Issues around tribal sovereignty have been hotly debated for decades in Oklahoma. Historically, Native American people and Indian tribes have rightly fought for their sovereignty, including their right to an independent tribal government that includes independent tribal courts with the ability to enact and carry out tribal laws.
It was only recently that the state courts of Oklahoma lost their ability to enforce some of their laws on non-Natives for matters that take place on tribal land. The change came in 2020, when the Supreme Court ruling of McGirt reached the conclusion that many crimes that happen on tribal lands are only subject to the authority of tribal courts, not the subject matter jurisdiction of the state.
This means that the tribal sovereign nations of Oklahoma use their own governing body and tribal justice system to settle criminal matters and civil disputes. The state law of Oklahoma can no longer exercise jurisdiction over many crimes that happen in the bounds of tribal lands.
If you are a person of Native American heritage who is facing legal issues in any of Oklahoma’s tribal courts, you need an experienced attorney who thoroughly understands and knows how to work within tribal justice systems. This is equally true for criminal cases, civil cases, or issues of family law. Tribal law is entirely separate and different from state law, and to stand a chance of success in tribal courts you need a lawyer with intimate knowledge of tribal codes.
Here at Palmer Law, our team of lawyers has a wealth of experience working within the tribal court jurisdiction. We can assist you with any matter of tribal law, whether you are troubled by criminal matters, civil matters, or family matters. Lloyd Brent Palmer, our managing lawyer, is an official citizen of the Chickasaw Nation, qualified to take cases through the tribal courts of many tribes, including the Cheyenne and Arapaho, Citizen Potawatomi, Cherokee, Seminole, Muscogee (Creek) Nation, Choctaw, and Chickasaw.
What Is The Definition Of Tribal Jurisdiction?
Tribal jurisdiction is defined as the power that a tribal government has to exercise its authority over both civil and criminal matters that take place within its own communities. This exclusive jurisdiction allows tribal justice systems the authority to deal with most of the legal issues facing tribal members using their own tribal law, without relying on the state and federal courts of the United States government. If state courts attempt to prosecute a Native American person for any matters that occur on tribal land, this is a violation of their sovereignty and the territorial jurisdiction of their tribe.
There are some matters that fall outside the scope of the exclusive jurisdiction of tribal justice, though these exceptions are mainly within the criminal jurisdiction – specifically crimes described in the Major Crimes Act, which we will detail further in the next section. Most civil and family matters are able to be handled under the tribal court civil jurisdiction.
The Major Crimes That Fall Outside The Criminal Jurisdiction Of Tribal Courts
In the last section, we mentioned that the tribal court jurisdiction does not extend to criminal matters that are covered under the purview of the Major Crimes Act enacted by the federal government.
These federal crimes include:
- Murder and manslaughter
- Rape or sexual assault
- Assault with the intent to commit a murder or with a dangerous weapon
- Burglary and larceny (the theft of personal property)
- Felony-level child abuse or neglect (of either Native or non-Native children)
- Assault against a minor under 16 years of age
- Organized crime
- Financial crimes against the US government
Unfortunately, even if a Native American person is accused of committing one of these crimes on tribal land, they do not fall under the criminal jurisdiction of the tribal courts or even state governments.
Instead, federal law dictates that a case involving any of these accusations must be dealt with in a federal court.
How Native Country Is Defined In Relation To Tribal Jurisdiction
Tribal jurisdiction mostly applies to situations where Native American people are involved in crimes or civil/family disputes that take place on tribal land.
However, as is often the case with legal disputes involving Native affairs, the definition of tribal land in relation to tribal jurisdiction has been a point of much contention and debate.
Federal statutes define Native Country as:
- All of the land within Native reservations demarcated by the US government – including any rights-of-way that run through said reservation
- All dependent Native communities demarcated by the US government, both those in original or later acquired territory
- All Native allotments that have not had their titles revoked. Again, this includes any rights-of-way that run through said allotment
Thanks to the McGirt Supreme Court case, the Muscogee (Creek) Nation was shown to be within the territorial jurisdiction of their tribal court, due to the fact it had not been explicitly disestablished by congress or federal law.
This allowed many other Native tribes in Oklahoma to get the criminal and civil jurisdiction of their tribal courts restored. At this point in time, almost all areas classifying as Native Country in the state enjoy their tribal court’s authority.
Tribal Court Jurisdiction Over Non-Natives
Tribal courts mostly deal with disputes occurring between Native American people whose affairs occur in areas under the tribe’s jurisdiction. However, there are certain cases where non-Natives fall into the criminal or civil jurisdiction of a tribal court.
The jurisdiction over non-Natives of a tribal court is not a cut-and-dry matter. The McGirt Supreme Court case showed that non-Natives can be both charged and convicted by a tribal court for committing crimes against Native American people on Native American Land.
However, the case of Castro-Huerta in 2022 ruled that non-Natives who commit a crime against a Native American person while in Native Country come under the purview of the criminal jurisdiction of the state court. This means it is the job of the state court to prosecute non-Natives for crimes against Native people, even if these crimes occur on Native American Land.
Things are different again when dealing with a civil lawsuit or legal matter. A tribal court could have jurisdiction over non-Natives if the defendant is a member of the tribe. These matters include family affairs such as child custody proceedings, divorce settlements, guardianship disputes, personal injury claims, and business contracts (especially those dealing with a tribal business license). It is possible that a CFR court may be granted civil jurisdiction if the defendant is willing to consent to the personal jurisdiction of the CFR court.
What Are CFR Courts?
A CFR court, also known as a Court of Indian Offenses, is a trial court where all parties involved must present their cases to a magistrate judge.
CFR courts give tribes exclusive jurisdiction over the criminal proceedings, in much the same way as a tribal court. However, CFR courts are used when a specific tribal court justice system has not been established in the area.
