Tulsa v. O'Brien: A Dangerous Overreach That Undermines Tribal Sovereignty

In a recent ruling, the Oklahoma Court of Criminal Appeals handed down a decision in City of Tulsa v. O'Brien 2024 OK CR 31 (Okla. Crim. App., 2024) that should alarm anyone who values the delicate balance of tribal sovereignty in the United States. The majority opinion, penned by Judge Hudson, asserts that the City of Tulsa—and by extension, the State of Oklahoma—can prosecute an Indian, Nicholas Ryan O'Brien, for misdemeanor traffic offenses committed within the Muscogee (Creek) Nation’s boundaries. This ruling, cloaked in legal jargon about “concurrent jurisdiction,” represents a brazen overreach that tramples on centuries of precedent and threatens the core of tribal self-governance.

O'Brien, an enrolled member of the Osage Nation, was charged with DUI and related offenses in 2021 on land recognized as Indian Country under the Supreme Court’s landmark decision in McGirt v. Oklahoma, 591 U.S. 894 (2020). That ruling reaffirmed that much of eastern Oklahoma, including Tulsa, remains tribal land, subject to federal and tribal jurisdiction for crimes involving Indians. Yet, the majority in Tulsa v. O'Brien insists that Tulsa can step in, claiming authority derived from Oklahoma’s inherent sovereignty and a stretched reading of Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022). This is a misstep that ignores history, law, and fairness.

For over a century, the rule has been clear: only tribes or the federal government can prosecute Indians for crimes in Indian Country unless Congress explicitly says otherwise. Cases like Fisher v. District Court of the Sixteenth Judicial District of Montana, 424 U.S. 382, 386 (1976), and United States v. Kagama, 118 U.S. 375, 383-384 (1886), cemented this principle, recognizing that tribal sovereignty includes the right to govern their own people free from state interference. Castro-Huerta, which the majority leans on heavily, dealt with a non-Indian defendant—an entirely different scenario. Its holding that states have jurisdiction in Indian Country unless preempted was limited to crimes by non-Indians against Indians, 597 U.S. at 655. The Supreme Court didn’t greenlight state prosecutions of Indians, and certainly didn’t invite Oklahoma to rewrite the rules.

But rewrite them it did. The majority’s reasoning hinges on two shaky pillars. First, it claims no federal law preempts Tulsa’s jurisdiction, pointing to the General Crimes Act, 18 U.S.C. § 1152 (2018), and dismissing arguments from O'Brien and the Muscogee (Creek) Nation that Congress must affirmatively grant such power. This flips the traditional understanding on its head—states historically needed Congressional permission to meddle in Indian Country, not the other way around, as seen in McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 170-172 (1973). Second, it applies the balancing test from White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-145 (1980), to conclude that prosecuting O'Brien, a non-member Indian, doesn’t infringe on tribal self-government. This analysis is cursory at best, conducted without a robust evidentiary record or even oral arguments from the tribes, who were relegated to filing friend-of-the-court briefs.

The court’s Bracker balancing is particularly troubling. It shrugs off tribal interests, suggesting that Tulsa’s actions might even “bolster” Muscogee (Creek) public safety—an assertion the tribe itself disputes, Tulsa v. O'Brien, 2024 OK CR 31, at ¶ 32. It assumes federal interests aren’t harmed because federal jurisdiction remains “concurrent,” ignoring how state encroachment complicates an already strained system, id. at ¶ 33. And it elevates Oklahoma’s interest in road safety above all, as if tribal and federal authorities can’t handle traffic enforcement themselves, id. at ¶ 34. The majority’s flippant remark that Congress can “fix it later” if this poses a problem is a dodge, not a justification, id. at ¶ 32.

Judge Lewis’s dissent nails the issue: this ruling “touches the heart of tribal self-government” without Congressional blessing, Tulsa v. O'Brien, 2024 OK CR 31, at ¶6 (Lewis, J., concurring in part and dissenting in part). By letting Tulsa prosecute O'Brien, the court chips away at the tribe’s ability to regulate its own lands and people—a right McGirt, 591 U.S. at 932, fought to preserve. The majority’s distinction between member and non-member Indians (O'Brien isn’t Muscogee (Creek)) feels like a convenient loophole, but it doesn’t hold water, Tulsa v. O'Brien, 2024 OK CR 31, at ¶¶ 31-32. Tribal sovereignty isn’t just about who’s in the club; it’s about who controls the land, as affirmed in Williams v. Lee, 358 U.S. 217, 220 (1959). Letting states pick and choose which Indians to prosecute undermines that control entirely.

