In a case involving the assault of a Tulsa police officer that further changes the jurisdictional landscape of eastern Oklahoma, the U.S. 10th Circuit Court of Appeals held July 30 that, when a misdemeanor assault is committed by an Indian against an Indian within Indian Country, the crime is the “exclusive jurisdiction of the tribal courts” and the federal government has no right to charge the perpetrator.
“When misdemeanor simple assault is committed by an Indian defendant against an Indian victim on Indian land, it is not an ‘offense against the laws of the United States,'” the federal appeals court wrote. “In prosecutions under the [Major Crimes Act], an Indian defendant, like any defendant prosecuted in federal court, is entitled to a jury instruction on a lesser-included offense if supported by the evidence, but a district court lacks subject matter jurisdiction under [Section 3231] to convict an Indian defendant for an offense that is not a federal crime.”
In its unanimous decision — binding on federal district courts in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming — the three judge panel explicitly acknowledged but rejected cases from four different circuits — the Fourth, Fifth, Eighth and Ninth — that had reached the opposite conclusion. Instead, the 10th Circuit judges found that crimes listed in the Major Crimes Act, such as felony assault, do not imply that federal courts have subject matter jurisdiction over their lesser included offenses, like misdemeanor assault.
“Contrary to their understanding, Keeble concerned only ‘procedural rights’ under the [Major Crimes Act] and not whether subject matter jurisdiction existed over unenumerated lesser-included offenses. And the reasoning in these opinions is not sufficiently grounded in the text of the act,” Judge Veronica Rossman wrote. “To be sure, this court is reluctant to create ‘unnecessary circuit splits.’ But, as we explain, there is ‘good reason’ to diverge from the apparent consensus.”
The case involved Native American rights activist Jason Robert Hopson, who was indicted with felony assault in March 2022 for assaulting Tulsa Police Department officer Ronald J. Neal during a Feb. 7 protest at the Page Belcher Federal Building in Tulsa within the Muscogee Nation Reservation. The protestors were advocating for President Joe Biden to grant clemency to Leonard Peltier, who was convicted for killing two FBI agents during the Pine Ridge Shootout of 1975. (Biden did grant Peltier clemency Jan. 19 before leaving office.)
Neal arrived at the February 2022 protest in an unmarked police car, according to the opinion, and one protester told him he should “go.” Neal got out of his car and told the protester to move, and protesters “yelled at Officer Neal,” “banged a drum close to [his] face,” and “closed in around him.” Hopson stood face-to-face with Neal, and Neal shoved Hopson.
“A few moments later, several people surrounded Officer Neal and began pushing and punching him. Officer Neal tried to move away, but the group, including Mr. Hopson, continued to run after him,” Rossman wrote. “Officer Neal eventually fell backwards, and Mr. Hopson fell forwards — landing directly next to Officer Neal.”
During the incident, Neal tore his ACL, meniscus and a ligament in his elbow. The ACL injury required surgery. Hopson was arrested in April 2022, and at trial he was acquitted of felony assault but convicted of the lesser-included offense of misdemeanor simple assault. Hopson appealed, arguing the federal district court did not have jurisdiction to sentence him for the crime of simple assault.
The 10th Circuit agreed, finding that federal courts have jurisdiction over Indian-on-Indian crimes only when authorized by the Major Crimes Act and that lesser included offenses are not authorized by implication.
“Likely because our sister circuits read Keeble to implicitly decide the jurisdictional question, their opinions do not sufficiently grapple with the statutory text. The Fifth, Ninth, and Fourth circuits did not meaningfully address the text of the act. The Eighth Circuit marshaled the text, but its reasoning is unpersuasive,” Rossman wrote. “It bears repeating: ‘[T]o uphold the jurisdiction exercised in’ federal prosecutions of Indian-against-Indian conduct in Indian Country, the Supreme Court ‘requires a clear expression of the intention of Congress.’ We fail to see how the Eighth Circuit’s interpretation of the statutory text heeds this well-settled directive.”
While federal prosecutors had told the court that they intend to seek a rehearing of the issue, they had not submitted the filing prior to the publication of this article.