There are five CFR courts in the United States. Oklahoma’s CFR court is called the Eastern Oklahoma Region CFR Court and deals with the following tribes:
- Ottawa Tribe
- Modoc Tribe
- Eastern Shawnee Tribe
- Peoria Tribe of Indians of Oklahoma
- Seneca-Cayuga Tribe of Oklahoma
A CFR court has the power to sentence defendants to fines, labor, or imprisonment.
Due process protections will also provide criminal defendants or defendants involved in child custody proceedings with a lawyer if they cannot afford one.
Tribal Court Criminal Jurisdiction Explained
Tribal criminal jurisdiction was previously long disputed by the state authorities of Oklahoma. In the past, the state court had criminal jurisdiction over all citizens belonging to the state of Oklahoma – without consideration for their Native status or Native territories. This resulted in many tribe members being charged and convicted by a state court, unable to follow the process of their own tribal court justice system.
Once again, it was the 2020 McGirt Supreme Court case that overturned this. As a result, any crime committed by a Native on Native land, excluding those laid out in the Major Crimes Act, must be tried in a tribal court and not state or federal court.
In this way, criminal matters under tribal law are entirely separate from the state court jurisdiction. Instead of falling under the subject matter jurisdiction of state laws, they are based around federal Indian law, previous court rulings, and the Indian Civil Rights Act.
It is important to remember that each tribal court will handle criminal matters differently, based on their tribal constitutions. The rules and possible penalties will vary. This is why it is especially important to seek legal counsel from a lawyer who is skilled and highly experienced within the relevant tribal court system.
Tribal Civil Jurisdiction Explained
As mentioned above, a tribal court in Oklahoma will have exclusive jurisdiction over almost all civil cases concerning Native Americans that occur on tribal land.
These civil cases include:
- Divorce settlements
- Child custody of Native children
- Child support for Native children
- Guardianship of Native children
- Domestic violence disputes
- Personal injury cases
- Land disputes
The civil jurisdiction of a tribal court may also extend to non-Natives, if the case of a particular person is related to Native territory or occurred within it.
There are cases where state courts and a tribal court may have concurrent jurisdiction, although these are rarer. A good example of this would be a divorce settlement between a tribe member and a non-Native person.
The Potential For Overlap Between A Tribal Court and Federal Courts
Any crime labeled a felony by federal law will also fall under the subject matter jurisdiction of the federal courts. This does not mean that the tribal court cannot exercise its own authority. Instead, federal regulations allow the two court systems to have concurrent jurisdiction.
This means that someone accused of a felony crime (for example, murder, sex crimes, arson, etc.) may essentially be tried twice – once in federal court/supreme court and once in tribal court. This can lead to a longer or harsher sentence than if the same crime had been committed by a non-Native who would have to deal with only the federal courts.
Once again, we see another example of how Native affairs require dedicated knowledge and experience in order to be navigated successfully. If you are a Native American person and you have been charged with a felony-level crime that occurred on tribal lands, it is vital that you seek out an appropriate lawyer as soon as possible.
The Impact Of The Indian Civil Rights Act On Tribal Courts
The Indian Civil Rights Act, also known as the ICRA, is a federal law created in an attempt to protect the individual rights and freedoms of Native people. Essentially, it limits the power of a tribal court in certain areas in order to protect what the federal government sees as the basic rights of both Natives and non-Natives.
The Indian Civil Rights Act protects the following qualities:
- The freedom to exercise religious beliefs
- Freedom of speech
- Freedom from unreasonable searches and seizures
- Freedom from being prosecuted multiple times for the same offense (within the limitations discussed above in relation to the concurrent jurisdiction of federal and tribal courts)
- Protection from testifying against yourself in criminal proceedings
- Protection against having private property reappropriated for public use without appropriate compensation
- The right to a public trial that occurs at an appropriate speed, where the defendant is told the charges, is able to confront and subpoena witnesses, and to have the assistance of a lawyer
- Freedom from bail or fine fees that are deemed excessive, and cruel and unusual punishments
- Equal protection of the law
- Freedom from deprivation of property or liberty without due legal process
- The right to trial by a jury of at least six people when the offense is potentially punishable by imprisonment
There are key differences between the ICRA and the US Constitution’s Bill Of Rights. These are:
- Tribal courts do not have to follow the same rules around the separation of religion and state affairs.
- Tribal courts do not have to provide a lawyer if the defendant is unable to afford one, although they must always allow a lawyer obtained at the defendant’s own expense.
- Defendants in a tribal court do not have the same right to a jury trial.
Contact A Lawyer With Tribal Jurisdiction Experience
As you have seen, legal matters can become immensely complicated when dealing with the various jurisdictions of tribal courts.
Depending on the charges against someone, they may fall into tribal court jurisdictions, federal court jurisdictions, or the concurrent jurisdictions of both. Furthermore, the exact rules and potential punishments facing an accused person will vary between tribal courts. Not only this, it is not unheard of for the state to attempt to disregard the jurisdiction of a tribal court and violate tribal sovereignty.
The same is true with civil disputes and cases. Different tribal courts will handle civil matters such as child custody and domestic violence differently, and tribal court orders will vary widely in their potential scope and consequences.
This is why it is essential that you secure counsel from an experienced lawyer who is able to properly navigate the specific legal landscape relating to your case. Here at Palmer Law, we have extensive experience dealing with legal matters across many of Oklahoma’s tribal jurisdictions. Our head lawyer, Lloyd Brent Palmer, is a Chickasaw Nation citizen. He is qualified to work on tribal court cases for the Cheyenne and Arapaho, Citizen Potawatomi, Cherokee, Seminole, Muscogee (Creek) Nation, Choctaw, and Chickasaw tribes.