The Oklahoma Bar Journal November 2022

Evaluating the Jurisdiction of Municipal Courts After Castro-Huerta By Matthew Love M unicipal L aw

A S POLITICAL SUBDIVISIONS OF THE STATE, municipalities typically rely on the state’s sovereign authority when prosecuting ordinance violations in municipal court. Following McGirt v. Oklahoma , 1 municipalities within the reservations of the Five Civilized Tribes 2 may no longer rely on the state’s preexisting sovereignty when prosecuting Indians 3 for ordinance violations. In response, many of those municipalities take the position that they may lawfully assume jurisdiction over local ordinance violations by Indians pursuant to §14 of the Curtis Act.

lawfully assumed if authorized by Congress. Congress has autho rized the lawful assumption of jurisdiction through Public Law 280 12 and, prior to that, through one-off enactments. 13 Except for the Major Crimes Act, 14 federal law does not preempt the state from exercising preex isting jurisdiction over crimes by or against Indians within Indian country. 15 As a result, the preemp tion analysis turns on whether the exercise of state jurisdiction would unlawfully infringe on tribal self-government. This is evaluated utilizing the Bracker 16 balancing analysis, which weighs the impact the exercise of state jurisdiction would have on tribal, federal and state interests. In Castro-Huerta , the court held that the exercise of state jurisdiction over crimes com mitted by non-Indians against

This argument has been the subject of criticism 4 and has not yet been addressed by the appellate courts. 5 The argument was origi nally developed based on a prior understanding of how criminal jurisdiction within Indian country is evaluated. The United States Supreme Court recently modified that jurisdictional evaluation in Oklahoma v. Castro-Huerta. 6 This arti cle seeks to provide an overview of the evaluation of the jurisdiction of municipal courts within the reser vations of the Five Civilized Tribes in light of Castro-Huerta . SUBJECT MATTER JURISDICTION OF MUNICIPAL COURTS IN INDIAN COUNTRY Subject matter jurisdiction goes to a court’s authority to hear a given type of case. 7 The subject matter jurisdiction of Oklahoma

municipal courts over ordinance violations is limited to offenses that are not declared to be felonies under state statutes. 8 For offenses committed by an Indian in Indian country, the court’s subject matter jurisdiction is subject to the Castro Huerta preemption analysis. Indian country is a part of, not separate from, the state. 9 Unless preempted, the 10th Amendment guarantees that state sovereignty includes the right to exercise the state’s inherent, preexisting juris diction over all its territory, includ ing Indian country. 10 The exercise of preexisting jurisdiction can be preempted if the exercise of that jurisdiction 1) has been preempted by federal law or 2) would unlawfully infringe on tribal self-government. 11 To the extent the exercise of preexist ing jurisdiction would unlawfully infringe on tribal self-government, jurisdiction may nevertheless be

40 | NOVEMBER 2022

THE OKLAHOMA BAR JOURNAL