On Aug. 30 of 2021, Nicholas O’Brien was driving down South Denver Avenue in Tulsa when he was caught driving under the influence of alcohol, possessing an open container of said alcohol and driving with an expired tag. He was stopped by a Tulsa police officer and charged.
More than a year later, O’Brien filed a motion to dismiss those charges in Tulsa’s municipal court because he is a citizen of the Osage Nation and his offenses occurred within the Muscogee Nation’s reservation. That motion kicked off a two-year legal battle between the City of Tulsa and his lawyer, who argued that since the McGirt decision, Tulsa doesn’t have jurisdiction over Native drivers.
Tulsa fought back. They argued on the merits of a pre-statehood law known as the Curtis Act. They claimed they had jurisdiction over Native citizens within the reservation. That was until the 10th Circuit ruled otherwise in a case known as City of Tulsa v. Hooper. The 10th Circuit ruled the Curtis Act no longer applied and no longer grants the city municipal jurisdiction. But Tulsa filed another motion to dismiss O’Brien’s motion to dismiss – again citing the Curtis Act and the 2022 Supreme Court decision in Castro-Huerta, which gave the state concurrent jurisdiction over crimes committed by non-Natives against Native people within reservation boundaries. Tulsa then filed an appeal, to which O’Brien filed another motion to dismiss Tulsa’s appeal.
That motion to dismiss was denied on Dec. 5 by the Oklahoma Court of Criminal Appeals by Judge Hudson.
Now, the case heads back to the Municipal Court.
“We’re going to evaluate our options,” said Brett Chapman, O’Brien’s attorney.
“The case starts over in municipal court.”
Tribal sovereignty
Apart from the disappointment of losing the appeal to dismiss on the merits of lack of jurisdiction, Chapman and Muscogee Nation Attorney General Geri Wisner were disappointed by the opinion they say runs roughshod over tribal sovereignty.
“We are profoundly disappointed by today’s decision from the Oklahoma Court of Criminal Appeals in City of Tulsa v. O’Brien,” Chapman wrote in a Dec. 5 statement.
“Their ruling marks a stark departure from the principles established in the now former landmark Supreme Court decision in McGirt v. Oklahoma. It not only undermines the recognition of Indigenous sovereignty codified in federal law but also disrupts the long-standing framework of tribal sovereignty over reservation lands—a framework that has been settled
law for well over a century.”
Chapman has two cases working in the state system, O’Brien’s case and Marvin Keith Stitt, brother of Gov. Kevin Stitt, who is fighting the City of Tulsa over a $250 speeding ticket using the McGirt decision as the backbone for his argument.
The City of Tulsa argued the 2022 U.S. Supreme Court decision in Castro-Huerta v. Oklahoma gave them concurrent criminal jurisdiction. The decision said that when non-Native people commit crimes against Native people on reservation land, the state also has the ability to prosecute them, not just tribal or federal authorities.
Tulsa won on that argument when O’Brien failed to have the motion to dismiss denied.
A written statement by U.S. Supreme Court Justice Brett Kavanaugh after Tulsa failed to stay the Hooper decision in 2023 could be the reason Tulsa won this round.
“Moreover, as I understand it, nothing in the decision of the Court of Appeals prohibits the city from continuing to enforce its municipal laws against all persons, including Indians, as the
litigation progresses,” Kavanaugh wrote in August of 2023.
‘Still Working Through A State of Shock’
Geri Wisner, Muscogee Nation’s Attorney General, believes the OCCA’s decision doesn’t affect McGirt. It’s still solid law handed down from the United States Supreme Court, she said.
“The Muscogee (Creek) Nation is continuing to move forward in the manner we currently are with our 11 county partners and with the cross-deputization agreements in place,” Wisner said, referring to the agreements the tribal nation has with law enforcement.
She said the 10th Circuit decision in Hooper where the City of Tulsa argued and lost the case involving the Curtis Act, should have meant a victory for O’Brien.
Muscogee Nation went to the federal court where they ended up in the 10th Circuit with Hooper. O’Brien was appealed to the state court. The result is two differing opinions.
