TULSA, Okla. – Four Ottawa County American Indian tribes are challenging an Oklahoma law requiring their sovereign citizens accused of wrongdoing be prosecuted in state court.
The Miami Tribe of Oklahoma, the Ottawa Tribe of Oklahoma, the Eastern Shawnee Tribe of Oklahoma, and the Seneca-Cayuga Nation filed separate federal lawsuits against Oklahoma State Attorney General Gentner Drummond and Ottawa County District Attorney Doug Pewitt.
Each lawsuit outlines when their tribe’s reservations were established – mostly in the early 1800s. Those reservations still exist since the reservations have never been disestablished, according to the petition. The tribes maintain Pewitt and the state of Oklahoma has no jurisdictional right to file charges against a tribal member for crimes committed on reservation land, the petition states.
Each lawsuit outlined several cases Pewitt dismissed in February cases citing the 2020 U.S. Supreme Court McGirt ruling and lack of jurisdiction to prosecute the cases in Ottawa County District Court.
After Pewitt dismissed more than 100 cases based on the jurisdictional issue, Oklahoma Attorney General Gentner Drummond sent a letter to Pewitt saying “Oklahoma has full jurisdiction to prosecute criminal cases against Indians and non-Indians.”
The only exceptions are cases against Indians within the boundaries within the Cherokee and Quapaw Nations, according to the March 3 letter.
Pewitt said his office is prioritizing the dismissed cases before refiling charges.
The tribes are sovereign nations and there is a difference between duel sovereignty and double jeopardy, he said.
Double jeopardy prohibits prosecutors from charging a defendant with the same crime.
“A defendant can be charged in state, federal and tribal court for the same crime,” Pewitt said.
A federal prosecutor isn’t likely to pick up the same case as state court if the case is similar, he said.
“The tribes have not yet been notified whether the dismissed cases have been or will be refiled,” said Joseph F. Halloran, attorney for the Miami Tribe of Oklahoma, the Ottawa Tribe of Oklahoma, and the Eastern Shawnee Tribe of Oklahoma.
The quandary lies in If the cases are refiled, the Ottawa County District Court will be asked to answer the same legal question it answered when dismissing the cases in the first instance, he said.
“This raises additional bases for dismissal beyond lack of jurisdiction including, estoppel and double jeopardy,” Halloran said.
Estoppel prevents one person from contradicting an action or statement from the past.
“If defendants are detained pending disposition, it would not be inconceivable to see a petition for a federal writ of habeas corpus (or unlawful imprisonment),” Halloran said.
Halloran said regardless of the decision, “the Ottawa County District Court bench is very experienced and will address whatever challenges are presented in a thoughtful and efficient manner.”
Supreme Court Rulings
The McGirt ruling stated the Cherokee Nation reservation was never disestablished and because of the 113-year-old decision, prosecutors are prohibited from prosecuting wrongdoing on Cherokee Nation land.
The Lawhorn ruling allows the existence of the Quapaw Reservation making it the first and only tribe in Oklahoma to have its reservation affirmed that is not part of the “Five Tribes.”
The Lawhorn ruling stems in part from the McGirt ruling reaffirming the Creek, Cherokee, Chickasaw, Choctaw, and Seminole Nations reservations.