In a landmark opinion that could eventually be challenged before the U.S. Supreme Court, the Oklahoma Court of Criminal Appeals ruled today that the City of Tulsa retains criminal jurisdiction over non-member Indigenous defendants for offenses committed within Indian Country reservations because the state “has a strong sovereign interest in ensuring public safety on the roads and highways of its territory and in ensuring criminal justice for all citizens — Indian and non-Indian.”
For the first time, the state’s highest criminal court applied the “Bracker balancing test” to answer one of the many questions that have arisen from the U.S. Supreme Court’s 2020 ruling in McGirt v. Oklahoma, which functionally affirmed most of eastern Oklahoma as a series of Indian Country reservations where only the federal government and tribes had jurisdiction over crimes committed by and against tribal citizens. In 2022, the U.S. Supreme Court walked back some of the McGirt decision’s impact in Oklahoma v. Castro-Huerta, holding that the state retained jurisdiction to prosecute non-Indians who commit crimes against Indians.
On Thursday, the Oklahoma appellate court took that one step further by broadly applying the Castro-Huerta decision to the interests of state, tribal and federal governments when it comes to the enforcement of traffic laws. Arrested by Tulsa police for DUI in 2021, Osage citizen and local MMA fighter Nicholas Ryan O’Brien hooked a Tulsa judge into dismissing his charges based on the McGirt decision. Tulsa shrimped into an appeal.
After more than a year in the appellate ring, the Court of Criminal Appeals knocked O’Brien’s case back to its original octagon Thursday for further proceedings and set the stage for additional bouts over whether the state can prosecute Indian defendants, partially because the majority opinion specified its application only to crimes committed within reservation boundaries by tribal citizens who are not members of that specific tribe.
“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.
Other judges on the criminal court, however, authored their own opinions. Two encouraged applying the decision even more broadly to all Indigenous defendants within an Indian Country reservation regardless of whether they are citizens of that tribe. Another sided with the Muscogee Nation’s amicus argument by saying the rest of the court “prefers the illusion of jurisdictional complexity to the clear implications of McGirt and the longstanding principles of tribal sovereignty.”
“Oklahoma has no jurisdiction of crimes committed by Indians in Indian country unless it is expressly conferred by Congress,” Judge David B. Lewis wrote in dissent. “The Supreme Court cannot create such jurisdiction from a footnote to Castro-Huerta; and this court cannot conjure it from the application of Castro-Huerta and Bracker to an Indian defendant’s prosecution for offenses in the City of Tulsa, which lies entirely within Indian Country.”
‘Nasty’ Nick fought the law, and the law won (for now)
Thursday’s decision will send O’Brien — nicknamed “Nasty” in his professional endeavors as a pugilist — back to Tulsa Municipal Court to grapple with his DUI and traffic charges that occurred within the Muscogee Reservation. The ruling marks a substantial departure from the 2020 McGirt decision, which overturned the state conviction of a Seminole citizen for raping a child within the Muscogee Reservation. The four-judge majority found that the subsequent Castro-Huerta decision allowed for concurrent state jurisdiction over tribal citizens like O’Brien.
In his majority opinion, Hudson began by citing the Castro-Huerta decision and the 10th Amendment to find that “since the latter half of the 1800s, the court has consistently and explicitly held that Indian reservations are ‘part of the surrounding state’ and subject to the state’s jurisdiction ‘except as forbidden by federal law.”
He then rejected arguments that federal law preempts state jurisdiction, specifically finding that the General Crimes Act, Public Law 280 and the Oklahoma Enabling Act do not prevent state jurisdiction.
“The doctrine of Indian sovereignty, premised on the rule that state laws generally are inapplicable on the reservation except where Congress has expressly provided that state law may apply ‘has not been rigidly applied in cases where Indians have left the reservation and become assimilated into the general community,’” Hudson wrote.
He then applied the “Bracker balancing test,” a U.S. Supreme Court framework for analyzing whether states have concurrent civil jurisdiction, to find that Oklahoma possessed criminal jurisdiction in O’Brien’s case. Bracker balancing calls for courts to weigh state, tribal and federal government interests when addressing jurisdictional questions. Notably, the O’Brien case lacked a federal brief on the federal interests in the case, while another pending Tulsa municipal court case about an Indian receiving a traffic citation — Stitt v. Tulsa — does have federal briefing on the Bracker analysis.