The new ruling holds that Oklahoma’s three federal district court lack jurisdiction over misdemeanor assault cases that occur in Indian Country where both parties are Indians, and it states that tribal courts are the proper venue for such cases. The ruling also creates a circuit split, increasing the likelihood the U.S. Supreme Court would accept an appeal on the issue to settle the split.
The 10th Circuit ruling comes amid a cascade of changes to and conflicts about how tribal citizens are prosecuted for offenses in Tulsa County, which is split between the Muscogee and Cherokee reservations. Under the City of Tulsa’s pending settlement agreement with the Muscogee Nation, any criminal prosecution of a misdemeanor assault by an Indian in the Muscogee Reservation will be transferred to the Muscogee Nation’s District Court in Okmulgee. However, the Muscogee Nation’s Attorney General’s Office had not filed new charges against Hopson for the assault of Neal prior to publication of this article. The tribe did file a charge against Hopson for obstructing an officer in March 2023, but that charge was dismissed five months later. Online court records are unclear if the 2023 charge stemmed from the 2022 assault or a separate incident.
Circuits split on SCOTUS’ 1973 Keeble decision
In 1973, the U.S. Supreme Court narrowly held in Keeble v. United States that Indian defendants charged in federal court are entitled to a jury instruction on lesser included offenses. Since that decision, four federal circuits of appellate courts have determined the requirement that Indian defendants receive a lesser included offense during jury instructions must imply federal courts have subject matter jurisdiction over the offense, despite the fact they are not specifically listed in the Major Crimes Act.
The Major Crimes Act grants federal courts jurisdiction over specific crimes committed by Indians in Indian Country. The General Crimes Act revokes federal courts jurisdiction to adjudicate all other cases involving crimes committed by Indians against Indians within Indian Country, cases against Indians who have already been prosecuted for the crime in tribal court, or any other criminal case reserved to tribal governments by treaty.
The Major Crimes Act specifically allows federal courts to charge Indian defendants with murder, manslaughter, kidnapping, maiming, sexual abuse, incest, felony assault, assault of someone under 16, felony child abuse or neglect, arson, burglary, robbery, or theft.
But in Hopson’s case, the 10th Circuit disagreed, finding the General Crimes Act clearly limited federal jurisdiction over Indian-on-Indian crimes to those specifically listed in the Major Crimes Act.
“‘Except for the offenses enumerated in the Major Crimes Act,’ the Supreme Court has held, ‘all crimes committed by enrolled Indians against other Indians within Indian Country are subject to the jurisdiction of tribal courts,'” Rossman wrote. “Nowhere does [the Major Crimes Act] or (Title 18 Section) 3242 make misdemeanor simple assault — committed by an Indian against another Indian in Indian country — a violation of federal criminal law. Only a tribal court may punish Mr. Hopson for the crime of misdemeanor simple assault committed in Indian Country against an Indian victim. The district court therefore lacked subject matter jurisdiction to enter judgment of conviction against Mr. Hopson for the offense of misdemeanor simple assault.”
According to the three-judge panel covering federal district courts in Oklahoma, jury instructions in the 10th Circuit are for the “benefit” of the defendant and do not imply jurisdiction for any lesser-included offense. Since tribal governments charging Indians for the same crimes they have been charged for in federal court does not constitute double jeopardy, tribal governments could file misdemeanor assault charges in tribal court if an Indian defendant is acquitted of felony assault in federal court.
The 10th Circuit’s decision appears hard to reconcile with recent Oklahoma Court of Criminal Appeals decisions, such as O’Brien v. City of Tulsa, where the state’s highest criminal court held that the state has subject matter jurisdiction for crimes involving non-member Indians in Indian Country. While the 10th Circuit’s decision does not change the effects of O’Brien in state courts, it does signal that the 10th Circuit recognizes a sphere of exclusive tribal criminal jurisdiction — and an absence of state jurisdiction — while being skeptical of complex readings of subject matter jurisdiction.
“‘Clarity would be facilitated if courts and litigants used the label ‘jurisdictional’ … only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Rossman wrote. “Between the General Crimes Act and the Major Crimes Act, what remains of exclusive tribal jurisdiction, therefore, are charges involving an Indian defendant, an Indian victim, and an offense committed in Indian Country that is not enumerated under [Section 1153(a)].”
Read the 10th Circuit decision in Hopson
