In the past two weeks, Oklahoma Attorney General Gentner Drummond has weighed in on two of the hottest topics for the Republican Party during recent election cycles: abortion and drag.
While the attorney general wrote a “guidance memorandum” to doctors regarding abortion and an official opinion regarding a law critics characterized as a “drag ban,” Gov. Kevin Stitt has been embroiled in conflict with the city of Tulsa. The same week Stitt sent the Oklahoma Highway Patrol to clear out homeless encampments in the city, Tulsa attorneys have filed response in an unrelated dispute between the governor and the city he used to call home. That particular tiff is over a settlement agreement between the Muscogee Nation and the City of Tulsa that Stitt characterizes as “[making] it impossible for elected officials and Oklahoma law enforcement to protect their communities.”
This roundup contains the latest legal happenings from two of Oklahoma’s highest officeholders, along with a state Supreme Court order on suspect social studies standards, a new federal court ruling regarding jurisdiction for Native American citizens and the Oklahoma Gamefowl Commission’s latest controversy. Read on to learn more.
OK Supreme Court issues temporary stay on social studies standards
In one of two cases challenging the social studies standards controversially approved by the State Board of Education earlier this year, the Oklahoma Supreme Court issued a temporary stay Monday blocking their implementation weeks into the 2025-2026 school year.
Five justices — James Winchester, James Edmondson, Douglas Combs, Noma Gurich and Richard Darby — sided the order assuming original jurisdiction and issuing the stay.
“No further action shall be taken and no public funds shall be spent by respondents the Oklahoma State Board of Education or the Oklahoma State Department of Education to enforce or implement the 2025 Oklahoma Academic Standards for Social Studies pending further order of this court,” the justices wrote. “Respondents shall treat the 2019 Oklahoma Academic Standards for Social Studies as the applicable academic standards pending further order of this court.”
Justice M. John Kane IV dissented, noting that he “would remand to the trial court for a first instance adjudication.”
The social studies standards caused a kerfuffle this spring when new State Board of Education members voted for the revisions without them fully being posted publicly or internally for review.
Drummond issues ‘simple’ abortion memorandum to physicians
Physicians in Oklahoma recently received a memorandum from the Oklahoma Attorney General’s Office regarding abortion that advises doctors “should strive to protect the mother and the child, if possible” during medical emergencies.
The four-page memorandum, cited by the AG’s office as “a simple guidance memorandum, not an official legal opinion from the attorney general,” was issued Sept. 5 to all Oklahoma physicians.
The analysis is broken down into three sections that reiterate Oklahoma’s abortion laws — which are some of the strictest in the nation.
“In its ongoing effort to help relevant individuals and organizations understand these decisions, the Office of the Attorney General offers the following guidance to physicians regarding Oklahoma’s abortion laws. This guidance should be read in conjunction with the attorney general’s existing guidance to law enforcement on this same topic,” the memorandum states.
Attorney General Gentner Drummond, in a November 2023 law enforcement memorandum, emphasized “that criminal prosecution should be pursued only for those who intentionally perform or assist with an elective or on-demand abortion in Oklahoma.”
Conversations about a potential initiative petition on abortion rights in Oklahoma remain active, a conversation that got more difficult after Gov. Kevin Stitt signed SB 1027 into law earlier this year. The bill limits the number of signatures that can be gathered in each county and requires those collecting signatures to be residents of Oklahoma. The law is currently being litigated in front of the Oklahoma Supreme Court.
10th Circuit: Prosecutors must prove ‘Indian status’ at the time of the crime
The 10th U.S. Circuit Court of Appeals has held that federal prosecutors charging a crime where Indian status is one of the elements must prove the defendant was Indian “at the time of the offense.” The holding stems from a manslaughter case from the U.S. District Court for the Eastern District of Oklahoma where Lloyd Hatley, a Cherokee Nation citizen, was convicted of manslaughter after rear ending a car making an illegal left turn. The accident resulted in the death of Mary Nappa, a passenger in the car.
A jury acquitted Hatley of other charges, but found him guilty of manslaughter. He appealed to the 10th Circuit, arguing federal prosecutors failed to prove his Indian status at the time of the offense beyond a reasonable doubt at trial. The court agreed, finding that prosecutors failed to establish adequate proof of the element of Indian status.
“As explained, [the Major Crimes Act] confers exclusive federal criminal jurisdiction over ‘any Indian who commits against the person or property of another Indian or person’ (for) any of the offenses enumerated in the statute. That statutory language plainly requires that the individual who commits the offense must be an ‘Indian’ within the meaning of the statute (that is, the individual must have Indian blood and be recognized as an Indian), which in turn necessarily suggests that the individual must be an Indian at the time of the offense,” wrote Judge Allison Eid, who succeeded U.S. Supreme Court Neil Gorsuch on the court. “After all, if an individual commits an offense prior to enrolling in, or after disenrolling from, a tribe, then the individual was not an Indian at the relevant time — and so an Indian did not commit the offense.”
