THE OKLAHOMA BAR JOURNAL 8 | APRIL 2024 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 historical culture of the tribe and the other in a modern legal system that any attorney would recognize.15 Many are surprised to learn that Native American tribal courts predate European contact,16 with origins rooted in the customs and traditions that maintained order within each of the Indigenous tribes of North America.17 One notable pre-statehood example is the Cherokee Nation.18 By the 1830s, the Cherokees of Oklahoma had nine judicial districts with juries, appellate courts and a supreme court.19 A review of these tribal cases demonstrated that most defendants tried were acquitted of the charges, with the most notable being the 1840 murder trial of Archilla Smith, a signer of the Treaty of New Echota, and Jesse Bushyhead, who both were defended by Stand Watie.20 As a result of the enactment of the Indian Reorganization Act of 1934,21 the Oklahoma Indian Welfare Act22 and subsequent federal laws, such as the Violence Against Women Act23 and the Tribal Law and Order Act,24 tribes were allowed to enact their own tribal codes and set up their own judicial systems.25 The Indian SelfDetermination Act of 197526 gave tribes the ability to provide for their own courts through federal grants and contracts. Many tribes have adopted their own legal codes that include cultural history and contemporary law.27 THE RISE OF TRIBAL COURTS IN OKLAHOMA “Tribal courts are the last remains of a true ‘People’s Court’ for any litigant.” – Judge Lisa Otipoby (Comanche), district judge of the Muscogee (Creek) Nation Tribal Court “Four minutes to Wapner,”28 – Dustin Hoffman as Raymond Babbitt29 District courts in Oklahoma routinely heard civil matters in cases involving Native Americans.30 However, when 49 of Oklahoma’s 77 counties were returned to “reservation” status after the U.S. Supreme Court’s opinion in McGirt v. Oklahoma – discussing the Muscogee (Creek) Reservation31 and how its progeny of cases32 affected other tribes – the question of where cases must and could be heard in both criminal and civil matters became a hot topic that continues today. From 1950 until about 1977, Oklahoma exercised all aspects of civil and criminal jurisdiction over The bench at the Kaw Nation District Court in Kaw City. Photo courtesy of the author.
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