THE OKLAHOMA BAR JOURNAL 12 | APRIL 2024 skepticism.85 As noted by OBA member and Arizona State University Sandra Day O’Connor College of Law Dean Stacy Leeds,86 in legal matters with non-Native litigants, there has historically always been some speculative concern of “fairness and objectivity of tribal justice systems.”87 Time has shown that such concerns of bias are simply unwarranted. Such claims are no greater than those made by any lawyer who believes they were “hometowned”88 while appearing for the first time in any given state district court in Oklahoma. For more than 30 years, Oklahoma has given “full faith and credit” to the treatment of tribal court orders.89 Oklahoma courts have long recognized the validity of marriages (and divorces) between tribal members even when those marriages (or divorces) would not be recognized under the laws of Oklahoma.90 Even prior to that legislation, Oklahoma, as many other state91 and federal92 courts, concluded the federal full faith and credit statute93 applies to tribal court judgments as judgments of “territorial courts.”94 Some examples of such recognition of tribal court decisions and orders include honoring child support orders,95 domestic violence protection orders96 and child custody orders.97 A federal circuit court, as well as at least one tribal court, have also found that the Parental Kidnapping Prevention Act98 mandates that both states and tribes honor the other’s custody orders.99 There are also obscure provisions of federal law that seem to mandate some state courts’ following of tribal orders.100 CONCLUSION “Though many non-Native Americans have learned very little about us, over time we have had to learn everything about them.” – Wilma Mankiller, chief of Cherokee Nation (1985-1995)101 In a state that derives its name from the Choctaw words “okla,” meaning “people,” and “homma” or “humma,” meaning “red,”102 with over 300,000 tribal members from various tribes within its boundaries, and throwing in the application of McGirt, an attorney should not exclude themselves from an active tribal court practice. While some attorneys may be hesitant to grow their practice into such an area because they are not tribal members themselves, the tribal court practitioners (including the judges) come from a variety of backgrounds, both Native and non-Native. Any attorney assisting a tribal member (or non-tribal member) has an opportunity to develop a needed and unique practice by stepping into tribal court. With these starting points, a diligent attorney can effectively represent a litigant in a tribal court system that is both fair and efficient and one that will be surprisingly familiar to the Oklahoma attorney. Oklahoma’s tribal courts stand as a testament to the rise of the 39 distinct tribal cultures in the state in serving the people of Oklahoma in the face of both historical and contemporary challenges.103 ABOUT THE AUTHOR Robert Don Gifford is a solo practitioner in Oklahoma City at Gifford Law PLLC with an emphasis on Native American law, criminal law, civil rights and military law, and he is currently one of the attorneys involved in the presidential commutation for Leonard Peltier. Mr. Gifford, a tribal member of the Cherokee Nation, is also a tribal court judge for the Seminole Nation, Iowa (Ioway) Tribe of Oklahoma, Kaw (Kanza) Nation, AbsenteeShawnee Tribe and Miami Tribe of Oklahoma, as well as a Comanche Nation Supreme Court justice. ENDNOTES 1. Sandra Day O’Connor, “Lessons from the Third Sovereign: Indian Tribal Courts,” 33 Tulsa L. J. 1, 1 (1997). 2. The terms “Native American,” “Indian,” “tribal member” and “Indigenous” are used interchangeably throughout this article. 3. See generally, Jack Blair, “Demanding a Voice in Our Own Best Interest: A Call for a Delegate of the Cherokee Nation to the United States House of Representatives,” 20 Am. Indian L. Rev. 225, 225-33 (1995). 4. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); United States v. Lara, 541 U.S. 193, 204-05 (2004); see also Jeffery W. Massey, “The Cherokee Chief vs. The SCOTUS,” The Briefcase, (publication of the Oklahoma County Bar Association), August 2023, p. 5 (Part I), and September 2023, p.6; available online at www.okcbar.org. 5. Ana I. Sánchez-Rivera, Paul Jacobs and Cody Spence, “A Look at the Largest American Indian and Alaska Native Tribes and Villages in the Nation, Tribal Areas and States,” Oct. 3, 2023, available at https://bit.ly/49PEWUE. 6. There are more than 250-300 tribal courts and more than 150 tribal appellate courts throughout the United States. See Gregory D. Smith, “Native American Tribal Appellate Courts: Underestimated and Overlooked,” 19 J. App. Prac. & Process 25, 25 (2018); see also Matthew L.M. Fletcher, “Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisited,” 84 U. Colo. L. Rev. 59, 71 (2013). 7. The Eastern Shawnee, Modoc, Ottawa, Peoria and Seneca-Cayuga tribes each use the Miami Agency CFR Court (Eastern Oklahoma Region), while the Apache, Caddo, Fort Sill Apache, Otoe-Missouria and Wichita and Affiliated Tribe all use the CFR Courts at Anadarko and Red Rock (Southern Plains Region). See generally, “Court of 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.
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