Tribal sovereignty is an issue that has been the subject of debate for many years in Oklahoma, and throughout the whole country. Indian tribes have always asserted their right to tribal sovereignty, which includes an independent tribal government and the ability to follow and apply tribal law in independent courts. However, up until very recently, Oklahoma state courts continued to assert jurisdiction over Indian affairs within Native Land.
In the 2020 Supreme Court ruling of McGirt, it was held that Oklahoma did not have the Subject Matter Jurisdiction to try Native Americans for crimes that occur on tribal land. As a result of this decision, tribal jurisdiction has been restored to Tribal Nations and the Oklahoma state courts do not have criminal and civil jurisdiction over tribal affairs within Indian Country. As such, the state is not permitted to bring criminal charges against you for crimes that occur within tribal land.
If you are a Native American person dealing with legal issues in a tribal court, such as criminal matters, family matters, or civil law issues, you should speak with an Oklahoma attorney that has experience with the tribal judicial system. Tribal law is a distinct law system from the state and your attorney needs to have specific knowledge of tribal courts and federal Indian law to help you with your case.
The lawyers at Palmer Law are highly experienced with tribal law cases and we can help you with any criminal law, family law, or civil issues that you need help with. Our managing attorney, Lloyd Brent Palmer is an enrolled citizen of the Chickasaw Nation and is qualified to handle tribal law cases for many tribes, including Chickasaw, Choctaw, Muscogee (Creek) Nation, Seminole, Cherokee, Citizen Potawatomi, and Cheyenne and Arapaho.
Explaining Tribal Jurisdiction
By definition, tribal jurisdiction is the power of a tribal government to exercise authority over criminal and civil matters that occur within their tribes. Essentially, when a tribe has exclusive jurisdiction over civil and criminal matters, they have the authority to deal with all of these legal issues themselves. When the state gets involved in tribal affairs and begins to prosecute Native Americans for crimes committed on their land, they are interfering in their sovereignty and jurisdiction.
In Oklahoma, tribal jurisdiction extends to all criminal matters that do not fall under the Major Crimes Act or a similar federal statute, civil issues that occur within Indian Country between Native American people, and most family law issues. As such, when crimes occur between Native American people on their land, or a civil dispute arises between Indian people, their case will be dealt with in a tribal court rather than a state court.
What is Indian Country?
Tribal jurisdiction applies mostly to Native American people living within Indian Country. There have been many objections by the state throughout the years to what classifies as ‘Indian Country’, leading to state jurisdiction being wrongly applied in criminal cases. Federal law statute 18 U.S.C. § 1151 defines Indian Country as:
“(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,
(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and
(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.“
The Supreme Court in McGirt held that because the Muscogee (Creek) Nation had not been disestablished by Congress it qualified as Indian Country and was subject to the jurisdiction of the tribal government. As a result of this decision, many more tribal nations were able to get jurisdiction restored to their land and now almost all of Eastern Oklahoma can exercise tribal jurisdiction over criminal and civil matters.
Tribal Criminal Jurisdiction
The criminal jurisdiction of tribal governments within Indian Country has been disputed for many years by Oklahoma state authorities. Previously, state criminal jurisdiction was applied to all citizens of Oklahoma, regardless of whether you were Native American and whether the crime occurred within Native land. This meant that many tribal members were charged and convicted of crimes in criminal courts and they were unable to follow their own judicial system.
However, in the landmark decision in McGirt v Oklahoma in 2020, the Supreme Court ruled in favor of Indian Country jurisdiction and held that tribal members who allegedly commit crimes within tribal land should be charged in a tribal court, and not a state court. As a result, criminal jurisdiction in Indian Country is exclusive to tribal communities and the federal government. This means that the state courts can no longer charge and convict American Indian people for crimes they allegedly commit on their own land.
When it comes to tribal criminal matters, the laws applied within the courts are separate from state laws, and they are based on federal Indian law, the Indian Civil Rights Act, and previous court decisions. Each court has a different set of rules and penalties depending on the particular tribe. If you have been charged with a crime under tribal law, it is important that you seek legal counsel from an attorney that has experience handling tribal criminal cases.