The broader implications are chilling. Post-McGirt, Oklahoma has scrambled to regain footing in a region now recognized as Indian Country. This decision hands the state a tool to erode tribal authority piece by piece—starting with traffic tickets, but where does it stop? If Tulsa can prosecute Indians for misdemeanors, what’s to prevent felony charges next? The majority’s reliance on Castro-Huerta’s vague footnote about preemption, 597 U.S. at 639 n.2, opens a Pandora’s box, inviting states to test tribal boundaries without clear limits.

This isn’t about denying Oklahoma’s sovereignty; it’s about respecting the sovereignty of tribes as domestic nations, a status recognized since the 19th century in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). The federal government and tribes have managed Indian Country for generations—imperfectly, yes, but within a framework Congress designed. Oklahoma’s push to insert itself, upheld by this court, risks chaos: overlapping prosecutions, jurisdictional fights, and a weakened tribal system already stretched thin, as warned in Ross v. Neff, 905 F.2d 1349, 1352 (10th Cir. 1990).

The Tulsa v. O'Brien majority got it wrong. It’s not a triumph of legal nuance but a power grab dressed up as one. The Supreme Court should step in to clarify that Castro-Huerta doesn’t unlock this door—or better yet, Congress should act to reaffirm tribal authority. Until then, this ruling stands as a warning: tribal sovereignty in Oklahoma hangs by a thread, and the courts may not be its protectors.

Oklahoma’s Court Gambit: A Dangerous Sidestep of Indian Country Justice

In a troubling decision last December, the Oklahoma Court of Criminal Appeals handed down a ruling in Billy Zane Deo v. The Honorable Lawrence Parish, 2023 OK CR 20, 541 P.3d 833, that threatens to unravel the hard-won clarity of McGirt v. Oklahoma—and with it, the sovereignty of Oklahoma’s Native nations. By a narrow majority, the court denied Billy Zane Deo’s petition to dismiss two state criminal cases, claiming he waived his jurisdictional challenge by pleading guilty before raising it. This isn’t just a technical misstep; it’s a judicial sleight of hand that undermines federal law, tribal rights, and basic fairness.

Deo, an enrolled Muscogee (Creek) Nation member, committed his crimes within the Muscogee Reservation—Indian Country, as affirmed by the U.S. Supreme Court in McGirt v. Oklahoma, 591 U.S. ___, 140 S. Ct. 2452 (2020). That landmark ruling recognized that much of eastern Oklahoma remains reservation land, shifting criminal jurisdiction over Indians in those areas to federal and tribal courts unless Congress says otherwise. Deo’s case should have been a straightforward application: an Indian, in Indian Country, facing state prosecution without Congressional authorization. Yet the majority twisted this into a procedural trap, declaring that Oklahoma’s jurisdiction wasn’t about the “type of case” (subject matter) but rather the “where” and “who” (territory and persons)—and that Deo forfeited his rights by not objecting sooner.

This redefinition is as clever as it is cynical. For decades, Oklahoma courts treated McGirt-style claims as challenges to subject matter jurisdiction—the fundamental power of a court to hear a case—which can’t be waived and can be raised at any time. See, e.g., Cox v. State, 2006 OK CR 51, ¶ 8, 152 P.3d 244, 248. The majority now says those were mistakes, overruled with a wave of the pen, and that these are mere procedural hurdles Deo should’ve jumped before his 2018 guilty plea. Never mind that McGirt v. Oklahoma, 591 U.S. ___, 140 S. Ct. 2452, wasn’t decided until 2020, or that Deo promptly raised the issue once it became law. The court’s stance effectively punishes him for not being clairvoyant.

The legal acrobatics don’t stop there. The majority leans heavily on Oklahoma v. Castro-Huerta, 597 U.S. ___, 142 S. Ct. 2486 (2022), where the Supreme Court held that states can prosecute non-Indians for crimes against Indians in Indian Country. But Castro-Huerta explicitly sidestepped the scenario here—an Indian defendant—and reaffirmed that state jurisdiction can be preempted by federal law or tribal self-government under White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). See Oklahoma v. Castro-Huerta, 597 U.S. ___, 142 S. Ct. 2486, 2501 n.6. The court was supposed to weigh those factors using the Bracker balancing test, considering tribal, federal, and state interests. Instead, it shrugged, saying Deo didn’t prove preemption. This flips the burden: historically, states must justify intruding on Indian Country, not the other way around. See Nevada v. Hicks, 533 U.S. 353, 362 (2001).

