After two federal judges ruled that Indians within tribal reservation boundaries in Oklahoma have fewer civil rights protections than non-Indians, a man who claims he was illegally detained by a Duncan police officer acting on behalf of the Chickasaw Nation has asked the 10th Circuit Court of Appeals to reverse the dismissal of his case.
Shawn Walden’s civil rights case against the City of Duncan was dismissed Sept. 22 in the U.S. District Court for the Western District of Oklahoma. One week later, on Sept. 29, a judge in the U.S. District Court for the Eastern District of Oklahoma dismissed the civil rights lawsuit brought by Barbara Barrick against an Oklahoma game warden and two McCurtain County deputy sheriffs for the death of Bobby Barrick. Walden is a citizen of the Choctaw Nation, as was Barrick.
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.
Both lower court decisions found the authority for a state officer to interact with an Indian in Indian Country is derived from a cross-deputization agreement with a tribal government, and therefore state police are acting under tribal authority and not state authority during such interactions. In most cases, if an individual feels their civil rights have been violated by police officers, they may file a lawsuit under U.S. Code 42, Section 1983.
However, Section 1983 claims are not allowed to be brought against government officials acting under tribal authority, so the lower court decisions effectively limit the civil rights of tribal citizens in most of eastern Oklahoma by preventing federal courts from adjudicating civil rights lawsuits that involve cross-commissioned officers.
While the decisions provide an incentive to municipalities and state agencies to cross-deputize their officers with tribal governments to shield themselves from potential Section 1983 liability in federal court, they also mean Indians in nearly half of Oklahoma lack the ability to challenge a deprivation of their civil rights when encountering city, county or state police in public or in jail.
Walden filed a notice to appeal his case’s dismissal Oct. 1, which puts the controversial question about the extent of Indians’ rights before the 10th Circuit appellate court in Denver. While the U.S. District Court for the Northern District of Oklahoma does not appear to have addressed Section 1983 claims involving cross-commissioned officers so far, a 10th Circuit ruling would be binding on all three of Oklahoma’s federal district courts.
Wyrick dismisses Walden’s lawsuit against City of Duncan
On Sept. 22, U.S. District Court for the Western District of Oklahoma Judge Patrick Wyrick dismissed the federal civil rights lawsuit brought by Walden against the City of Duncan and one of its police officers.
Walden, a Choctaw Nation citizen, was arrested by Duncan Police Department officer Christian Archer on Dec. 30, 2022, for alleged possession of a firearm while intoxicated. He was held in the Stephens County Jail for five days. Walden claimed that he passed a field sobriety test and was not offered a breathalyzer test when Archer allegedly demanded he consent to a blood test. After Walden refused, Archer arrested him and allegedly “executed a false affidavit claiming that Mr. Walden was visibly intoxicated.”
In November 2023, Walden sued Archer and the City of Duncan under Section 1983 of federal law, arguing the arrest violated his civil rights. But in defense of the lawsuit, attorneys for Archer and the city successfully argued that Archer was acting under his tribal cross-commission and therefore under the Chickasaw Nation’s authority instead of the state’s.
“The court finds that Archer was incapable of wielding the power of state law against Walden. Archer’s authority over Walden flowed from a grant from the Chickasaw Nation,” Wyrick wrote. “What’s more, the court has been incapable of finding any case law that stands for the proposition that an officer is capable of acting under state law and tribal law simultaneously. Any authority that Archer exercised over Walden was derived from tribal law, rather than state law, and it is well-established that a ‘[Section] 1983 action is unavailable for persons alleging deprivation of constitutional rights under color of tribal law.'”
Walden filed to appeal Wyrick’s ruling to the 10th Circuit Court of Appeals on Oct. 1.
Heil III dismisses Barrick’s lawsuit against McCurtain County deputies, state warden
On Sept. 29, District Judge John Heil III dismissed the civil rights lawsuit brought by Barbara Barrick against Oklahoma Game Warden Mark Hannah and McCurtain County Sheriff’s Office Deputies Matthew Kasbaum and Quentin Lee for the death of her husband, Bobby Barrick.
Before sunrise on March 13, 2022, Kasbaum responded to a call to help Barrick, whose truck was stuck in the mud, according to the “undisputed facts” outlined in Heil’s order. Later that day, Barrick was dropped off at a closed corner store in Eagletown where he ran through the building’s glass front door, got into the cab of a semi-truck and then jumped onto a woman’s car — all while making statements about someone or multiple people trying to kill him.
Contractors who were working at the corner store eventually “hog-tied Barrick with his hands behind his back and his ankles bound together.” Kasbaum and Lee, the McCurtain County deputy sheriffs, were dispatched to the scene along with EMS services. When they arrived, Kasbaum and Lee untied Barrick and then handcuffed him before placing him in one of their vehicles.
Barbara Barrick’s attorneys had argued in their initial complaint that Kasbaum, Lee and Hannah gave Barrick conflicting instructions to both stay in and get out of the vehicle, causing Barrick to plead for EMS workers’ assistance. The complaint accused Kasbaum and Lee of using stun guns on Barrick four times, causing him to “fall face down on the parking lot,” dragging him from the vehicle, “unreasonably” striking him with a baton and restraining him with various dangerous techniques before he was given medical treatment. Barrick later died at the Paris Regional Medical Center in Texas.
Kasbaum, Lee and Hannah argued that because they were cross-commissioned with the Choctaw Nation they were acting under tribal authority — not the color of state law — when they interacted with Barrick. Heil agreed.
“Again, regardless of whether defendants maintained state law authority, defendants, in arresting an Indian in Indian Country, were operating under tribal law,” Heil wrote. “Under these undisputed facts, the court concurs that tribal law took precedence.”
As of publication of this article, Barbara Barrick has not filed an appeal to the dismissal.
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Freedmen status under Section 1983 unclear
Neither Walden’s nor Barrick’s case involves or has addressed how these jurisdictional nuances would be affected if the petitioner were a tribal citizen but lacked Indian blood. Currently, federal courts look for both tribal citizenship and an Indian blood quantum when determining Indian status for purposes of criminal jurisdiction. However, while Section 1983 claims involve a criminal aspect — the exercise of police power by a state actor — they are civil lawsuits.
While tribal citizens without an Indian blood quantum, like many Cherokee Freedmen, are not considered Indian for the purposes of criminal jurisdiction, they are generally considered Indians for most civil purposes because the U.S. Supreme Court has repeatedly held that being Indian is a political category focused on membership.
Federal courts have yet to address whether a tribally cross-commissioned state officer acts under state authority or tribal authority whenever they interact with tribal citizens that lack an Indian blood quantum in Indian Country. Likewise, questions about whether tribal Lighthorse officers cross-commissioned by state entities can be sued under Section 1983 by non-tribal citizens have also not reached the court.
