Gov. Stitt appoints special counsel to force state prosecution of Native American

Gov. Kevin Stitt has intervened in an extraordinary case before the Oklahoma Court of Criminal Appeals seeking a route for the state to resume prosecuting some Native Americans on reservations in Oklahoma.

The governor notified the appeals court late Thursday afternoon that he had appointed a district attorney to serve as a special counsel in the case, which is focused on whether the state can prosecute a Navajo tribal member suspected of making and distributing child pornography on the Cherokee Nation’s reservation.

“As special guardian of the State and its interests, the Governor refuses to stand by, idling on the sidelines,” the governor’s attorneys told the appeals court. “Although the defendant is a member of the Navajo Nation, this isn’t an Indian issue; this is a public safety issue of first importance.”

The governor appointed Mike Fields, the district attorney for five western Oklahoma counties, to prosecute Brayden Kent Bull, the Navajo Nation member.

Stitt’s intervention came more than a month after Matt Ballard, the district attorney for Craig, Mayes and Rogers counties, in eastern Oklahoma, asked the Oklahoma Court of Criminal Appeals to order a special district judge to issue an arrest warrant for Bull, something the judge declined to do because he believed the state lacked jurisdiction over Bull.

Case the latest in tension over jurisdiction following Supreme Court's McGirt ruling

The apparently unprecedented case is playing out as the latest battle over criminal jurisdiction in eastern Oklahoma in the wake of the 2020 U.S. Supreme Court decision in McGirt v. Oklahoma.

That decision has led to most of eastern Oklahoma being affirmed as tribal reservations and the state being barred from prosecuting Native Americans on those reservations. The federal government and tribal prosecutors now handle the cases in which the accused is Native American.

The underlying question in the case before the Oklahoma Court of Criminal Appeals is whether the state has criminal jurisdiction over a tribal member when the alleged crimes are committed on another tribe’s reservation. They are sometimes referred to as “non-member” cases. Bull is a Navajo, and the alleged crimes occurred on the Cherokee reservation.

Former Oklahoma Attorney General John O’Connor pushed the same question in a separate criminal case last year, but that case was eventually sent back to a district court because of some uncertainty regarding the status of the reservation involved.

McGirt v. Oklahoma, 3 years later: How police work on the Muscogee Nation reservation

The question is back, for now, in the form of Ballard’s request to the appeals court to effectively order Bull’s arrest. And it is a question that Stitt and state district attorneys ultimately want the U.S. Supreme Court to consider since a decision in their favor could further narrow the scope of the McGirt decision.

“This issue is incredibly consequential for day-to-day law enforcement throughout northeast Oklahoma,” Ballard, the district attorney, told the Court of Criminal Appeals in asking them to order Bull’s arrest.

“Instead of the impossible task of contacting 574 separate Native American tribes to establish jurisdiction, this Court has the opportunity to hold that jurisdiction can be determined with a single phone call to the tribe of the reservation where the crime occurred … This issue is ripe for timely determination. Every day that passes with the issue undecided only adds to the current instability in law enforcement. The unprecedented uncertainty facing local law enforcement is real and demands the certainty that this court can provide.”

Frustration over McGirt ruling

District attorneys and law enforcement officials in eastern Oklahoma have been frustrated for the last three years about cases that they can’t prosecute because of McGirt — some of which have not been pursued by U.S. attorneys or tribal courts.

That’s not the situation now with Bull. The U.S. attorney’s office in the Northern District of Oklahoma, based in Tulsa, filed child pornography and child sexual abuse charges against Bull this month, a few weeks after the special district judge declined to issue an arrest warrant in the state case. The docket in the case shows Bull was in custody in Muldrow, in Sequoyah County.

Still, Ballard, the district attorney for Craig, Mayes and Rogers counties, told the Court of Criminal Appeals that the case presents what could be an extension of the U.S. Supreme Court’s decision last year that restored Oklahoma’s jurisdiction over crimes in which the accused is a non-Native American but the victim is Native.

In that case, Oklahoma v. Castro-Huerta, the high court said, "Under the Constitution, States have jurisdiction to prosecute crimes within their territory except when preempted by federal law or by principles of tribal self-government. The default is that States have criminal jurisdiction in Indian country unless that jurisdiction is preempted. And that jurisdiction has not been preempted here."

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Ballard is arguing that state prosecution of non-member Native Americans on reservations also is not preempted by federal law or principles of tribal self-government and that Supreme Court precedents support his position.

“Castro-Huerta and other binding precedent compels the conclusion that the state has jurisdiction over Indians committing crimes on a different tribe’s reservation,” the district attorney told the Oklahoma Court of Criminal Appeals.

“But were there any doubt, core principles of Indian law and constitutional considerations require the Court to avoid the opposite conclusion.”

The governor’s appointment of a special counsel suggests that he is pursuing the prosecution and arrest of Bull outside of Ballard’s district.

The document filed by Stitt’s attorneys praises Ballard’s work on the case, but says the matter had gone on too long. The offenses for which Bull has been charged are two years old. Field was being appointed, the governor’s counsel said, “to protect the interests of the State in this action and to prosecute the underlying offenses.”

Though extraordinary, this isn’t the first McGirt-related case in which a prosecutor has brought an action against a judge. In 2021, a district attorney appealed a ruling by a Pushmataha County judge that overturned a murder conviction because of McGirt. That case led to a ruling by the Oklahoma Court of Criminal Appeals that the McGirt decision did not apply to those whose convictions had already been upheld on direct appeal. The U.S. Supreme Court upheld that ruling, which dramatically reduced the number of cases involving Native Americans eligible for court review.

This article originally appeared on Oklahoman: Gov. Stitt intervenes in state's prosecution of Native American