Who's the boss? One case highlights the issues with jurisdiction post-McGirt
The landmark McGirt vs. Oklahoma decision at the U.S. Supreme Court in 2020 was a big win for tribal sovereignty that gave tribal nations jurisdiction over many crimes committed in their territory and by their citizens.
Working out the state’s role in such matters has proven extremely contentious. StateImpact’s Logan Layden talked with Indigenous Affairs reporter Allison Herrera about one case that highlights the complications involved.
LOGAN: Allison this case on its face is about illegal hunting in Oklahoma. Can you tell us more about it?
ALLISON: Well, thanks for having me Logan. So, yes. Last year — in January 2022, Jimmy Ward, who is an Osage citizen, spotted what he thought was a white-tailed deer on a rural road in Carter County. He pulled out his rifle to shoot it, but then learned it was actually a decoy. This is a sting set up by Oklahoma Fish and Wildlife to catch off-season hunters. It’s a pretty standard operation. But what happened after that was very unusual. So, first, he’s ticketed and charged with several crimes. And then, because he is a citizen of the Osage Nation — he was hunting within the Chickasaw Nation Reservation in Carter County — he moves to have these charges dismissed. He says to the court: you, State of Oklahoma, don’t have jurisdiction over me for these crimes because I’m an Osage Citizen. I was caught committing these illegal acts on the Chickasaw Nation Reservation. And invokes McGirt. And says I’m filing a motion to dismiss. And so he does. And the court agrees. And then he’s actually charges in Chickasaw Nation court.
LOGAN: Well, the initial criminal charges against Mr. Ward were dismissed due to lack of jurisdiction. Tell us why this matters, and tell us what happens next.
ALLISON: They were dismissed for lack of jurisdiction because of McGirt. Because under the McGirt ruling, crimes committed by Native people within reservation boundaries can be charged in federal court or in tribal court. So, they get dismissed. But then the state seizes his gun and all of his other equipment that was used in the taking of this illegal deer. And he says wait a minute. You don’t have the right to take my stuff. They say no, you don’t have jurisdiction in this matter. This is a civil matter. And we — the State of Oklahoma — have the right to try you, Mr. Ward, even though these crimes were committed within Chickasaw Nation’s reservation. Well, then in walks Stitt’s general counsel at one of these hearings. Trevor Pemberton. Pemberton uses this technique called ‘civil asset forfeiture.’ And it’s kind of a tool that police use designed to go after the instrument in a crime, in this case it’s Ward’s rifle and his other equipment. And they say the have the jurisdiction to do that, that they have the power to prosecute civil crimes, even if they don’t have the power to prosecute and bring charges in criminal matters under McGirt.
LOGAN: How often is it that the governor’s office gets involved in cases like this?
ALLISON: I talked to a couple of people about his case, and I talked to William Norman. He is a lawyer with Hobbs and Straus here in Oklahoma. And they also have an office in Washington, D.C. And here’s what he said:
NORMAN: It’s very unusual to see this type of involvement and a governor with respect to their own appointed counsel. And yet at the same time I would say it’s probably predictable for this governor in terms of the subject matter and his, sort of, continuing battle against the tribes on every front. And I think it’s unfortunate.
ALLISON: And I should note the other unusual part of this case is that the state objected to Chickasaw Nation filing an amicus brief. They obviously have an interest in this case because it happened within their reservation. But the governor’s office said no, you don’t have the right. You should never be able to file an amicus brief. If you want to be part of this case you need to relinquish — you need to be subject yourself to this court. Basically, release your sovereign rights, or give up your sovereign rights and be a subject to Oklahoma state court. To which Chickasaw Nation said we’re not doing that.
LOGAN: Indigenous affairs reporter Allison Herrera, thanks for joining me today.
ALLISON: Thank you so much for having me, Logan.
LOGAN: For StateImpact, I’m Logan Layden.
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