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.