APRIL 2024 | 9 THE OKLAHOMA BAR JOURNAL 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. tribal lands until a federal district court case in the Western District of Oklahoma, United States v. Littlechief, found that the state of Oklahoma could not prosecute an Indian for a crime on a “trust allotment.”33 In 1979, the state of Oklahoma lost another jurisdictional battle when the state appellate court found the Chilocco Indian School34 in Kay County to be a “dependent Indian community” and, thus, in “Indian Country” with no state criminal jurisdiction.35 As tribal courts are now more prominent since McGirt, they are, as they always have been, an important part of the legal system in Oklahoma. As with any attorney venturing into a new courthouse in a different county, it takes the willingness to learn and adapt. With 39 tribes in Oklahoma, many practitioners are soon surprised at the number of divorces, custody determinations,36 adoptions, paternity determinations, child support orders, guardianships and name changes adjudicated daily within the boundaries of Oklahoma and outside of its state court system. Since McGirt, there have been many questions about which courts have jurisdiction in not only criminal matters but civil matters as well. Applicable tribal laws and federal regulations govern the Courts of Indian Offenses,37 while tribal courts are governed by applicable federal laws38 and tribal constitutional, statutory, common and administrative laws. SOURCES OF LAW WITHIN THE INDIAN NATIONS “Among the Indians there have been no written laws. Customs handed down from generation to generation have been the only laws to guide them.” – George Copway (Kah-ge-ga-bowh), Ojibwa chief39 “Watch out for bad medicine, though. Yeah, wear socks. Medicine comes up through your feet.” – Reservation Dogs40 A practitioner who’s new to the tribal court system should be aware that both tribal district (trial) courts and appellate courts may vary from tribe to tribe in their structure and procedure.41 Notably, there is not a single tribal appellate court that serves as a “Supreme Court” to all the tribal district courts. Tribal laws vary from tribe to tribe and may be based on a tribe’s constitution, code of laws, resolutions and ordinances. Surprising to some, the U.S. Constitution and Oklahoma Constitution do not necessarily apply within tribes;42 however, that does not mean litigants are without fundamental protections in tribal court. First, in 1968, the U.S. Congress passed the Indian Civil Rights Act,43 which closely mirrors the Bill of Rights of 1791.44 Tribes are required to provide the ability “to petition for redress of grievances” and the basic protections of due process, freedom of speech, protection against self- incrimination and other fundamental rights.45 Additionally, many tribes have adopted substantive laws through their own legislative processes, which contain similar protections as those found in the Bill of Rights. Many of Oklahoma’s tribal courts also look to state or federal law and procedure to fill in any gaps as a matter of fairness and ease of tribal court practice for attorneys (and pro bono parties). Some tribes have tribal codes that direct if there is no tribal code addressing an issue to look to the federal or Oklahoma state code.46 In doing legal research, most tribal codes and sample forms are available online on a tribe’s The Muscogee (Creek) Nation District Court in Okmulgee. Photo courtesy of the author.
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