A state appellate court on Thursday expanded the list of tribes whose reservations have never been disestablished by Congress to include the Quapaw Nation.
The Oklahoma Court of Criminal Appeals made the ruling in a case involving Jeremy Lawhorn, 39, a Cherokee Nation citizen charged with lewd or indecent acts to a child under 16.
The appellate court agreed with Lawhorn’s assertion that the state of Oklahoma did not have jurisdiction to try him because he was a member of a federally-recognized tribe charged with committing a felony within the Quapaw Nation reservation.
The ruling means that either the federal government or Quapaw Nation tribal government has criminal jurisdiction in Lawhorn’s case.
The appellate court cited the U.S. Supreme Court’s McGirt ruling as the reason for deciding the Quapaw Nation had never been disestablished.
“The ruling in McGirt governs this case and requires us to find the state of Oklahoma is without jurisdiction to prosecute Lawhorn,” the court’s opinion states.
This marks the sixth Oklahoma tribe that the courts have deemed to still have intact reservations for criminal jurisdiction purposes. The original U.S. Supreme Court decision affected the Muscogee Nation reservation, while subsequent Oklahoma Court of Criminal Appeals rulings have expanded the ruling to include the Cherokee, Chickasaw, Choctaw and Seminole nations, based on similarly-worded treaties with the United States government.
A spokeswoman for the U.S. Attorney’s Office in Tulsa said it has anticipated such a decision could be made and has been making preparations to take on the additional case load.
Gov. Kevin Stitt, meanwhile, ripped the decision in a statement released following the ruling.
“The Supreme Court’s McGirt ruling continues to tear Oklahoma apart,” Stitt said. “Today the Court of Criminals Appeals found that for purposes of federal criminal law, a portion of Ottawa County no longer falls under the jurisdiction of the state of Oklahoma. This is the sixth new jurisdiction in our state. Oklahoma is literally being torn into pieces.”
Oklahoma Attorney General John O’Connor, appointed to the position by Stitt, has filed over 30 challenges to the landmark ruling in the U.S. Supreme Court.
“One of the most basic functions of a state in the United States of America is the ability to enforce the rule of law and keep the public safe,” Stitt continued. “If we cannot do that, we do not have a state. Oklahoma has lost much of that ability in the eastern half of our state, and as of today, that now includes another portion of Ottawa County.
“As I have said from the beginning, McGirt not only creates a public safety nightmare, but threatens the sovereignty of our state to its core. Oklahoma is being cobbled up piece by piece. This cannot stand.”
Tribes included in the McGirt decision have generally rejected Stitt’s assertions, pointing to charges being filed in both federal and tribal courts as proof jurisprudence continues in Indian Country despite the lack of jurisdiction in state courts.
The state of Oklahoma charged Lawhorn Aug. 27, 2020 in Ottawa County District Court with intentionally rubbing the breasts and vagina of a girl under the age of 12.
The charge came nearly two months after the U.S. Supreme Court issued its landmark ruling in McGirt vs Oklahoma, which determined the Muscogee Nation reservation had never been disestablished by Congress, resulting in the state of Oklahoma not having jurisdiction in major crimes that occurred within the reservation boundaries when a tribal member was involved as either the victim or suspect.
The Quapaw Nation supported the Thursday decision in a friend of the court brief filed with the case.
“The fact that Oklahoma, since its inception, has unlawfully exercised criminal jurisdiction over crimes committed by Indians on the Quapaw Reservation in no way, under the law, constitutes the disestablishment of the Reservation itself,” the tribe stated in its brief.
Quapaw Nation officials on Thursday welcomed the decision and said the tribe is prepared for the switch in criminal jurisdictions, in written remarks released through a spokesperson.
“The Lawhorn decision rightfully affirms what we have always known – The Quapaw Nation is Indian Country. Our Reservation still exists, and our sovereign rights are what we have always known them to be,” said Quapaw Nation Chairman Joseph Tali Byrd. “The Quapaw Nation has proactively taken the necessary steps to address public safety within our jurisdictional boundaries by upgrading our court system and providing increased support to the Quapaw Nation Marshals and local law enforcement. Although the resolution of this matter took time, we are pleased the court arrived at the correct decision and are eager to work with federal and state authorities, as well as our tribal neighbors to implement positive changes to our criminal justice system.”
The Quapaw Nation is comprised of about 5,600 members. The roughly 88-square mile reservation is located in far northeast Ottawa County and shares borders with the states of Kansas and Missouri.
Kenny Wright, district attorney in Delaware and Ottawa counties, said the decision Thursday was the correct one, “under the current framework the U.S. Supreme Court gave us in McGirt.”
Wright said he believes working with the Cherokee Nation to implement McGirt on its reservation will be beneficial when it comes to the court’s most recent ruling regarding tribal jurisdiction.
“I think it will make implementation with the Quapaw tribe much easier,” Wright said.
He said his office this morning contacted the more than two dozen law enforcement agencies in his district to advise them of the decision.
“I basically said now we treat the Quapaw reservation just like we’ve been dealing with the Cherokees,” Wright said. “It will get easier as time goes by, but we sure worry about cases that could fall through the cracks.”
Wright said he has seen a “handful” of property crime cases that were dismissed under McGirt not be picked up by federal or tribal authorities.
Wright said he remains hopeful that the U.S. Congress will eventually address the myriad of issues caused by the McGirt ruling.
U.S. Rep. Tom Cole has introduced a bill that lets two tribes compact with the state over law enforcement jurisdictional matters, but it has yet to gain any traction with state officials or other Congress members.
Until then, Wright said there are cases pending in district court and appellate court that involve other tribes in the area where jurisdiction has been challenged.
Wright said he believes there are enough differences in the history of some of the tribes that could keep them from regaining their reservation status.