In a growing disagreement over who should prosecute tribal citizens, Tulsa County District Attorney Steve Kunzweiler has threatened to “drop a bunch of freedom of information requests” on the City of Tulsa as new Mayor Monroe Nichols’ administration has pushed to send more cases to tribal courts.
In December, the Oklahoma Court of Criminal Appeals issued a landmark 4-1 ruling in Tulsa v. O’Brien, which held that the city has concurrent jurisdiction with sovereign tribal nations and the federal government to prosecute non-member Indian defendants in the Muscogee and Cherokee reservations, which span much of the city. In determining whether the City of Tulsa had jurisdiction to prosecute Osage Nation citizen Nichols O’Brien for DUI and other traffic offenses within the Muscogee Reservation, the appellate court applied a “balancing” test, weighing government interests regarding criminal jurisdiction for the first time. (The appellate court denied a motion to rehear the O’Brien case on Feb. 5.)
In the months that have followed, Nichols has changed course on how the city handles citations made to tribal citizens, sending all such tickets to tribal courts first for review. O’Brien’s municipal case has been dismissed and referred to the Muscogee Nation by city attorneys, who report to Nichols’ office. Meanwhile, Kunzweiler has broadly interpreted the O’Brien decision to grant full and concurrent state jurisdiction for any non-major crime committed by a non-member Indian in Indian Country, a position that led the Muscogee Nation to sue him, Tulsa County and Sheriff Vic Regalado in federal court Feb. 13.
In the 2020 McGirt v. Oklahoma decision, the U.S. Supreme Court functionally affirmed eastern Oklahoma as a series of Indian Country reservations where only tribes and the federal government have prosecutorial jurisdiction over crimes involving tribal citizens. In 2022, the SCOTUS ruled in Oklahoma v. Castro Huerta that the state has concurrent jurisdiction when non-tribal citizens commit crimes against tribal citizens.
In a Jan. 8 letter to Nichols that underscored the jurisdictional tension in town, Kunzweiler said he has witnessed “chaos and havoc inflicted upon citizen-victims in Tulsa County following the United States Supreme Court’s decision in McGirt v. Oklahoma.”
“Despite assurances that cases would be handled, and justice would be meted out, the real reality is the public safety has waned, and victims have suffered in the post McGirt era,” Kunzweiler wrote. “With this restored authority (in the O’Brien decision) I will not allow the voices of domestic violence victims to go unheard my intention is to re-instill the confidence of our communities in the criminal justice system. Area businesses have been taken advantage of in the post McGirt era. I will make sure that their voices are heard as well. Likewise, I will enforce Oklahoma’s laws which deal with crimes such as drinking and driving and illegal distribution. To emphasize this point the district attorney prosecuting these cases in no way prohibits one of the tribes from prosecuting the same case this is the beauty of concurrent jurisdiction each entity can exercise their jurisdiction’s interests, not to the exclusion of the other, but in tandem.”
Nichols did not respond to Kunzweiler’s letter in writing, and in a Feb. 13 interview, he suggested that Kunzweiler should have requested a meeting with him to understand why he has asked the Tulsa Police Department to forward cases with tribal defendants to tribal courts instead of the DA’s office.
“I think for a long time the Tulsa Police Department and district attorney have worked well together. I don’t really understand — and for the record I have not met with Mr. Kunzweiler — I don’t think he’s expressed anything to me about arrest records,” Nichols initially said. “All I got was a letter that he sent out to a bunch of law enforcement agencies. And so, as I’ve actively reached out to tribal nations to try and figure out how do we find a pathway forward, that is something the DA has not done for me. I certainly don’t think it’s something he’s done for tribal nations.”
Nichols, however, campaigned on “co-governing” with tribal governments in Tulsa, but shortly into his tenure the appellate court decided O’Brien’s case. Despite the court holding the city possesses criminal jurisdiction to prosecute cases against non-member tribal citizens in municipal court, Nichols said he instructed the City Attorney’s Office to forward future cases with Indian defendants to tribal courts.
“I made this commitment when I was campaigning to get out of the courtroom on a lot of these issues, so obviously [O’Brien is] a case that I inherited,” Nichols said. “My goal was to do exactly what I said as I was campaigning for mayor. The stated goal and policy of the city right now is that we begin to work through these jurisdictional issues outside of the courtroom (with tribal governments).”
Nichols said city prosecutors dismissed charges against O’Brien and new charges were filed in the Muscogee Nation District Court. Records there show new documents from Feb. 11 in a criminal case against O’Brien originally filed in 2021. Prosecutors have prosecutorial discretion to determine how cases proceed, including the right to decide to dismiss a criminal case when charges are filed in another court.