Tribal Civil Jurisdiction
Tribal governments in Oklahoma have exclusive jurisdiction over civil cases that occur between tribal members on tribal land. Civil matters can include family law issues, such as divorce, child custody cases, child support, guardianship, domestic violence orders, personal injury cases, and land issues. Tribal jurisdiction will also apply to civil cases between an Indian person and a Non-Indian person when the issue is related to or occurs in Indian Country.
In some cases, the tribal and state court may have concurrent jurisdiction over civil issues that involve a non-Indian and an Indian American, such as divorce. However, in general, civil jurisdiction is for the most part exclusive to tribal courts within Indian Country for Native people.
Does a Tribal Court Have Jurisdiction over Non-Indian People?
For the most part, tribal courts deal with legal matters that occur on tribal land between tribal people. However, there are some cases in which Non-Indian people may fall under the civil and criminal jurisdiction of a tribal court. In relation to criminal jurisdiction, the question has been brought to the United States Supreme Court (SCOTUS) on more than one occasion and has been a major subject of debate. After the SCOTUS decision in McGirt v Oklahoma, Non-Native Americans could be charged and convicted in a tribal court for committing a crime against a Native American person.
However, the Supreme Court has since ruled in Oklahoma v Castro-Huerta, 2022, that Non-Native Americans that commit crimes within Indian country against Indian people fall under the criminal jurisdiction of state courts. As such, you may be charged by a state criminal court if you commit a crime within Indian Country against a Native American person.
In relation to civil matters, such as family law issues and domestic cases, a tribal court may have jurisdiction over non-Indian people if the defendant in the case is a tribal member. Civil law issues that can be dealt with in a tribal court include divorce, child custody, guardianship, business contracts, and personal injury disputes. Jurisdiction in civil matters may be permitted in CFR Courts when the defendant consents to the personal jurisdiction of the court.
Jurisdiction of Federal Courts
There are certain federal statutes and laws that all citizens of the United States fall under the jurisdiction of, even within Indian Country. As such, the federal courts have jurisdiction over certain criminal matters that occur within tribal land between tribal members. The Supreme Court decision in McGirt solidified this jurisdiction by providing that the federal court has exclusive jurisdiction to charge federal crimes within Indian Country, separate from tribal courts.
The federal government has jurisdiction to charge and convict Native Americans of serious crimes under the Major Crimes Act, such as murder, manslaughter, kidnapping, felony assault, crimes against minors, and sex crimes. In addition, they have jurisdiction to prosecute crimes such as treason, financial crimes against the United States Government, and organized crime activities. Charges brought against Native Americans under federal law will be brought through a federal court by the government.
A tribal government still has jurisdiction to try individuals for crimes that fall under the scope of federal law in a tribal court. Because this jurisdiction is shared between federal and tribal courts, both governments reserve the right to bring charges against an individual. As such, if you have been charged with a major crime by a tribal court, such as murder, the federal courts may also bring the same charges against you in order to lengthen your sentence.
What is Tribal Jurisdiction?
If you are a Native American person living in Indian Country in Oklahoma, it is important to be aware of how tribal jurisdiction may affect you. For many years, local tribes have struggled to assert their right to apply tribal jurisdiction to Native American people living within Native land. The state of Oklahoma has misapplied criminal and civil jurisdiction in many cases where they did not have the legal right to do so.
As of recently, Indian tribes have been afforded their sovereignty with civil and criminal jurisdiction over Indian country and now, most of these matters are heard and dealt with in independent tribal courts. If you need help with any legal issue, whether it is a criminal case, family law matter, or civil law issue, the lawyers at Palmer Law are here to help in any way we can.
Our law firm has unique and specific knowledge of tribal laws and courts, and we have significant experience handling Indian affairs. We can provide strong legal advice, explain any issues that you have, negotiate on your behalf, and build up a criminal defense for your case. Our lawyers are qualified to operate in the Chickasaw, Choctaw, Muscogee (Creek) Nation, Seminole, Cherokee, Citizen Potawatomi, and Cheyenne and Arapaho Nations.
If you are a member of a different tribal nation, we can help you find an attorney that can represent you.