A literal fight at the Okmulgee County Jail in December between detention officers and Muscogee Nation Lighthorse police led the tribe to charge one jailer, Matthew Joseph Douglas, with assaulting a tribal police officer. The fracas also prompted Gov. Kevin Stitt to create the One Oklahoma Task Force.
The fallout of that incident included the suspension of the Grand River Dam Authority’s cross-deputization commission cards for tribal police, the refusal of tribal governments to participate in the One Oklahoma Task Force, and Oklahoma Attorney General Gentner Drummond filing a federal lawsuit on Douglas’ behalf against Muscogee Nation Attorney General Geri Wisner in the U.S. Eastern District of Oklahoma.
Drummond’s petition argued that 25 U.S.C. Section 1304 explicitly limits the Muscogee Nation’s ability to charge individuals with “assault of a tribal justice personnel” to circumstances where the officer is working a “covered crime” listed in the statute. Covered crimes are defined as assault on tribal justice personnel, child violence, dating violence, domestic violence, obstruction of justice, sexual violence, sex trafficking, stalking and violation of a protective order.
As argued by Drummond, the Muscogee Nation Lighthorse officers were not working a “covered crime” Dec. 18 when they attempted to book a man for drug-related charges. As a result, Drummond argued, federal law did not authorize the Muscogee Nation to exercise criminal jurisdiction over Douglas, a non-Indian.
“Congress does not include (1) narcotics charges or (2) violation of any state laws as ‘covered crimes,’” Drummond’s petition states. “Accordingly, the MCN does not have jurisdiction to charge petitioner with a violation of tribal law for his conduct on Dec. 18, 2023, as any alleged ‘assault of tribal justice personnel’ must have been ‘during, or because of, the performance or duties’ of that officer in ‘detaining … persons charged with a covered crime’ or ‘incarcerating … persons convicted of a covered crime.’” Riyaz Kanji, David Giampetroni and Philip Tinker of Ann Arbor’s Kanji Katzen, P.L.L.C. submitted the Muscogee Nation’s motion to dismiss the suit April 30. The brief opened by reminding presiding Judge John F. Heil, III of the Muscogee Nation’s sovereign immunity, protecting the nation from lawsuits except where Congress or the Muscogee Nation has waived the privilege.
The majority of the nation’s brief revolved around the argument that 25 U.S.C. Section 1304 requires Douglas to make his jurisdictional argument in Muscogee Nation District Court and receive a final ruling before filing a writ of habeas corpus in federal court.
“The nation’s court system accordingly must have the opportunity to review those facts and petitioner’s jurisdictional arguments before they can be considered by this court,” the Muscogee Nation’s attorneys wrote. “Congress has spoken, and unless and until the plaintiff has been convicted by the tribal court and has exhausted all remedies available to him in that forum, this court has no power to grant him the relief that he seeks.”
On May 21, Drummond submitted his reply brief, arguing that the Muscogee Nation clearly lacked jurisdiction and that the tribal remedy exhaustion doctrine – which generally requires parties to go through a tribal court proceeding and tribal court appeal before seeking relief in federal court – did not apply to Douglas’ circumstances.
“Petitioner is not required to seek relief from a tribal court that does not have jurisdiction over him, and this court should not require him to exhaust his remedies before that court,” Drummond wrote. “Exhaustion before a tribal court is only a matter of comity, and petitioner is not required to litigate before a tribunal that patently lacks jurisdiction over him.”
Since Douglas’s case is the first of its kind in federal court testing the scope of the “special tribal criminal jurisdiction” application authorized by Congress in 2022, the case’s outcome could influence how courts across the country approach the issue.
