Can Oklahoma prosecute Indians for crimes against non-Indians in tribal territory? I’m Tulsa Attorney James Wirth. That is the question that we have today. It is a question that arises from a recent decision by the Oklahoma Court of Criminal Appeals. That is in the case of State v. Brester, 2023 OKCR 10.
And that is another case coming out of the United States Supreme Court decision of McGirt that raised all of these different issues. And in that case, a couple of issues they had to decide is whether the reservation, Ottawa Tribe Reservation and Peoria Tribe Reservations are disestablished or still intact. They ultimately determined that they are intact.
However, the court in its majority opinion went a step further and said, although those are intact and therefore the state of Oklahoma lacks jurisdiction to prosecute, because in this case, the victim of the alleged crimes is non-native, there may be an argument that the state retains current jurisdiction to prosecute an Indian for a crime against a non-Indian.
Concurrent Jurisdiction and the Castro-Horta Decision
Now, they’re prefacing this and they’re basing this on the United States Supreme Court decision of Castro-Horta. And in that case, the court found that the state of Oklahoma does have concurrent jurisdiction to prosecute non-Indians who commit crimes against Indians in tribal territory. Now, the court is suggesting somehow the reverse might also be true.
So rather than dismissing these charges because there’s no jurisdiction, which ultimately they did, they also gave the state of Oklahoma 60 days to file a request to have an evidentiary hearing on whether, or to have a full-blown hearing on whether those factors determined in Castro-Horta might be applied almost in the reverse to see if the state still has jurisdiction where it is a non-Indian victim.
However, there’s not a lot of authority for that. It actually doesn’t make a lot of sense, but we’ve seen a lot of bending over backward trying to save state sovereignty in these types of cases from the Oklahoma Court of Criminal Appeals, like the reversal that we saw in the Wallace decision and the appeal by the state of Oklahoma to the United States Supreme Court in Castro-Horta.
But not everybody on the Oklahoma Court of Criminal Appeals was in agreement on that. So we’ve actually got some pretty stern language in a dissent, and that dissent, I can pull that language for you, but let me give you some language from the main majority decision.
Opinions and Legal Analysis
It says, the court did not undertake any jurisdictional analysis of the BRCA factors with respect to the state’s ability to prosecute crimes under the General Crimes Act committed by an Indian against a non-Indian in Indian country. Because the state has jurisdiction to prosecute crimes committed in Indian country, unless state jurisdiction is preempted, Castro-Horta leaves unresolved whether the state’s jurisdiction to prosecute Indians for crimes under the General Crimes Act in Indian country has been preempted.
So they’re suggesting, and the state of Oklahoma didn’t make this argument. And it’s a little bit frustrating from the defense side when the Oklahoma Court of Criminal Appeals tries to throw a bone and say, hey, state, I’ve got some additional arguments that you should make. When most of the time on the defense, they use every opportunity they can to find waiver of any potential thing they didn’t raise.
Well here, they’re trying to come up with new arguments for the state to make and suggest that they should make them, and in fact, have stayed their opinion, dismissing the charges, to give them 60 days to do so. But nonetheless, you can see some information from the dissent from Lewis with regard to this decision.
It says, the court’s invitation to the state to advance this novel theory of concurrent jurisdiction over Indians in Indian country is injurious to foundational and longstanding principles of tribal sovereignty. The court’s indulgence for such arguments on remand is both unnecessary and unwise.
The Current State of the Law
So that is not my opinion there. That is the opinion from Judge Lewis on the Oklahoma Court of Criminal Appeals in his dissent to this majority decision. But if we come down to the ultimate topic that we’re talking about today, is can Oklahoma prosecute Indians for crimes against non-Indians on reservation land? The answer right now, according to the Oklahoma Court of Criminal Appeals, is up in the air.
However, from my perspective and my legal analysis, I don’t think the state of Oklahoma does. I do think it’s definitely preempted. But with McGirt, we’ve seen all kinds of decisions that rewrite the rules, that redefine phrases and legal factors. So I would not be horribly surprised if it was decided differently, but that is the state of law at this point.
Obviously, you’re dealing with the circumstances. You’re gonna want more than these vague information and notions for the video. You’re gonna want legal advice, which can only be attained by meeting with an attorney privately and confidentially, talking about your specific circumstances.
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To get something like that scheduled with an Oklahoma criminal defense lawyer at my office, you can go online to makelaweasy.com. We offer free consultations to discuss your case and provide personalized legal guidance.