To be an Indian for federal criminal jurisdiction purposes, a defendant must have both “Indian blood” and “tribal recognition.”
Prosecutors had introduced the following evidence to prove Hatley’s Indian status:
- a verification letter from the Cherokee Nation prepared for litigation;
- testimony from Derrick Vann, a tribal employee who served as the Cherokee Nation’s records custodian; and
- testimony from Hatley himself.
The 10th Circuit found the verification letter and Vann’s testimony were not adequate evidence to prove Hatley was an Indian at the time of the offense. When Hatley testified he was a member of the Cherokee Nation, prosecutors failed to ask him when he enrolled with the nation. The verification letter and testimony on Hatley’s enrollment date at trial conflicted.
The court reminded prosecutors that CDIB cards are “self-authenticating documents” that can be admitted to prove Indian blood. In order to prove tribal recognition, prosecutors should submit tribal documents through the business records exemption to the evidentiary bar on hearsay.
“To satisfy Rule 803(6), the government must demonstrate that the tribal record (1) was ‘prepared in the normal course of business,’ (2) was prepared ‘at or near the time of the events recorded,’ (3) is ‘based on the personal knowledge of the entrant or of a person who had a business duty to transmit the information to the entrant,’ and (4) ‘indicates the sources, methods, and circumstances by which the record was made trustworthy,'” Eid wrote.
The three-judge panel echoed an earlier 9th Circuit Court of Appeals decision that was concerned looking for Indian status generally created future legal problems.
“First, the court reasoned that ‘if the relevant time for determining Indian status were earlier or later, a defendant could not ‘predict with certainty’ the consequences of his crime at the time he commits it,'” Eid wrote. “‘Moreover,’ the court noted, ‘the government could never be sure that its jurisdiction, although proper at the time of the crime, would not later vanish because an astute defendant managed to disassociate himself from his tribe.'”
AG opinion indicates Oklahoma’s ‘drag ban’ law does not ban most drag
Most drag performances remain legal in Oklahoma after the passage of HB 1217, according to a formal opinion issued by Attorney General Gentner Drummond. The opinion found the new law does not ban all drag performances in the state, but only ones which are “obscene.”
“Whether a performance contains obscene material requires an analysis of the specific nature of the performance, its content and its purpose, as well as consideration of the performance in light of relevant community standards,” Drummond wrote. “It is likely that some drag performances, when analyzed under this framework, contain obscene material. But whether a specific drag performance contains obscene material involves fact questions that are outside the scope of an attorney general opinion.”
Under Oklahoma law, “obscene material” includes a representation of “sexual conduct” that:
- “is patently offensive as judged by the average person applying contemporary community standards;”
- “appeals to prurient interest in sex as its dominant theme;” and
- “lacks serious literary, artistic, educational, political or scientific value when taken as a whole.”
The three requirements, based on the U.S Supreme Court’s 1973 decision in Miller v. California, allow for some differences between communities since contemporary community standards may differ between Tulsa and Beaver counties, while ensuring works with societal value are protected. Drag performances typically have an artistic or political value associated with them, which offers some protection to drag performers.
Oklahoma law also defines “sexual conduct,” meaning performers can only be charged if they engage in an outlined action during their performance. Actions which are legally sexual conduct include:
- sexual intercourse, actual or simulated;
- “deviate sexual conduct, including oral and anal sodomy;”
- acts of masturbation;
- acts of sadomasochistic abuse;
- “flagellation or torture by or upon any person who is nude or clad in undergarments or in a costume which is of a revealing nature;”
- “the condition of being fettered, bound, or otherwise physically restrained on the part of one who is nude or so clothed;”
- “acts of excretion in a sexual context;” and
- “exhibiting human genitals or pubic areas.”
Even if a drag performer engaged in “sexual conduct” during their performance, a prosecutor would still need to show the performance offended local community standards, appealed to sex as its dominant theme and lacked other societal value.
Tulsa responds to governor’s suit
Attorneys for the City of Tulsa have asked the Oklahoma Supreme Court to deny Gov. Kevin Stitt’s request that the court prevent the city from finalizing a proposed settlement agreement with the Muscogee Nation. Stitt has vehemently opposed the settlement, which would transfer the prosecution of criminal cases involving tribal citizens with Indian blood on the Muscogee Reservation from municipal court in downtown Tulsa to the Muscogee Nation District Court in Okmulgee.
The city’s brief, dated Sept. 9, focused on the argument that law enforcement and criminal prosecutions continue in Tulsa “despite [Stitt’s] assertions to the contrary.”
