APRIL 2024 | 11 THE OKLAHOMA BAR JOURNAL criminal matters, Congress gave the federal government exclusive authority to prosecute crimes that occurred in Indian Country when committed by or against Indians in 1885 through the Major Crimes Act.66 The definition of “Indian Country” is found at 18 U.S.C. §1151 and includes: 1) all land within the limits of any Indian reservation under the jurisdiction of the United States government, 2) “dependent Indian communities” and 3) all Indian allotments, the Indian titles to which have not been extinguished. Indian Country also includes land for which the title is held in trust by the U.S. for an individual Indian or Indian tribe.67 Prior to McGirt and its progeny68 restoring the reservation status to several tribes, Oklahoma’s “Indian Country” was generally described as a “checkerboard jurisdiction” and primarily found in the form of allotments or land held in trust by the federal government. Under the Violence Against Women Act,69 tribes can not only exercise civil jurisdiction over non-Natives for the purposes of protective orders but also limited criminal jurisdiction over them for violations of a protective order or crimes against Indian children. THE INDIAN CHILD WELFARE ACT “Can you see the wolves in this picture?” – Killers of the Flower Moon70 While the Indian Child Welfare Act (ICWA) 71 does not apply to tribal court proceedings, tribal courts do have presumptive jurisdiction in off-reservation custody proceedings72 over a Native child (of that specific tribe).73 The ICWA places certain procedural requirements in state court actions, as well as on the courts themselves before removing Native children from their homes (or terminating parental rights of Native parents).74 Transferring juvenile proceedings from state courts to tribal courts is clearly favored (absent parental objection); however, according to ICWA expert (and OBA member) C. Steven Hager,75 the tribal court systems “should carefully ... make a choice in each case that is in the best interest of the parents, the children, and the tribe.”76 BAR ADMISSIONS AND FINDING PENDING TRIBAL CASES “If you want to be successful, it is this simple. Know what you are doing, love what you are doing. And believe in what you are doing.” – Will Rogers, Cherokee citizen and “Oklahoma’s favorite son” As with other courts, most tribal courts require an attorney to be formally admitted to practice before the court. Many tribes’ bar applications will require a “letter of good standing” from the bar association, and some may only want a list of references. While most tribal courts do not require attorneys to be members of the Oklahoma Bar Association, they do generally require passage of some state bar exam. Most tribal bar applications are available on the tribal court’s website.77 Further, as with most courts, many tribal courts have rules as to attorney appearances to appear pro hac vice. It is worth noting that many tribes have provisions for non-attorney “lay advocates” to practice in those respective courts. In addition, while most Oklahoma attorneys routinely look online for pending state district court or Supreme Court cases on the Oklahoma State Court Network (OSCN)78 or through the On Demand Court Records System (ODCR),79 there is not a single online database for all tribal courts. While a few of Oklahoma’s tribes have made their daily court dockets available through the ODCR,80 most post their cases through their own court websites (e.g., the Cherokee,81 Choctaw82 and Muscogee (Creek) Nation83 courts offer the court records on their court websites). FULL FAITH AND CREDIT OR COMITY BETWEEN TRIBAL AND STATE COURTS “One of the finest things about being an Indian is that people are always interested in you and your ‘plight.’ Other groups have difficulties, predicaments, quandaries, problems or troubles. Traditionally we Indians have had a ‘plight.’” – Vine Deloria Jr.84 There may be some who are unfamiliar with the tribal court system who may view it with Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. The Kaw Nation Tribe’s dockets. Photo courtesy of the author.
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