In an 8-0 decision that still indicates a divide over unanswered civil jurisdiction questions, the Oklahoma Supreme Court affirmed a Rogers County District Court ruling that children living in Claremore are domiciled within the Cherokee Nation Reservation and therefore live within Indian Country for purposes of the Indian Child Welfare Act. The court explicitly narrowed its holding only to ICWA’s civil jurisdiction in relation to the Cherokee Nation and left other uncertainty over broader reservation questions to be decided at a later date.
The child custody case, first filed in state district court in 2013, involved two children who are Cherokee Nation citizens living within the nation’s boundaries. In November 2021, attorneys for the Cherokee Nation filed to transfer the custody case to the nation’s district court by arguing ICWA and a 2020 intergovernmental agreement between the nation and Oklahoma mandated the transfer. In January 2023, the district court held in favor of the transfer, but stayed it until the case’s appeal was finished.
In his majority opinion, Justice Richard Darby hedged the decision, saying it should not be taken to make any broad holdings about civil jurisdiction generally.
“We find that the district court was not clearly erroneous in finding that the Indian children in this case are domiciled in the Cherokee Nation Reservation. We do not find that the Cherokee Nation Reservation has never been disestablished without any restrictions attached or for purposes of civil law generally,” Darby wrote. “Rather, this holding is merely an acknowledgment of the existence of the Cherokee Nation Reservation under ICWA due to ICWA’s incorporation of [U.S. Code 18, Section 1153] of the Major Crimes Act in the ICWA definition of Indian Country.”
Although the court’s decision was unanimous, the five opinions issued by the court foretell disagreement amongst the justices in how they believe the McGirt v. Oklahoma ruling, which functionally upheld eastern Oklahoma as a series of Indian Country reservations for purposes of the Major Crimes Act, affects Oklahoma’s civil jurisdiction landscape.
After the McGirt decision, different provisions under ICWA entered into effect in much of eastern Oklahoma. In anticipation of jurisdictional changes, the Cherokee Nation and the state government reached an intergovernmental agreement “regarding jurisdiction over Indian children within the nation’s reservation” in September 2020. The next year, the Cherokee Nation Reservation was recognized as “never disestablished” in Hogner v. State. Both ICWA and the intergovernmental agreement apply to child custody proceedings within the Cherokee Nation Reservation.
Judges agreed under both ICWA and the agreement, if attorneys for the nation request a case be transferred to Cherokee Nation District Court, then the case should be transferred.
“Transfer is clearly authorized by the agreement and [U.S. Code 25, Section 1911(a)] of ICWA,” Darby wrote.
The narrow ruling is limited to only the Cherokee Nation and only ICWA’s civil jurisdiction, both of which were clarified by the 2020 agreement. The decision also clarified that because the agreement was ratified by the Legislature, “it is a public law, comparable to a statute.”
Judicial tea leaves: Justices comment on civil jurisdiction
While charging a fee to tell the future remains a crime in Oklahoma, attempting to read judicial tea leaves is not. With five separate opinions on a relatively straightforward issue of statutory interpretation, justices left behind enough in their judicial cups for some legal tasseography. With other civil jurisdiction issues involving income tax and evictions pending before the Oklahoma Supreme Court, recent Indian law decision give the best clues for observers as to what justices think about civil jurisdiction within the McGirt-affirmed reservations.
Seven justices of the court concurred with the majority opinion, with Vice Chief Justice Dana Kuehn only concurring in the result of the decision. Similar to her dissent last week, Kuehn argued the court’s civil jurisdiction ruling was too narrow.
“Additionally, I emphasize that the majority incorrectly and unnecessarily decides to determine reservation status here. I believe the question of reservation status was settled by McGirt and subsequent cases considering the reservation status of tribes with similar treaties. This court should not attempt to redefine reservation status or Indian Country in every separate civil case,” Kuehn wrote. “I would find that the agreement applies here as a matter of law. And, given its status as public law in Oklahoma, plus the authorizing provision of [U.S. Code 25, Section 1919(a)], I would reject [the appellants’]Â arguments that ICWA section 1911(a), not the agreement, controls here.”
Conversely, Chief Justice Dustin Rowe wrote separately to detail why the court’s new civil jurisdiction holding only applies to ICWA cases.
“The majority correctly points out that ICWA’s definition of reservation imports the definition of ‘Indian Country’ — as defined by [U.S. Code 18, Section 1151] — thereby incorporating by reference the criminal definition as held in McGirt. Accordingly, the Cherokee Nation constitutes ‘Indian Country’ pursuant to [U.S. Code 18, Section 1151] thereby meeting the definition of reservation under ICWA,” Rowe wrote. “This is not an independent finding. Rather, ICWA’s incorporation of [U.S. Code 18, Section 1151] in its definition of reservation mandates the outcome in this particular matter. In fact, this interpretation of ICWA’s definition of reservation is not to be construed to alter our state’s jurisprudence that for civil purposes reservations have never been recognized. It is only when Congress or the United States Supreme Court determines otherwise that we are to deviate from our longstanding jurisprudence. Nor are we bound by the decisions of the Oklahoma Court of Criminal Appeals.”
With the orally argued Stroble v. Oklahoma Tax Commission looming, other justices were less willing to preview their civil jurisdiction jurisprudence. While Justice M. John Kane IV did concur with the child custody case’s result, his separate opinion primarily noted that the court’s interpretation of the applicability of the federal ICWA provisions were dicta — that is to say, not necessarily legally binding in all future litigation — and that attorneys should focus on the narrow reservation holding and the interpretation of the agreement under state law.
“I concur that Congress’s definition of ‘reservation,’ for purposes of the Indian Child Welfare Act, includes ‘Indian Country as defined in [U.S. Code 18, Section 1151].’ (…) Congress explicitly and fully adopted the Major Crimes Act’s definition of ‘Indian Country’ for ICWA. I further concur that the court’s holding the Indian children in this case reside within the boundaries of the Cherokee Reservation is limited to the definitions of ‘reservation’ and ‘Indian Country’ in ICWA and the Major Crimes Act, respectively,” Kane wrote. “I write separately to say that, because the agreement governs this child custody proceeding, the court’s discussion of whether transfer is authorized under [U.S. Code 25, Section 1919(a) and (b)] is dicta. It is not essential to the disposition of this case.”
Justice Noma Gurich joined with Justice Douglas Combs to emphasize the court had to address the civil jurisdiction implications of the McGirt decision.
“In its recitation of the applicable standard of review on appeal, the majority opinion correctly states that ‘[b]oth the agreement and ICWA require the district court to make an initial finding of fact regarding a jurisdictional question — whether the Indian children live on their tribe’s reservation.’ Said another way, we cannot escape deciding whether the Indian children live on land within the ‘reservation’ or ‘Indian Country,’” Combs wrote.
He said the court “must determine what is meant by ‘reservation’ in a post-McGirt world.”
“Consequently, the children’s residency upon the reservation — and McGirt’s implications on that determination — are issues we must address whether we proceed under the statute or the agreement,” Combs continued. “Because the children reside on land in Claremore that is within the Cherokee Nation’s historical reservation boundaries as understood after McGirt, the tribal court had exclusive jurisdiction under Section 1911(a) of ICWA but for the agreement. Under the agreement, the state’s district court had concurrent jurisdiction pursuant to Section (IV) of the agreement until the Cherokee Nation asked for a transfer of this guardianship proceeding to tribal court pursuant to section (V)(2) of the agreement. At that point, the ‘shall transfer’ language of section (V)(2) required the state court to transfer the matter to the tribal court.”