“Law enforcement activities conducted by respondents regarding Indians in the Muscogee Nation have not ceased under the federal court settlement,” assistant city attorney Hayes Martin wrote. “Petitioner notes that the litigation settlement calls for the city to dismiss pending municipal prosecutions and not initiate new prosecutions against known Indian defendants for conduct occurring on the Muscogee Reservation, but petitioner entirely disregards the subsequent paragraphs stating that the dismissed cases and future cases will be referred to the Muscogee Nation for prosecution.”
The city also argued Stitt’s petition was an attempt to circumvent a federal court ruling on Stitt’s motion to intervene in the settlement case.
“Rather than wait for the federal district court to rule on his pending motion, the governor is now attempting to circumvent the regular processes he invoked and is seeking extraordinary writs from this court,” Martin wrote. “Under long-standing Oklahoma case law, this attempted workaround is not permitted and this court should decline to entertain it.”
One of Stitt’s arguments contended the settlement agreement was an “intergovernmental cooperative agreement” that should have required the approval of the Joint Committee on State-Tribal Relations and the governor’s office. Tulsa argued in its response that the settlement was based on a cross-deputization agreement already approved by the state.
“In 2006, the State of Oklahoma entered into a cross-deputization agreement with the Bureau of Indian Affairs. The cross-deputization agreement was approved in accordance with [Title 74 Section 1221]. It provides for the cross-deputization of law enforcement to ‘make lawful arrests in Indian Country within or near the jurisdiction of the tribe,'” Martin wrote. “Pursuant to the state-approved cross-deputization agreement, Tulsa Police Department officers have the power to enforce both federal and tribal laws within the boundaries of the Muscogee Nation Reservation, all in compliance with [Title 74 Section 1221]. As such, the city’s ability to enforce tribal law and refer charges to the Muscogee Nation for prosecution is entirely state sanctioned under the existing agreements.”
The briefs come as Stitt increases the intensity of his opposition to Tulsa Mayor Monroe Nichols. After feuding on the issue of tribal sovereignty for several months, Stitt ordered Operation SAFE, an Oklahoma Highway Patrol action removing homeless encampments from state land in Tulsa. Nichols has criticized the move as disrupting the city’s existing plan to address homelessness, while Stitt has touted the actions as improving the city.
Retired McAlester police officer files suit against city
A retired McAlester police officer has filed a lawsuit against his former employer, alleging the city cannot deny him a photographic firearms identification card that is issued to officers who retire under the terms of the federal Law Enforcement Officers Safety Act. The card allows for the concealed carry of a firearm by retired officers.
The plaintiff, retired McAlester Police Department officer Richard Bedford, said in his petition that after he medically retired from the department with post-traumatic stress syndrome, he made a request to MPD for an identification card under the LEOSA, which was denied.
“It should be noted that the defendant, at every stage of the proceedings related to plaintiff’s disability retirement application, contested the application and maintained that the plaintiff was able to perform the duties of a law enforcement officer regardless of his diagnosed conditions,” Bedford’s petition said. “At no time did any medical professionals employed by the defendant ever reach the conclusion that the defendant was unqualified as a result of mental illness to be granted a photogenic identification card under LEOSA.”
Bedford asked a Pittsburg County District Court judge to find that he is qualified under the act for the firearms identification card and that the city has no legal basis to deny his request. He also asked for attorney fees and costs.
The McAlester City Council unanimously voted Sept. 9 to employ outside counsel to represent the city in the lawsuit.
Ethics Commission sends Oklahoma Gamefowl Commission PAC a ‘counteroffer’
At its Sept. 11 meeting, the Oklahoma Ethics Commission voted to submit a “counteroffer settlement” to the Oklahoma Gamefowl Commission PAC, which is undergoing investigation for campaign finance violations. The item was listed as Case No. 2024-5 on the day’s agenda.
“What that means is they have proposed a settlement to us,” said Ethics Commission executive director Lee Anne Bruce Boone. “We always consider whatever is, you know, submitted. And so [the commissioners] want to counteroffer. So, there could be a settlement between now and the next meeting, or there could not be.”
The Oklahoma Gamefowl Commission PAC had been under investigation pursuant to Ethics Rule 2, which regards campaign finances. At the time, Bruce Boone said investigation into the commission began in Nov. 2024 when the Ethics Commission “determined there was reasonable cause to believe violations of Rule 2 may have occurred and authorized a formal investigation.”
The Oklahoma Gamefowl Commission, a controversial organization owing to its stance that the state’s penalties against cockfighting should be relaxed, recently found itself in hot water after co-founders Anthony DeVore and Blake Pearce were filmed by an animal rights advocacy group at an illegal cockfight in the Shady Grove community of McIntosh County. Leaders of the group Animal Wellness Action have called for state, federal and tribal prosecutors to pursue charges against the two men and others engaged in cockfighting in Oklahoma.
