruling, and others like it, underscores the continued tensions between federal, state, and tribal authorities regarding jurisdiction in Indian Country - particularly concerning crimes committed by Indigenous individuals -and marks a notable departure from previous interpretations of jurisdiction in Indian Country, as established by McGirt. The decision will likely be appealed, and its implications could eventually be addressed by the U.S. Supreme Court.
In Duro v. Reina (1990), a significant but often overlooked case in the broader context of Indian law and jurisdiction, the U.S. Supreme Court held that tribal courts do not have jurisdiction over crimes committed by non-member Indians on tribal lands. This ruling, while not as widely recognized as McGirt or Castro-Huerta, plays a critical role in understanding the jurisdictional dynamics in cases like Tulsa v. O'Brien.
In Duro, the Court ruled that the tribe lacked criminal jurisdiction over a non-member Indian who was not a member of the tribe and committed an offense on tribal land. The decision was based on the principle that tribal sovereignty is limited to the jurisdiction over their own citizens, not over non-member Indians. This decision had a significant impact on tribal jurisdictional authority, especially regarding criminal offenses involving non-member Indians.
The fact that O'Brien, in Tulsa v. O'Brien, is an enrolled member of a tribe but not a citizen of the Muscogee Nation, is crucial in this case. His status as a non-citizen of the Muscogee Nation, despite being Native American, means that his situation does not fall neatly under tribal jurisdiction. This aspect aligns with the reasoning in Duro, where the Court distinguished between tribal citizens and non-member Indians in terms of jurisdiction. In O'Brien, the court used this distinction to allow Oklahoma to assert jurisdiction over crimes committed by a non-citizen member of a tribe on the Muscogee Reservation.
The Oklahoma Court of Criminal Appeals ruling relies heavily on Duro, specifically calling into question O'Brien's non-member status several times in their determination.
Thus, Duro v. Reina is a key precedent that frames the ongoing debate about the extent of tribal sovereignty, especially when it comes to jurisdiction over non-member Indians.
In Tulsa v. O'Brien, the ruling is a demonstration of how tribal jurisdiction can be viewed as not absolute and superseded by state jurisdiction in certain cases - especially when the individual involved is not a citizen of the tribe and the offense involves public safety concerns. Still, there are questions left unanswered and surely there will be decisions in the future that change how tribal nations broach those decisions. For now, Oklahoma gains ground, and tribal sovereignty loses, yet again - or so it would appear on the surface based solely on the majority decision. Of course, the majority decision does little in consideration of what is known as the Duro fix, a law later passed by Congress to remedy the jurisdictional gap issues.
25 U.S.C. § 1301 (2). States: "powers of self-government" means and includes all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including courts of Indian offenses; and means the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.
In other words, an Indian is still an Indian no matter what reservation boundaries the individual resides in. The statute all but wipes away any ambiguity in the Duro decision regarding "non-member" status.
In his scathing dissent, Judge Lewis noted that he believed the majority decision was, "meant to touch the heart of tribal self-government if it can, for it reads Castro-Huerta, et all, to authorize the City's infringement of perhaps the most central principle of tribal sovereignty: the right of Indians to make and enforce their own laws and remain free from a state's criminal agents, prosecutors, and courts unless expressly approved by Congress."
Judge Lewis points towards those questions yet to be answered and highlights that this decision is yet another, that will be reviewed and scrutinized by the United States Supreme Court.
"In sum, the Court today prefers the illusion of jurisdictional complexity to the clear implications of McGirt and the longstanding principles of tribal sovereignty," said Judge Lewis. "If all of this was the intent of the Supreme Court's second footnote to Castro-Huerta, I shall wait to hear them say it. I respectfully dissent."
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