Despite the Muscogee Nation’s official objection that Bracker balancing constituted a “fool’s errand,” Hudson and his colleagues applied the test to the O’Brien case to find that neither tribal nor federal interests prevented state jurisdiction.
“Tulsa’s prosecution of non-member Indians of the Muscogee (Creek) tribe for misdemeanor traffic offenses occurring on public streets and roads in Tulsa does not affect the tribe’s authority to regulate its own citizens for violations of Creek tribal law,” Hudson wrote. “The federal interest in public safety on the reservation for all citizens would be enhanced by Tulsa’s assertion of jurisdiction over non-member Indians for these crimes.”
Concurrences note desire to expand state jurisdiction
While the majority opinion was narrowly tailored to the question of municipal jurisdiction in Tulsa over a non-member Indian, two other judges on the court wanted the decision to go further. In his 25-page concurring opinion, Judge William J. Musseman said the ruling should apply to any city and county in Indian Country throughout Oklahoma.
“As a result of Bracker balancing, Oklahoma has concurrent criminal jurisdiction over non-member Indian defendants accused of committing non-major crimes,” Musseman proposed. “While the court does not adopt my conclusion, the analysis that leads to it is not excluded from the court’s holding today. Oklahoma, the tribes, and the federal government must instead wait for the next case — or next several cases — to learn the balance of criminal jurisdiction in Oklahoma.”
Judge Gary Lumpkin’s five-page concurrence was shorter than Musseman’s, but he managed to be even more fiery.
“The term, ‘tribal sovereignty,’ has for too long been used in an overly broad manner,” Judge Gary Lumpkin wrote. “If applied under the interpretation urged by [O’Brien] and [the Muscogee Nation], Oklahoma could functionally cease to be a state. But as the Supreme Court set out in Castro-Huerta, a tribe may have qualified sovereignty over tribal matters within its designated reservation, but the reservation is part of the state, not vice versa.”
Lumpkin also argued that Oklahoma’s criminal jurisdiction over Indian defendants should apply within Indian Country regardless of specific tribal citizenship. Functionally, Lumpkin argued the “non-member” status of O’Brien as an Osage citizen should not matter.
“I realized the court is only addressing the facts and issues before it, but I can find no legal impediment to application of its reasoning in any similar factual situation regardless of tribal membership,” he wrote in a final footnote.
However, not every judge on the court was sold on the idea of state jurisdiction over tribal citizens. Lewis echoed his prior dissents in tribal sovereignty cases and criticized the court for denial of the Muscogee Nation’s request for oral argument in the case.
“This court today (…) means to touch the heart of tribal self-government if it can, for it reads Castro Huerta, et al, 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,” Lewis wrote. “The court premises that infringement upon a cursory Bracker balancing carried of without an adequate evidentiary record concerning the practical impacts of its ruling on tribal sovereignty; indeed, without even the formality of oral argument as requested by the Indian tribes appearing (with no small irony) as amicus curiae.”
Brett Chapman, O’Brien’s attorney, said he and O’Brien were “profoundly disappointed by today’s decision.” He argued the ruling serves as proof of the appellate court’s hostility to the McGirt decision.
“Their ruling marks a stark departure from the principles established in the landmark Supreme Court decision in McGirt v. Oklahoma,” Chapman said. “This stands in stark contrast to this court’s recent assertion that there is no anti-McGirt ‘base revolution afoot.’ Today’s decision proves otherwise.”
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New mayoral administration a factor in next steps
Since the McGirt decision, former Tulsa Mayor G. T. Bynum has fought to retain the city’s criminal jurisdiction to prosecute tribal citizens in municipal court, filing such arguments in both federal court (Hooper v. City of Tulsa) and state court (Stitt v. City of Tulsa).
Legal strategy for the city is directed by the mayor’s office, and Tulsans elected a new mayor in November. Monroe Nichols, who was sworn into office Monday, promised to end adversarial lawsuits between the city and tribal governments during his campaign. In O’Brien’s case, Nichols’ inauguration came too late for him to direct new filings, but it remains to be seen how Tulsa’s new mayor will react to the O’Brien decision.
While the court opinion grants the city criminal jurisdiction over non-member tribal citizens for traffic offenses, city prosecutors have discretion on whether to pursue those cases or forward them to tribal courts for adjudication. Under the Bynum administration, city attorneys refused to forward traffic tickets to tribal prosecutors, but Nichols has yet to clarify his administration’s stance on concurrent jurisdiction or respond to the decision.
Read the full appellate opinions in the O’Brien case
