Four tribes in Northeastern Oklahoma have sued newly installed state Attorney General Gentner Drummond, alleging that he is thumbing his nose at the U.S. Supreme Court’s ruling in McGirt v. Oklahoma that Native Americans who commit crimes against other Natives on established reservations should be tried in tribal or federal court.
Lining up together against Drummond and Douglas Pewitt, the District Attorney of Ottawa County: The Seneca-Cayuga Nation, the Ottawa Tribe, the Eastern Shawnee Tribe, and the Miami Tribe.
According to the suits filed on U.S. District Court in Tulsa, the state, through Drummond, is attempting to “disregard and even undermine the (Supreme Court’s) holding in McGirt” – and thus tribal sovereignty – by selectively appealing decisions by judges in Ottawa County District Court. Those judges have ruled that the state had no jurisdiction to prosecute Native Americans on the four tribes’ historic reservations, which Congress has never formally disestablished.
The Osage Nation has similarly been trying to reaffirm its jurisdiction over Native Americans on its historic reservation by attaching itself to two ongoing criminal prosecutions in Osage County. One case got kicked back to Osage County District Court by the Oklahoma Court of Criminal Appeals, which ruled the defendant in that case should be tried and sentenced before the issue should be tackled, and the other is pending before the OCCA, awaiting briefing from the state.
“We have to wait for a defendant to raise this; we can’t do it on our own volition,” said Clint Patterson, Attorney General for the Osage Nation. “It’s not like a civil case where we’re the named party.
“We have to play whack-a-mole and wait for the case to come to us.”
When the going gets rough, move to dismiss
Attorney General Drummond has pursued at least one case against a man on the Eastern Shawnee reservation right up to the brink of the United States entering the fray on behalf of the Cherokee defendant – only to drop the case in February, just days before the United States’ brief was due, and when it looked like the facts would lead to an adverse ruling for the state.
“This represents the emergence of a pattern of conduct in which the State Defendants attempt to cherry-pick test cases for assertion of State jurisdiction over Reservation Indians, only to abandon the cases when the jurisdiction defects become apparent and they risk an adverse decision on State jurisdiction,” wrote Scott B. Goode, the chief counsel for the Seneca-Cayuga.
Goode added that Drummond, who took office in January, issued a letter to Ottawa County DA Pewitt in early March, that ordered Pewitt to prosecute both Indians and non-Indians alike within the boundaries of Ottawa County, the only exceptions being against Natives within the Cherokee and Quapaw reservations. Those two areas were excepted because the Oklahoma Court of Criminal Appeals has already ruled Indian defendants within those reservations must be prosecuted in federal or tribal courts.
Drummond’s order, Goode wrote, “is a directive to continue to unlawfully assert State criminal jurisdiction over Indians in Indian country” in defiance of the U.S. Supreme Court’s McGirt ruling, as well as the state’s agreement that none of the four reservations has ever been disestablished, and multiple judicial rulings affirming that the reservations still exist.
Chipping away at McGirt
Drummond’s directive is but one of several indicators of attempts to water down the McGirt decision by the state of Oklahoma.
Some judges on the state Court of Criminal Appeals (OCCA) also appear to be poised to help peck at that decision, with at least one of them, Judge Gary Lumpkin, directing lawyers in a test case to brief the issues based on the dissent by Chief Justice John Roberts in the McGirt case.
Dissents are not case law, and it is highly unusual for them to be cited in legal arguments. It is even odder for a judge on an appellate court to demand that a dissent be included in a legal analysis.
Lumpkin’s concurring opinion in that OCCA case, Oklahoma v. Harry William Hull Jr., and his directive on Roberts’ dissent in McGirt, raised eyebrows and was noted in the lawsuits filed March 22.
The “5-page concurrence … suggests the intent by at least one judge of that [OCCA] court to ignore the McGirt case in future reservation boundary cases,” wrote Joseph F. Halloran, the Minnesota-based lead lawyer for the Ottawa, Eastern Shawnee and Miami tribes.
Halloran added that the persistent efforts by the state to illegally prosecute tribal members on Indian land are frustrating tribal and federal prosecutions of criminals.
The Hull case: ‘Nonmember Indians’
The Hull case provides insight into the arguments that Drummond is likely to raise as Oklahoma tries to weaken the Supreme Court’s McGirt decision and the follow-up thereto, called Castro-Huerta. Castro-Huerta took away some of McGirt’s clout, clarifying that Oklahoma and the federal government have concurrent jurisdiction over non-Indians who commit crimes against Indians in Indian Country.
Twenty-three Oklahoma district attorneys, the Oklahoma District Attorneys Council, the state Association of Narcotics Enforcers and the state Sheriffs’ Association joined up to file a brief in which they argue that not only does the state have the power to prosecute non-Indians who commit crimes against Indians in Indian Country, but that it also has the power to prosecute “nonmember Indians,” or Indians who commit crimes on land reserved for another tribe – like Hull, a Cherokee, allegedly stealing a car within the boundaries of the Eastern Shawnees’ historic reservation.
Removing nonmember Indians from federal jurisdiction is the inescapable conclusion that one must draw from Castro-Huerta, says the friend-of-the-court brief for the DA’s Council and others.
“To the extent there was any doubt about whether federal law silently preempts state authority over nonmember Indian crimes, those doubts must be resolved in favor of state jurisdiction,” says the brief crafted by Mithun Mansinghani, the Oklahoma City attorney for the DAs, narcs and sheriffs.
“To hold that Indians are immune from state prosecution merely because they committed their crime on the reservation of a tribe with which they have no affiliation would improperly treat distinct Indian tribes as fungible and would risk interpreting federal law as unconstitutionally tied to Indian race rather than political membership in the tribe for which the reservation was set apart. The Court should assiduously avoid such a result.”
Later in the brief, Mansinghani says that Hull and other defendants who are challenging state jurisdiction over them are “seeking to avoid justice under state law.” In fact, federal prosecutors have a much higher conviction rate than state prosecutors do; less than 1 percent of federal defendants who go to trial are acquitted and 90 percent of all defendants plead guilty without a trial, according to the Administrative Office of U.S. Courts. By comparison, Oklahoma has about a 60 percent conviction rate, according to a study published by the Michigan Law Review in 2020.
In a footnote, the brief also makes another note that should alarm tribes seeking to defend their sovereignty: A future step the state is ready to pounce on will be a case of a Native American committing a crime on his own tribe’s reservation. The state is waiting for a good case to hang its hat on to push its legal argument. Says the footnote: “By articulating the distinction between member and nonmember Indians, Amici [friends of the court] do not mean to suggest that the state lacks jurisdiction over member Indians committing crimes in Indian Country within state borders. However, that question will have to await the appropriate case that, unlike this one, involves an Indian committing a crime on the reservation set aside for the tribe in which the defendant is a member.”