After some speculation the administration of President Donald Trump might dismiss a pair of U.S. Department of Justice lawsuits filed against district attorneys pursuing criminal cases against tribal citizens who committed crimes on Indian Country Reservations, federal attorneys appeared to stay the course by submitting briefs in support of the Cherokee, Chickasaw and Choctaw nations’ motions to join the litigation.
On Jan. 22, the three tribal governments filed joint motions to intervene in the U.S. District Court for the Northern District of Oklahoma case against District Attorney Matt Ballard and in the U.S. District Court for the Eastern District of Oklahoma case against District Attorney Carol Iski. Trevor Pemberton, Ballard and Iski’s attorney, criticized the federal government for launching an “attack on an elected Oklahoma district attorney and this state’s judicial system” while requesting the court deny the nations’ requests.
On Feb. 10, the DOJ requested additional time before filing their next motion so the Trump administration could review the cases, which were filed just before Christmas. Even before the department subtly announced it was reconsidering its position, Tulsa County District Attorney Steve Kunzweiler said he was unconcerned with the suits because they were filed “under the outgoing (President Joe Biden) administration.”
However, on Feb. 20, the DOJ appeared to signal it was continuing its position on tribal sovereignty, despite the change in administration, by filing motions in support of the tribes in both cases. The same day, Pemberton, a former judge on the Oklahoma Court of Civil Appeals and former general counsel to Gov. Kevin Stitt, filed his briefs opposing the nation’s request. On Feb. 28, Pemberton filed motions to dismiss in both cases.
While the first month of the Trump administration saw tribal governments concerned with birthright citizenship arguments, whether federal funding will be cut and the detention of tribal citizens in immigration raids, the administration’s overall policy towards Native Americans is more “uncertain.” Some tribal leaders have embraced Trump, citing the appointment of U.S. Supreme Court Neil Gorsuch amongst other accomplishments, and he reportedly won the popular vote among tribal citizens by six points. More locally, Choctaw Nation Chief Gary Batton attended the 2024 Oklahoma City fundraiser headlined by Vice President J.D. Vance. Trump is known for wanting to reward supporters, which could be a boon to tribal sovereignty advocates, but it is too soon to tell exactly what Trump’s Native American policy will be.
‘Effectively reverse’ O’Brien: Pemberton critiques federal intervention
In the lawsuits filed by the Department of Justice, Pemberton represents both Ballard — the DA for Rogers, Craig and Mayes counties — and Iski, the top prosecutor for Okmulgee and McIntosh counties. On Feb. 21, he filed responses to the tribes’ motions to intervene in both cases. On Feb. 28, he filed motions to dismiss in both cases. Aside from certain sections specific to the facts for each DA, the arguments and texts are identical.
In their filings, Ballard and Iski argue the suit, and the nations’ motion to join it, were clearly a direct response to the Oklahoma Court of Criminal Appeals’ decision in City of Tulsa v. O’Brien, which held the city has criminal jurisdiction to prosecute non-member tribal citizens who commit crimes within Indian Reservations.
“Both [the U.S.’] complaint and [the nations’] motion were filed weeks after a recent decision by the Oklahoma Court of Criminal Appeals that directly addressed and resolved their arguments,” Pemberton wrote in the Feb. 21 brief. “Granting any relief would require this court to effectively reverse that decision and interfere with ongoing state district court and OCCA proceedings.”
Both Ballard and Iski filed at least seven criminal cases against non-member tribal citizens within Indian Country reservation boundaries before the O’Brien decision. In McIntosh County District Court, defense attorneys filed motions to dismiss charges for lack of state jurisdiction against tribal citizens in at least four cases, but Associate Judge Brendon Bridges rejected each.
In Rogers County, Ballard has charged at least three non-member tribal citizens accused of committing crimes within the Cherokee Reservation, but he appears to lack a cooperative judge like Bridges. Navajo citizen Brayden Bull‘s case was initially dismissed by Special Judge Terrell Crosson before the OCCA reversed Crosson’s decision and ordered the case to continue. (Bull, who was also charged in tribal and federal court, is currently serving a federal prison sentence.) The motions to dismiss charges against Chickasaw citizen Tony Demond Williams and Choctaw citizen Eric Ashely are currently pending in Rogers County District Court.