While O’Brien is prosecuted in tribal court, Nichols said city and tribal leaders are negotiating an official framework for transferring other cases involving tribal citizens.
“Our goal is to refer these cases to tribal court as long as those courts have the capacity to prosecute. So it’s really starting to work with the nations and say, ‘Hey, what is that capacity to prosecute?’ So how do we balance our position on respecting tribal sovereignty while also making sure that we don’t have gaps in public safety?” Nichols said. “So we are in the neighborhood of 400 misdemeanor cases involving tribal citizens. The goal would be once we get these frameworks formalized, those 400 cases go to (tribal courts).”
Speaking after the Oklahoma District Attorneys Council meeting on Jan. 16, Kunzweiler said he agreed with the O’Brien decision and that it indicated his office can also prosecute non-member Indians who commit crimes in Tulsa County.
“[The City of Tulsa’s] argument was — and, I believe correctly and obviously, the Court of Criminal Appeals concurs with it — the City of Tulsa shouldn’t have been precluded from prosecuting somebody who may have been an Indian but was a non-member of the reservation (tribe),” Kunzweiler said. “O’Brien basically said the state has concurrent jurisdiction — or the City of Tulsa and by extension the state — has the ability to enforce state laws or municipal laws on people who are non-member Indians.”
Kunzweiler singled out the Tulsa Police Department as the only law enforcement agency not forwarding cases to his office when they involve tribal citizen defendants. That spurred his Dec. 31 letter to TPD Chief Dennis Larsen and his subsequent Jan. 8 to Nichols (embedded below) asking the city officials to have TPD forward “domestic violence, protective order violations, various theft cases, DUI offenses, etc.” to his office for prosecutorial review.
“I have advised every law enforcement agency in Tulsa County, every single one of them. I think I have 19 agencies that are accountable to providing reporting to me, and to an agency — with the exception of one — I’ve been having law enforcement provide me reports on those types of cases,” Kunzweiler said. “I’m hopeful the City of Tulsa and its new administration is not giving instruction to their officers not to bring cases to the state of Oklahoma, because the last thing I want to do is drop a bunch of freedom of information requests on a city to just give me their arrest reports.”
Nichols said the city would comply with open records requests from Kunzweiler’s office if he chooses to go that direction, but the mayor encouraged the DA to consider taking a seat at the negotiating table alongside tribal governments instead.
“I have respect if that’s the way he thinks he has to do his job. I can only assume positive intentions, so I want to make sure I say that. I think our approach is just different. And if he wants to tie up the system with a bunch of open records requests that are literally only going to show that we are doing the job we are supposed to be doing every day, then that’s fine,” Nichols said. “I would rather actually have the district attorney around the table with me and tribal leaders to try and figure out how do we get something done that will respect sovereignty and also make sure that we can protect public safety. I think everyone that is in this community that is working on this issue all are aligned around that goal except for one person. And like I said, I assume the best intent, but I’m not trying to make this a political issue. I’m not trying to fight with the DA. I’m trying to make sure this city is safe and that we respect the folks that we share Tulsa with and hold people accountable for breaking the law.”
‘Anti-McGirt base revolution’: O’Brien sparks uncertainty on criminal jurisdiction in Oklahoma
In a statement after the Court of Criminal Appeals released its O’Brien decision, defense attorney Brett Chapman called the ruling part of an “anti-McGirt base revolution” going on in Oklahoma’s courts.
“Their ruling marks a stark departure from the principles established in the landmark Supreme Court decision in McGirt v. Oklahoma,” said Chapman, who represents O’Brien. “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.”
Like O’Brien, Jimcy McGirt was a non-member tribal citizen when he was prosecuted by the state on child sex crimes, and the U.S. Supreme Court overturned his criminal conviction in 2020 by finding that the Muscogee Reservation was never disestablished and that Oklahoma lacked criminal jurisdiction over major crimes committed by tribal citizens within Indian Country. (O’Brien’s alleged crimes are not offenses covered by the federal Major Crimes Act.) While both McGirt and O’Brien were non-member Indians prosecuted for crimes on the Muscogee Reservation, proponents of state jurisdiction have argued that the McGirt decision only applied to crimes specifically listed in the Major Crimes Act.
Kunzweiler argued that the O’Brien decision represented a return to normal more than a sea change in Indian law.
