State Prosecution of a Tribal Member on Trust Land
In 2023, Derek, an enrolled member of the Cherokee Nation, got into a fight at a casino in Tulsa County with Marcus, an enrolled member of the Choctaw Nation. The casino is located on land held in trust by the United States for the Choctaw Nation and is within the boundaries of the Choctaw Nation Reservation, whose status has been recognized under the McGirt framework. Derek struck Marcus with a broken bottle, causing serious but nonfatal injuries. Tulsa County prosecutors charged Derek with assault and battery with a dangerous weapon, a felony, in Oklahoma state court. Derek moved to dismiss for lack of subject-matter jurisdiction. The State conceded that Derek and Marcus are Indians and that the location is Indian country, but argued that the State may prosecute because Oklahoma has a strong interest in public safety and because the victim was not a member of Derek's tribe. Derek is not a member of the Choctaw Nation. The offense is a major crime under federal law, and the Choctaw Nation has not waived jurisdiction. The State also noted that Derek had a prior state-court conviction in 2018 for a crime on non-Indian land.
1. Should the state court dismiss the charge? Explain the jurisdictional framework.
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Yes. Under the Major Crimes Act, 18 U.S.C. § 1153, the United States has jurisdiction over enumerated major crimes committed by Indians in Indian country. Tribal sovereignty also supports tribal prosecution. As a general rule, a state lacks criminal jurisdiction over an Indian defendant for conduct in Indian country. McGirt v. Oklahoma, 591 U.S. 894 (2020), confirmed that the Creek Reservation was not disestablished, and the same reasoning has been applied to the Choctaw Nation. Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022), allows a state to prosecute a non-Indian offender for a crime against an Indian victim in Indian country, but it does not extend state jurisdiction to Indian defendants. Derek's Cherokee membership, Marcus's Choctaw membership, and the trust status of the casino all place the offense in Indian country. The State's public-safety interest and Derek's prior state conviction on non-Indian land do not cure the jurisdictional defect. Dismiss.
2. Would the result change if Derek were a non-Indian and Marcus an Indian? Explain.
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Yes. Under Castro-Huerta, a state may prosecute a non-Indian for a crime committed against an Indian in Indian country. The state's jurisdiction is concurrent with federal jurisdiction, not exclusive. Because Derek would not be an Indian defendant, the general federal bar on state prosecution of Indians would not apply. The state could proceed, subject to any federal preemption or treaty limits, and the federal government could also prosecute. The tribal nation's jurisdiction over a non-Indian would be limited by current federal law.
3. If the offense were a misdemeanor rather than a major crime, how would jurisdiction differ?
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The Major Crimes Act would not supply federal jurisdiction because it covers only enumerated felonies. Tribal jurisdiction over an Indian defendant in Indian country would remain, and the tribe could prosecute under its own law. The state still would lack jurisdiction over Derek as an Indian in Indian country absent a federal statute or tribal waiver. Federal jurisdiction over misdemeanors is narrower and would depend on a specific statute. The analysis therefore changes the federal and tribal options, not the basic state-court bar.