Citing “fundamental principles of federal Indian law that have been in place since the founding era and are deeply rooted in the United States Constitution,” the U.S. Department of Justice sued a pair of Oklahoma district attorneys Monday in an effort to stop them from prosecuting tribal citizens for crimes committed within Indian Country reservations.
In 2020, the U.S. Supreme Court’s 5-4 ruling in McGirt v. Oklahoma functionally affirmed most of eastern Oklahoma as a series of Indian Country reservations. State, tribal and federal officials have subsequently jockeyed in other court cases over who has jurisdiction to prosecute offenders within the Muscogee, Cherokee, Chickasaw, Choctaw, Seminole and other reservations. Historically, only tribes and the federal government have had jurisdiction to prosecute crimes committed by or against Indigenous people within Indian Country, a legal term of art designating land dedicated to the benefit of tribal communities and citizens.
But in 2022, a slightly different SCOTUS — Justice Amy Coney Barrett succeeded Justice Ruth Bader Ginsburg — ruled 5-4 in Oklahoma v. Castro-Huerta that the state has jurisdiction to prosecute crimes committed by non-Indian defendants against tribal citizens. In the years since, that decision has been leveraged by some state prosecutors and state appellate judges to claim Oklahoma retains:
- the right to issue arrest warrants for tribal citizens (State v. Crosson, November 2023);
- subject matter jurisdiction to hear cases on crimes involving tribal citizens (Deo v. Parish, December 2023); and
- full criminal jurisdiction over tribal citizens who commit crimes in reservations that are not their own tribe’s (Tulsa v. O’Brien, December 2024).
In their filings against Ballard and Iski on Monday, DOJ attorneys asked judges in the U.S. District Courts for the Northern District of Oklahoma and the Eastern District of Oklahoma to declare that the state “lacks criminal jurisdiction over Indians for conduct occurring in Indian Country” and that “continued assertion of such jurisdiction violates federal law.” The federal courts are also being asked to issue injunctions prohibiting the state “from asserting criminal jurisdiction over and prosecuting Indians for conduct occurring in Indian Country absent express authorization from Congress.”
“Defendant’s unlawful assertion of criminal jurisdiction over Indians in Indian Country has irreparably harmed the United States, and the balance of equities and the public interest weigh heavily in favor of stopping Defendant’s clear violations of federal law,” DOJ attorneys alleged against Iski and Ballard. “Defendant’s actions and incorrect interpretation of Castro-Huerta have created intolerable jurisdictional chaos in Indian Country, and if allowed to stand would seriously impact the United States’ ability to protect tribal sovereignty and its own prosecutorial jurisdiction both in Oklahoma and nationwide. A preliminary injunction should therefore be issued.”
In the DOJ’s motion for preliminary injunction against Iski, it said the District 25 DA has improperly filed “at least four such criminal cases on behalf of the state” against Indian defendants:
- Oklahoma v. Joseph Long (trespassing/methamphetamine);
- Oklahoma v. Joshua Medlock (possession of contraband by inmate);
- Oklahoma v. Joey Wiedel (contraband); and
- Oklahoma v. Rachel Carson (assault and battery on a police officer).
In the DOJ’s motion for preliminary injunction against Ballard, it said the District 12 DA has improperly filed “at least three such criminal cases on behalf of the state” against Indian defendants:
- Oklahoma v. Brayden Bull (child pornography);
- Oklahoma v. Tony Williams (fentanyl trafficking); and
- Oklahoma v. Eric Ashley (drug crimes; child neglect).
Ballard: DOJ trying ‘end run’ around O’Brien decision
Reached Tuesday, Ballard called the DOJ’s filings “federal overreach at its finest.”
“This is trying to interject a federal system on local issues. If you look at the cases they cite, these are child pornographers, they’re drug dealers, they’re people pouring fentanyl into our communities,” Ballard said. “We believe that we’ve got a local interest in that. Local law enforcement is going to fight to keep those cases and keep the federal government out of our local cases.”
First elected as the DA for Rogers, Mayes and Craig counties in 2014, Ballard issued a statement panning President Joe Biden’s recent commutations and criticizing the DOJ’s decision to sue himself and Iski for prosecuting tribal citizens in Oklahoma courts.