Wisner said the opinion is an attempt to gut tribal sovereignty.
“It’s a blatant attempt to chip away at McGirt,” she said.
Her team is still processing the decision which she said is etching away at established law.
O’Brien and the Muscogee Nation wrote that Castro-Huerta doesn’t apply because the decision was solely limited to the state having criminal jurisdiction over a non-Indian when they commit crimes against a Native person on the reservation
“To the contrary, the Supreme Court’s discussion in Castro-Huerta about the ways in which a state’s criminal jurisdiction over Indians may be preempted was not limited to criminal cases involving non-Indian defendants and Indian victims,” Judge Hudson wrote.
Hudson also cited the Bracker Balancing Test, which stems from a civil case involving the White Mountain Apache Tribe v. Bracker, a 1980 case that allowed judges to weigh federal, state and tribal interests when deciding a case.
Wisner said Bracker never should have been cited.
“You know, still working through a state of shock,” she said about the decision.
Judge Hudson also cites another federal case known as Duro v. Reina, which stated that non-member Indians who commit crimes on other reservations are not subject to federal or tribal nation’s courts. However, Congress overturned Duro in 1991 in what was called the “Duro Fix.”
However, on page 15 of the decision, Hudson writes as if the Duro Fix never happened.
“… holding that the retained sovereignty of a tribe to govern its own affairs does not include the authority to prosecute a nonmember Indian for crimes committed on its reservation.”
Hudson also misspelled the name of a decision considered one of the canons of federal Indian law, Worcester v. Georgia. Hudson, on paragraph 15 on page 10 spelled it “Worchester.”
Robert Gifford, a criminal defense attorney who practices federal Indian law wrote to the court asking for a correction.
“While such errors may be easily made, it is one that should not be left unaddressed. The significance of not only that foundational U.S. Supreme Court opinion and the heroic role by Samuel Worcester and Elihu Butler in American history should not be overlooked with a typographical error.”
Restoring the McGirt Decision after Castro-Huerta
After the 2022 decision in Castro-Huerta v. Oklahoma, the Department of Justice and the Department of the Interior held listening sessions in the fall of 2022 to address the decision and discuss, “the implications of the Castro-Huerta decision and the impact on Tribal communities.”
Next year, a government-to-government meeting will take place to discuss possible legislation to “restore the balance of jurisdiction that was in place before the Supreme Court’s decision in
Oklahoma v. Castro-Huerta.” One proposal would be to amend the Indian Civil Rights Act passed in 1968 to add that states wouldn’t have criminal jurisdiction in Indian Country.
But Gifford doesn’t think the timing is good, especially with an incoming Trump Administration that seems to want to diminish federal agency power.
“It makes me nervous, to be honest,” Gifford said. He cited what he feels is a culture of hostility toward tribal sovereignty from the state and from the Oklahoma Court of Criminal Appeals.
The meeting to discuss possible legislation will take place in January, before the transition to a new administration.
What’s next?
Wisner said she is hopeful for the next person who will occupy the United States Attorney’s offices in the Northern and Eastern Districts.
She wants someone who has some on-the-ground experience and knows Indian law and the impact it has on everyday citizens.
“It’s not just rhetoric but it does play a significant role in the lives of, you know, Joe and Jane and Hokti and Chebon.”
But, she said the O’Brien decision is making it hard to look forward when she and others are wondering what their next move is. Muscogee Nation recently met with Tulsa Mayor Monroe Nichols and said they are also hopeful about a new chapter of cooperation with the largest city within their reservation.
For now, Brett Chapman, O’Brien’s lawyer, is evaluating the landscape and his options. Chapman’s other case involving Marvin Stitt has yet to be decided and has some of the same issues as O’Brien’s case and may have a clearer path to the U.S. Supreme Court.
He said he was disappointed by the OCCA’s decision but not surprised. He says their intent since the 2021 Matloff decision that ruled that McGirt did not apply retroactively was to, “chip away at McGirt.”
“Centuries of fundamental principles have basically been, you know, abrogated.”