Dissenting Judges Hudson and Lewis saw through the charade. Hudson called it a bypass of McGirt v. Oklahoma, 591 U.S. ___, 140 S. Ct. 2452, warning that it ignores the Supreme Court’s mandate to analyze tribal sovereignty. Lewis went further, citing a century of precedent: states have “no jurisdiction” over Indians in Indian Country absent Congressional action. See United States v. Kagama, 118 U.S. 375, 383-84 (1886); Fisher v. District Court, 424 U.S. 382, 386 (1976). He’s right—cases from Kagama to Ute Indian Tribe v. Utah, 790 F.3d 1000, 1004 (10th Cir. 2015), make this crystal clear. Oklahoma’s authority doesn’t exist here, and no amount of jurisdictional relabeling can conjure it.

The practical fallout is alarming. By deeming these claims waivable, the majority greenlights state prosecutions of Native people for pre-McGirt acts, even when they couldn’t have known to object. Deo, stuck in a deferred sentence limbo, faces this firsthand—his drug court stint could end in prison because the court won’t admit its limits. Worse, this ruling invites chaos: if state courts can dodge McGirt v. Oklahoma, 591 U.S. ___, 140 S. Ct. 2452, with procedural technicalities, what’s to stop a flood of wrongful convictions, only for federal courts to later intervene?

This isn’t just about one man. It’s about respect for tribal nations and the rule of law. Oklahoma’s tribes have fought for centuries to protect their sovereignty, a right McGirt finally honored. The majority’s decision chips away at that, treating federal preemption as a footnote rather than a foundation. Congress, not courts, decides when states can step into Indian Country—and it hasn’t. See 18 U.S.C. § 1162 (granting some states jurisdiction over Indian Country crimes, but not Oklahoma). Until it does, Oklahoma should stop pretending otherwise.

The Court of Criminal Appeals had a chance to uphold justice and clarity. Instead, it chose a shortcut that risks both. For Deo, for the tribes, and for Oklahoma’s legal integrity, Deo v. Parish, 2023 OK CR 20, 541 P.3d 833, was a grave misstep—one that demands correction, whether by higher courts or public outcry. Sovereignty isn’t a technicality to be waived; it’s a promise to be kept.

J. Wes Billingsley named among Top 10 Criminal Defense Attorneys

New energy law balances authority between cities and the state

Energy law balances authority between cities and the state

Q: The governor recently signed Senate Bill 809 that deals with the regulation of some oil and gas activity. Does the bill change how the industry is regulated?

A: Oklahoma has enacted a statute permitting local governments to establish certain reasonable regulations for oil and gas well site locations to protect the health and safety of its citizens. The statute gives some control to local authorities to reasonably establish certain geographic restrictions for well site locations and to regulate noise, odor and road use. The law provides that a municipality may not “ban” oil and gas operations, such as drilling, hydraulic fracture stimulation and water disposal. This statute is similar to a statute passed in Texas in May. The statute also emphasizes the exclusive authority of the Oklahoma Corporation Commission (OCC) to regulate oil and gas operations in Oklahoma.

Q: We’ve heard a lot lately about earthquakes and oil and gas activities. How does SB 809 impact that issue?

A: First, the OCC retains jurisdiction over oil and gas activities. This remains unchanged. Second, oil and gas drilling, and fracking in particular, haven’t been linked to an increase in reported earthquake events in Oklahoma. Of recent concern is the possibility that wastewater disposal may be related to an increase in seismicity. However, the Oklahoma Geological Survey has observed that the amount of wastewater generated from hydraulic fracturing is a relatively small percentage of the total volume of wastewater injected in disposal wells in Oklahoma. The OCC is carefully monitoring injection wells and has issued “traffic light” rules governing injection wells in seismically sensitive areas. Addressing what may be an issue on a statewide basis appears to offer a better resolution than local ad-hoc measures, which might not even address the actual issue.

Q: What has happened in other jurisdictions where bans have been put in place?

A: Sometimes lost in the discussion of banning all activities in an area is the real possibility that a ban may very well constitute a “taking” and require the local government to pay money for the property right taken. Most mineral estates in Oklahoma were long ago “severed,” which basically means that the individual who owns the “right” to the mineral estate is different from the individual who owns the “right” to the surface. Both owners have rights. A ban that prohibits an owner from receiving the benefit of her property rights can be considered a “taking without compensation.” In several states, bans have resulted in lawsuits with mineral owners seeking compensation for the property. In short, although some may claim that the current statute is “taking away” the right of the local government to ban something, because the OCC already has exclusive jurisdiction and because a ban could be considered an improper taking, the legislation likely is an attempt to balance the competing rights of the various parties.