“With all due respect, I think Oklahomans in 1907 completely understood what they were doing, and we didn’t have this (criminal jurisdiction) issue until the McGirt case came up,” Kunzweiler said. “I think the Court of Criminal Appeals has provided at least a template on explaining why the state should be able to exercise concurrent jurisdiction. There is nothing that we are depriving the tribes of.”
While Kunzweiler argued that criminal jurisdiction over Indian lands in Oklahoma was settled law after 1907, history is a little murkier. William King Hale, the mastermind of the murders depicted in Killers of the Flower Moon, famously underwent several trials and arguments over the criminal jurisdiction for his and John Ramsey’s case, which went to the U.S. Supreme Court. Hale and Ramsey’s murder of Osage citizen Henry Roan on an Osage allotment was found to have occurred in Indian Country, and their final trial occurred under exclusive federal jurisdiction.
In a modern context, though, Kunzweiler emphasized that tribal prosecutors still posses concurrent jurisdiction to bring their own charges in addition to state charges.
“So we aren’t taking anything from the tribes, but we are restoring at least our authority in this limited area back to the way it was back in 1907,” Kunzweiler said. “And so I have asked the mayor for the city of Tulsa: I want to make sure you understand this is an interest that the state of Oklahoma is going to enforce, and if we have people who are committing crimes, the state of Oklahoma will pursue that. So I’ve encouraged the mayor to make sure that his agency, the Tulsa Police Department, will provide that referral information to my office.”
While Kunzweiler praised the value of the state and tribes having concurrent jurisdiction over tribal citizens, an undated handout allegedly distributed among Tulsa County Sheriff’s Office deputies may muddy the legal waters. The handout was included as an exhibit to an affidavit filed by Muscogee Nation Attorney General Geri Wisner in the tribe’s lawsuit against Kunzweiler. Although Kunzweiler has asked for all tribal citizen cases to be sent to his office — and while Nichols has supported sending all tribal citizen cases to tribal courts — the handout instructs Tulsa County deputies to divide where cases are sent based on the member or non-member status of the tribal defendant, which stands in line with the specific facts in the O’Brien case.
“Due to a recent Oklahoma Court of Criminal Appeals decision, tribal members will be charged by tribal courts only if they are a member of the tribe in which the criminal offense took place,” deputies were instructed according to the handout. “For example, if Jone Doe is a Cherokee citizen and they are north of [Admiral Street/Boulevard] and in Cherokee Nation territory, and commit a crime, they will be booked and charged in Cherokee tribal courts. If John Doe is a Creek citizen and south of Admiral or west Tulsa Co. and commits a crime he will be charged in Creek tribal court, booked into [Tulsa County’s David L. Moss Criminal Justice Center] with HOLD/Creek Nation as the charge. Any other tribal citizens will not be booked or charged into tribal courts but rather STATE court and booked into [David L. Moss] as any other citizen.”
While concurrent jurisdiction between a state and federal government is usually not viewed as a major encroachment on the other’s sovereignty, the U.S. Supreme Court has distinguished cases that involve Indian defendants since at least 1886, when the court upheld the Major Crimes Act in U.S. v. Kagama. Owing to state governments’ historic hostility toward tribal governments and local prejudices against tribal members, America’s high court has previously recognized a federal duty to protect Indian defendants from state governments.
“Because of the local ill feeling, the people of the state where [tribes] are found are often their deadliest enemies,” Justice Samuel Freeman Miller wrote in the 1886 decision. “From their very weakness and helplessness, so largely due to the course of dealing with the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power (to fulfil the duty).”
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Kunzweiler: ‘I’ll do it the hard way’
Kunzweiler remains adamant that his office will gain access to TPD arrest records, even if they have to “do it the hard way” and file Open Records Act requests with the city. In his Jan. 16 interview, he claimed local police backed his position.
“If I’m not going to get those reports delivered to me because politics is getting in the way, I’m going to find a way to get those reports. And I’m not going to be deprived of my duty and obligation to protect the citizens of Tulsa County. And if I have to do it the hard way, I’ll do it the hard way. But I am hopeful that the city administration will direct their officers to provide me the same information as they may be providing to the federal government or to the tribes,” Kunzweiler said. “I have good reason to believe that local law enforcement is in agreement with my position. Whether it’s Oklahoma Highway Patrol or it’s Tulsa County Sheriff’s Office or even Tulsa Police Department.”
He also claimed tribal citizens are not always being “fully prosecuted” in federal or tribal court, and he echoed arguments from the O’Brien briefs about unprosecuted DUIs.
