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Future SCOTUS ruling could affect jurisdictional issues

Tahlequah Daily Press - 5/31/2018

May 30--The boundaries for state, federal and tribal law enforcement agencies are intertwined, as many in Cherokee County are cross-deputized to provide public safety.

Because various agencies are cross-deputized with the Cherokee Nation Marshal Service, it typically does not matter who makes an arrest. It does matter, though, where a suspect was when he was arrested, whether the suspect was Indian, and whether the victim was Indian.

Cherokee County Undersheriff Jason Chennault said arrests on tribal land determine if the suspect goes to tribal court or state court. The issue can be complicated and is determined on a case-by-case basis.

"Jurisdiction isn't land-based, it's race-based," he said. "It depends on who commits the crime and what race they are, and who the victim is and what their race is."

If a Native commits a crime against another Native in Indian Country, the tribal court has jurisdiction. If it was a major crime, such as murder or rape, the case can be picked up by the federal prosecutor's office. Other calculations must be made after an arrest, as well.

"If it's an Indian suspect versus a non-Indian, then it's federal [jurisdiction]," said Shannon Buhl, CN Marshal Service director. "If it is a non-Indian versus a non-Indian on Indian Country, it's state jurisdiction. State still has primary jurisdiction on Indian Country for non-Indians. See how weird it gets? And If it's a non-Indian versus Indian, then it's federal [jurisdiction]."

According to Chrissi Nimmo, assistant attorney general for the Cherokee Nation, tribal court only has criminal jurisdiction over Indians.

"An Indian is defined under federal law, so there's federal case law that says who is an Indian," said Nimmo. "Typically, being an enrolled member of a recognized tribe is sufficient, but you can also be an enrolled member of a [non-recognized] tribe and still be an Indian under some case law."

However, there are exceptions to whom the Cherokee Nation can and cannot bring to tribal court. During a May meeting, the Tribal Council passed the Violence Against Women Act of 2018, which authorized tribes to prosecute non-Indians who commits certain acts of domestic violence against Indian victims.

Another way a non-Indian might wind up in tribal court is if he's a convicted sex offender, as the Cherokee Nation has its own registration statute.

"If you're a sex offender and you live, work or go to school on Indian Country, you have to register with the Cherokee Nation," said Nimmo. "Failure to do so is a federal crime. It's a tribal crime for Indians, but for non-Indians, we can go after them civilly. We can seek fines or civil contempt."

Other non-Indians may be subject to tribal court jurisdiction if they're involved in a child support case wherein the child has been taken into custody by Cherokee Nation Indian Child Welfare for abuse or neglect.

"When we have a parent who is non-Indian, the court's civil contempt power can attach to them because we have jurisdiction over them," said Nimmo. "So for example, we can put a non-Indian in jail for not paying child support, if we have their child support case in Cherokee Nation. Even though they go to jail, that's not true criminal jurisdiction over them."

Other contempt actions may be taken on non-Indians -- for instance, if they consent to the tribal court's civil jurisdiction by attempting to sue a Cherokee citizen.

"Because you have then submitted yourself to the jurisdiction of the court. Let's say the court orders you to do something and you don't, then they may have contempt power over you to jail you until you comply with a court order," said Nimmo. "But outside of that, and as far as I know, I don't think Cherokee Nation has ever jailed anyone for contempt, except in child support cases."

While the tribal courts have criminal jurisdiction over Indians, the punishment might not always fit the crime if a tribe proceeds with prosecution. Under the Indian Civil Rights Act, a tribe can only sentence a person to one year in jail per crime. So if an Indian is charged and convicted of murder in tribal court, the tribe may only sentence the individual to one year. Certain repeat offenders could technically be sentenced up to three years, but in limited circumstances.

"What we can also do is stack charges," said Nimmo. "Oftentimes, people commit more than one crime when they're committing a crime. So if we can identify five separate crimes that they committed, we could theoretically sentence them to one year per crime and they could serve five years."

Nimmo said the tribal court's lack of sentencing power won't allow people to get away with crimes, "just because there's a little bit of a jurisdictional framework."

"If it's a minor crime, we will prosecute those," she said. "We do things like drug possession all the time and even minor assaults. If it's a sexual assault, child abuse or some of those types of cases, we're going to reach out to the U.S. Attorney's Office and ask them if they will consider taking that case, for lack of a better term."

There's also no double jeopardy if a person is charged for the same crime by a tribe and state, or tribe and federal government, because they're each separate sovereigns.

The court's jurisdictions framework may be in store for some changes, however, as the U.S. Supreme Court recently agreed to hear a case stemming from the 1999 murder conviction of Patrick Murphy. Murphy was convicted and sentenced to death almost 20 years ago in the state of Oklahoma by the McIntosh County District Attorney's Office.

"He's been appealing his case for 20 years," said Nimmo. "He made the argument that the state of Oklahoma could not prosecute him, because he was an Indian, he killed an Indian, and his crime occurred on Indian Country. Generally, in federal Indian law, that's the rule. The state doesn't have jurisdiction over Indians who commit crimes on Indian Country."

The murder was committed within the Muscogee (Creek) Nation jurisdiction, but not on trust land or land the tribe owned. The 10th Circuit Court ruled in 2017 that the tribe's reservation had never been disestablished, which means that all eight of the counties in MCN's jurisdictional boundary is Indian Country, and therefore the state does not have jurisdiction over Murphy.

If the Supreme Court upholds the decision -- that MCN is still a reservation -- it could vastly change the jurisdictional landscape for Oklahoma's courts.

"If the [Muscogee] Creek Nation is a reservation, it means there are groups of crimes, which are involving Indians, that the state has prosecuted in the past, they they no longer will be able to prosecute," said Nimmo. "Either the tribe or the federal government will have to prosecute those. It doesn't mean those people cannot be held accountable. It just shifts the control of who files charges and that type of thing."

If the court were to uphold that MCN is still on a reservation, it would not automatically apply to other tribes, but it would leave the door open for the Cherokee, Chickasaw, Choctaw and Seminole nations to argue that their reservations were also never disestablished. It also could prevent people from receiving the death sentence.

"Oklahoma uses the death penalty much more than the federal government does," said Nimmo. "They can, but it doesn't happen very often. If you're the guy who's accused, you'd probably rather be in federal court, because you probably won't be sentenced to death."

Nimmo doesn't expect a decision to be made on the Royal vs. Murphy case until sometime next year.

Until then, both state and federal prosecutors will have to split the verdicts with Cherokee Nation's tribal courts.

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(c)2018 the Tahlequah Daily Press (Tahlequah, Okla.)

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