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Understanding tribal legal systems increasingly important

By Hilary Hudson Clifton

This article appeared as a Guest Column in The Journal Record on March 11, 2021.

The Cherokee Nation Supreme Court recently ruled that the words “by blood” must be removed from the tribe’s constitution – a decision intended to afford full citizenship rights to descendants of individuals formerly enslaved by members of the tribe, known as Freedmen. The opinion is one of many recent examples demonstrating how Oklahoma’s intricate and often ugly history has led to the unique cultural and legal landscape in the state today. Practitioners need to be aware of both the history and trends to successfully guide clients.

Hilary Hudson Clifton is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Of course, the most notable piece of news from Indian Country in Oklahoma over the past year has been the U.S. Supreme Court decision in McGirt v. Oklahoma, which ruled that a large portion of eastern Oklahoma remains a reservation for the Creek Nation because it was never disestablished by Congress.

While McGirt’s implications are beyond the scope of this article, the Cherokee Nation’s recent citizenship opinion highlights an equally interesting facet of Oklahoma’s legal environment: Autonomous tribal court systems operate within the state, which gives rise to numerous jurisdictional issues. One likely effect of McGirt is that tribes will take an increasingly prominent role in negotiating and even regulating commercial activities across larger areas in Oklahoma. Those doing business with tribal nations may be asked to consent to tribal jurisdiction in certain circumstances. Accordingly, having at least a baseline understanding of tribal court systems, procedure, and bar requirements is becoming increasingly important.

In 1979, there were four Courts of Indian Offenses (“CFR Courts”) operated by the U.S. Department of the Interior Bureau of Indian Affairs. These courts hear matters over which tribes that have not established court systems have jurisdiction. As tribes established their own justice systems, the CFR courts have been deactivated. Today, of Oklahoma’s 39 federally recognized tribes, 22 currently have their own judicial systems, so only two CFR Courts serving 13 tribes currently exist. The Southern Plains Region CFR court hears matters on behalf of the Fort Sill Apache Tribe, the Kiowa Indian Tribe, and the Caddo Nation, among others, and the Eastern Oklahoma Region CFR Court hears matters on behalf of five tribes, including the Eastern Shawnee Tribe and the Ottawa Tribe. The history of the CFR courts in Oklahoma illustrates a distinct trend toward tribal self-governance, one that will continue to shape how Oklahoma residents, Native and non-Native, engage with the multiple justice systems operating in the state.


For more information on how the information in this article may impact your business, please call 405.606.4730 or email Hilary Hudson Clifton.

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NewsOK Q&A: High court’s tie in assault affirms tribe’s self-determination right

From NewsOK / by Paula Burkes
Published: June 30, 2016
Click to see full story – High court’s tie in assault affirms tribe’s self-determination right

Click to see G. Calvin Sharpe’s attorney profile

G. Calvin Sharpe has 30 of years of experience in Oklahoma courtrooms, representing a diverse list of business clients in matters relating to medical malpractice, medical devices, products liability, insurance and commercial litigation.

Q: Generally speaking, what was the Dollar General case about, originally?

A: In the original case, there was a Dollar General store operating within the Reservation of the Mississippi Band of Choctaw Indians. A 13-year-old boy, a tribal member, was working at the store as a part of a youth opportunity program. In 2005, a suit was brought by the boy’s parents that alleged that the boy was sexually assaulted by the store’s nontribal manager in the summer of 2003. In the binding contract with the tribe to operate on tribal land, Dollar General agreed to tribal court civil jurisdiction, so the case went to a tribal court. The Choctaw courts denied a motion to dismiss the case due to lack of jurisdiction citing a 1981 Supreme Court Case, Montana v. United States, which held that a “tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members.” Dollar General subsequently sued in federal court to clarify the terminology, “other means.” (Dollar General Corp. v. Mississippi Band of Choctaw Indians)

Q: The Supreme Court decision was tied, 4-to-4, which means that the lower court decision of the U.S. Court of Appeals for the Fifth Circuit is upheld. What was that Fifth Circuit’s upheld decision?

A: At the heart of this decision is the question of whether tribal courts have the right to exercise civil authority over people who are operating within tribe’s jurisdiction, but who aren’t tribal members. In the federal case subsequent to the tribal rulings in Choctaw courts, Dollar General petitioned for certiorari, which means they asked a higher court to review the determination of a lower court. In the judgment of the U.S. Court of Appeals for the Fifth Circuit, Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members.

Q: How has this Supreme Court ruling, essentially allowing the lower court decision to stay, changed the nature of tribal jurisdictional authority?

A: In the decision of the appeal to the Supreme Court of the United States of America, the high court was deadlocked, which allows the decision of the U.S. Court of the Appeals for the Fifth Circuit to stand. The judgment is affirmed by an equally divided court, (which) allows the case to proceed to resolution in tribal court without further appeals regarding authority. However, there’s the likelihood that, in a similar case, the Supreme Court would grant another certiorari when the Senate confirms a replacement for Justice Scalia.

Q: Why is this viewed as a success for tribal sovereignty and tribal governmental authority?

A: Thursday’s Supreme Court ruling served as a significant win in the fight for native tribal court authority. The Supreme Court tie affirms native groups’ right to self-determination. This allows federally recognized tribes to continue developing their own governmental bodies.