The Oklahoma Bar Journal November 2022

Supreme Court and not by munic ipal judges. The court’s prior prec edents make clear that states lack preexisting jurisdiction over crimes committed by Indians in Indian country. The court might have sig naled a potential interest in revis iting those precedents, 20 but it did not do so in Castro-Huerta. 21 Unless and until the court reconsiders those precedents, municipal courts should proceed very cautiously before relying solely on the state’s preexisting jurisdiction when an Indian is accused of violating a local ordinance.

Indians in Indian country would not unlawfully infringe on tribal self-government. 17 More signifi cantly, by shifting from a bright line approach ( i.e. , that states lack jurisdiction over all crimes by or against Indians occurring in Indian country) to a Bracker anal ysis, the court potentially opened the door to future challenges based on the argument that the exercise of state jurisdiction over an Indian who committed a crime outside of their own tribe’s reser vation but (within the reservation of another tribe) would not con stitute an unlawful infringement on tribal self-government. 18 This argument, if adopted by the court, would likely require the court to overrule numerous prior prece dents that have made clear that states lack jurisdiction over crimes by Indians in Indian country. 19

MUNICIPAL COURT JURISDICTION OVER INDIANS IN INDIAN COUNTRY The evaluation of whether municipal courts have jurisdiction over Indians for ordinance viola tions in Indian country must start with an evaluation of the state’s preexisting jurisdiction. If preex isting jurisdiction is preempted, municipal courts may only exercise jurisdiction over those offenders if Congress has authorized the lawful assumption of that jurisdiction. Preexisting Jurisdiction As noted above, Castro-Huerta might have opened the door for an argument in a future case that the states have preexisting jurisdiction over crimes commit ted by an Indian within another tribe’s reservation. That argument, while intriguing, is one that must be resolved by the United States

Lawfully Assumed Authority/ §14 of the Curtis Act

The state’s preexisting jurisdic tion likely remains preempted as to crimes by Indians within Indian country. As such, municipal courts within the reservations of the Five Civilized Tribes may only exercise

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THE OKLAHOMA BAR JOURNAL