“In a week when President Biden issued a record number of commutations benefitting offenders committing the most horrendous crimes, it is telling that his DOJ now seeks to involve the federal government in local law enforcement,” Ballard said. “It is offensive that the federal government believes it knows better than local law enforcement how to handle child pornographers and drug dealers who are committing crimes in the neighborhoods we fight to keep safe. Local law enforcement is committed to justice in our own community, and that justice does not change based on race, political affiliation, or by placing people in categories.”
Ballard said by phone that he does not know who will represent him in the federal lawsuit. Iski, the district attorney for McIntosh and Okmulgee counties, acknowledged an awareness of the litigation through Damon Gardenhire, spokesman for the Oklahoma District Attorneys Council.
“District Attorney Carol Iski joins DA Matt Ballard in his opposition to the Biden administration’s DOJ lawsuit, and she shares his concern about the importance of local law enforcement in ensuring justice and safety for Oklahoma communities,” Gardenhire said.
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Filed three weeks after a landmark decision from Oklahoma’s Court of Criminal Appeals that said the City of Tulsa has jurisdiction to prosecute Osage Nation citizen Nicholas Ryan O’Brien for DUI within the Muscogee Nation Reservation because he is not a Muscogee citizen, the DOJ’s new lawsuits could accelerate the overall fight over criminal jurisdiction in eastern Oklahoma. In the O’Brien case, the state’s top criminal court drew heavily from the Castro-Huerta decision while applying the “Bracker balancing test” for the first time. The court ruled 4-1 that 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.”
By phone Tuesday, Ballard pointed to the O’Brien decision and the timing of the DOJ lawsuits, which were filed by attorneys with the agency’s Environment and Natural Resources Division. (In 2022, that division successfully convinced a federal court that Oklahoma lacks jurisdiction to regulate surface mining within Indian Country.)
“This is an end-run around that decision by the federal government. Even the Supreme Court in Castro-Huerta noted that Congress hasn’t preempted state jurisdiction, and unless preempted, the state has jurisdiction over all of its citizens,” Ballard said. “We believe the federal government doesn’t have a role there. Those are state interests. We’ve got local law enforcement investigating these cases, and local law enforcement is going to move forward. And that doesn’t have anything to do with the establishment of reservations or anything. We believe this is federal vs. local issue.”
Ballard discussed the case of Brayden Bull, which was named in the DOJ’s lawsuit against him. A Navajo citizen arrested in Rogers County and the Cherokee Nation in November 2021 for possession of child pornography, Bull found himself in the highly unusual position of being charged criminally by state prosecutors, tribal prosecutors and federal prosecutors for the same crime. Charged by the Cherokee Nation in December 2021, Bull’s case moved at a glacial pace for a year and a half, with one Cherokee Nation Court entry indicating that the tribe was waiting for the federal government to “charge on federal status.” (Federal law limits tribal court criminal sentences to a maximum of three years per count.)
As Bull’s tribal charge languished and the federal government did not act, Ballard filed three criminal counts against Bull in state court and sought an arrest warrant. Rogers County District Court Special Judge Terrell Crosson said Ballard lacked jurisdiction to issue the warrant because Bull is a tribal citizen within reservation boundaries. Ballard appealed, and the Court of Criminal Appeals held in State v. Crosson that any application of the McGirt decision and Indian defendant status must be raised after an arrest is made.
Ultimately, Bull pleaded guilty to the federal charge, but Ballard has continued to prosecute him since, citing “a local interest in it.”
“The federal government had had the Brayden Bull case for a year and a half, if I remember correctly, and had not done anything with it. No charges had been filed by U.S. attorney’s office,” Ballard said Tuesday. “Our local law enforcement had presented them and given them all of the information, and nothing had happened. We believed that he needed to be prosecuted in a jurisdiction that carried a significant prison sentence. And as it played out, he received a significant prison sentence.”
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Review the filings against Carol Iski, Matt Ballard
- DOJ complaint against Matt Ballard
- DOJ motion for injunction, opening brief against Ballard
- DOJ complaint against Carol Iski
- DOJ motion for injunction, opening brief against Iski