Pemberton argues the lawsuit should be dismissed and that the proper method for tribes or the DOJ to stop district attorneys in eastern Oklahoma from prosecuting tribal citizens would be by appealing an Oklahoma Court of Criminal Appeals ruling to the U.S. Supreme Court. (DOJ attorneys face a March 28 deadline to respond to Pemberton’s motions to dismiss the two cases.)
“There has long existed in our judicial system ‘a national policy forbidding federal courts to stay or enjoin pending state court proceedings.’ Grounded in notions of federalism and comity, this policy demands that ‘[w]hen there is a parallel pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution,’” Pemberton wrote in the Feb. 27 brief. “The complaint should be dismissed for lack of standing, or alternatively, under the Younger abstention or Colorado River abstention doctrines.”
In a broad reading of the O’Briend decision, Pemberton also argued that the state’s highest criminal court decided that district attorneys — not just municipalities — have criminal jurisdiction over non-member tribal citizens. As a result, he tribes should brief their arguments against state jurisdiction to the Court of Criminal Appeals.
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.
“Though movants may be dissatisfied with the outcomes, Oklahoma state courts have adjudicated the issues raised by them. If the criminal defendants at issue wish to further challenge state jurisdiction, they’ll be afforded the right to seek relief from the OCCA,” Pemberton wrote. “And if movants prefer a voice in such proceedings, they may participate as amicus curiae, as they or other tribes have done in Williams and did in McGirt and Castro-Huerta. However, this federal litigation is not the appropriate venue to address movants’ unspecified interests.”
Every tribe attempting to intervene in the federal lawsuits has already filed at least one brief, if not more, on the issue of criminal jurisdiction with the Court of Criminal Appeals. Tribal leaders have appeared hesitant to bring another criminal jurisdiction case to the U.S. Supreme Court since the Oklahoma v. Castro-Huerta decision held that state governments have concurrent jurisdiction when a non-Indian defendant commits a crime against an Indian victim, narrowing the effects of the McGirt decision and upending decades of federal precedent.
“As a tribal elected official and an attorney, I would advise to think long and hard about an appeal in this instance,” Osage Congressman Billy Keene tweeted after the O’Brien decision.
For tribal leaders worried a majority of the current U.S. Supreme Court’s justices may take an appeal as another opportunity to further limit or overturn the McGirt decision, focusing on district court lawsuits to enforce federal Indian law — which currently contradicts the Oklahoma Court of Criminal Appeals’ decision in O’Brien — likely seems a safer option.
Pemberton, on the other hand, wrote the issue was “now ripe for appeal to the U.S. Supreme Court.”
Despite admin change, DOJ keeps lawsuits, criticizes ‘Bracker balancing’
Like Pemberton, federal attorneys practiced their efficiency by filing virtually identically briefs supporting the tribes’ motions in both cases on Feb. 21.
“The United States brought this action in part to protect the inherent sovereign power of tribes to exercise criminal jurisdiction over Indians in Indian Country, but the United States cannot adequately represent all the nations’ interests here,” attorneys for the DOJ wrote. “As the nations put it, each nation has ‘a specialized interest,’ not shared by the United States, ‘in the scope of state jurisdiction within its reservation arising from its ‘specific interest’ in its ‘political sovereignty.’”
The DOJ also agreed with the tribes’ argument that the “Bracker balancing test” should not have applied in the criminal context, while noting if the test is applied then the tribes should be included in the litigation.
“Although the United States and nations agree that Bracker balancing is not appropriate in determining criminal jurisdiction over Indians in Indian Country, if the Bracker analysis is applied, the nations are uniquely and best situated to articulate their own interests in exercising exclusive criminal jurisdiction over Indians in Indian Country,” the DOJ brief said. “The nations have a specialized interest in and unique knowledge about the issues in the case, as well as their own claims against defendant, and their participation would assist the court — making clear that intervention is appropriate.”