“I have my belief that very few of these crimes are being actually fully prosecuted,” Kunzweiler said. “I have enough information to suggest to me that we have people who are committing repeated DUIs and are still out on our streets. I’m not going to stand for that.”
Under former Mayor GT Bynum’s administration last year, the City of Tulsa’s attorneys made a similar claim in briefs filed in the O’Brien case, which the Muscogee Nation’s attorneys described as “sounding in stereotypes about drunken Indians.”
Nichols also dismissed the claims of tribal citizens going unprosecuted for crimes committed in Tulsa.
“His position that he wants people to hear is that people aren’t getting prosecuted and everything is the Wild Wild West. That is not true. Not only is Mr. O’Brien being prosecuted in tribal court — because that is the case that is at the top of the list — we are also sitting on 400 cases and working with tribes to make sure those are also prosecuted. There is no question over who has any jurisdiction, and we make sure people are held accountable for breaking the law,” Nichols said. “I think it’s somewhat irresponsible to decide to pick enemies with the city and tribal nations. You know, I would love to partner with Mr. Kunzweiler. I think Mr. Kunzweiler is going to have to understand that being the DA does not make you the king of everything. Being the DA makes you one of the stakeholders — like being mayor or being a police chief (or) like being the leader of a tribal nation — it makes you a stakeholder in making sure this is the safest city in the country.”
DOJ suits on criminal jurisdiction loom
Kunzweiler is not the only Oklahoma district attorney to direct their office to pursue cases against tribal citizens. The U.S. Department of Justice filed a pair of lawsuits Dec. 23, against District 12 DA Matt Ballard and District 25 DA Carol Iski after both of their offices filed criminal cases against tribal citizens after the McGirt decision. The federal briefs argue the state “lacks criminal jurisdiction over Indians for conduct occurring in Indian Country” and that “continued assertion of such jurisdiction violates federal law.”
On Jan. 22, the Cherokee, Chickasaw and Choctaw Nations’ attorneys filed motions to intervene in the DOJ case against Ballard and Iski. While the chiefs of all three tribes released statements on the lawsuit, Cherokee Nation Principal Chief Chuck Hoskin Jr.’s was the most critical.
“Since the U.S. Supreme Court’s confirmation of our reservation, the Cherokee Nation has prioritized our justice system, investing $74 million alone last year, and working with federal, state and local law enforcement to protect victims and prosecute crimes in which we filed over 25,000 cases,” Hoskin said. “It is incredibly dangerous that these district attorneys have instead chosen to ignore the law and longstanding legal precedents by seeking to prosecute criminal cases over which they do not have jurisdiction. This is not only an attack on tribal sovereignty, but a threat to the public safety of all Oklahomans. These officials are knowingly creating legal confusion for law enforcement and hurting the integrity of the cases involved — preventing proper prosecution, risking the entire case being thrown out, and forcing victims and their families into convoluted and confusing legal scenarios. I am outraged that these officials are putting political attacks against tribes before their responsibilities to Oklahomans and to law enforcement, and I am proud that the Cherokee Nation has moved to intervene in the federal suits to resolve this matter.”
Asked about the DOJ lawsuit against Ballard and Iski attempting to block their offices from prosecuting cases exactly like the ones Kunzweiler described, the Tulsa County DA seemed unconcerned about the potential for federal intervention.
“Well, that’s under the outgoing administration,” Kunzweiler said. “This wasn’t the Northern District U.S. Attorneys Office suing Matt Ballard, and it’s not the Eastern District suing Carol Iski, those DAs. It was the Department of Justice from Washington D.C. who at the basically midnight hour brings this action. I don’t think they will be able to sustain their burden even in federal court. They are, in essence, claiming that the state has zero authority to prosecute any Indian on any Indian Country (reservation) or Indian land. I think the Court of Criminal Appeals in Oklahoma did a great amount of effort navigating exactly why the state of Oklahoma ought to be able to exercise its concurrent jurisdiction.”
While the attorney filing the cases against Ballard and Iski is based in Washington D.C., the U.S. Department of Interior Tulsa office’s field solicitor is listed as “of counsel” in both lawsuits. The DOJ has not moved to dismiss either case as of publication of this article.
On Jan. 30, the Muscogee Nation filed two lawsuits against Ballard and Iski mirroring the DOJ suits, which helped ensure some form of the litigation will continue despite potential changes in federal policy amid the administration change. On Feb. 13, the Muscogee Nation sued Tulsa County, Kunzweiler and Regalado over their detention and prosecution of tribal citizens.
Read Kunzweiler’s letters to Nichols
