Guest: Carter County DA is wrong. Oklahoma lacks basis for seizing man's firearm

State officials in Oklahoma are pushing the U.S. Constitution to its limits.

Last month, Jimmy Ward agreed to forfeit his firearm to the state of Oklahoma on the charge of hunting out-of-season allegedly in violation of state law. But Ward is a member of the Osage Nation who was hunting on Chickasaw lands, and he was already sentenced and fined in tribal court for the same offense.

“Oklahoma retains its statewide jurisdiction and right to enforce its wildlife conservation statutes,” argues Craig Ladd,_, Carter County district attorney, “regardless of tribal membership status.”

Ladd is incorrect. Oklahoma has no power to seize Ward’s firearm, and its assertion of jurisdiction to do so endangers the inherent freedom of Native American tribes to govern their members and territories.

Ward’s case is the next battle in an ongoing war between Oklahoma and tribes. In July 2020, the tribes won big in McGirt v. Oklahoma when the Supreme Court held that Congress never disestablished the Muscogee (Creek) Nation’s reservation, thereby resurrecting ancestral tribal lands and liberating the Native Americans on them from state criminal jurisdiction.

Since the death of Justice Ruth Bader Ginsburg and the consequent change in the high court’s composition, Oklahoma has worked tirelessly to reassert its powers over tribal lands. Law professor Robert Miller, of Arizona State University, said Oklahoma’s governor got involved in Ward’s case for the same reason: “to fight McGirt in any way possible.”

Under our Constitution, tribes are semi-sovereign nations subject only to the authority of Congress. The British treated the tribes as foreign states by entering into treaties with them, and the United States continued that tradition after gaining independence. Article II, section 2 of our Constitution vests the power to make treaties in the president, subject to the approval of the Senate. Article VI, meanwhile, makes duly authorized treaties “the supreme Law of the Land,” just as federal statute. Thus, the Supreme Court recognized in 1832 that state law is inoperative on tribal lands established by federal treaties.

In 1837, the United States entered into the Treaty of Doaksville with the Chickasaw and Choctaw tribes, establishing reservations for them in what is today southeastern Oklahoma. In the Treaty of Washington, ratified in 1856, Congress further pledged to “forever secure and guarantee” Chickasaw lands, reaffirming the tribe’s “unrestricted right of self-government, and full jurisdiction over” members of the tribe and their properties, going so far as to promise to remove intruders, by implication including state officials hostile to tribal interests. Ward is a member of the Osage — not the Chickasaw — but that is immaterial, Congress having extended tribes’ criminal misdemeanor jurisdiction over members of any tribe, recognizing such authority as essential to self-government.

State officials ask that we ignore these promises in the name of wildlife conservation. True enough, the Supreme Court has allowed states to regulate tribal treaty rights, such as fishing, through “reasonable and necessary” conservation measures. The state’s argument is nonetheless unavailing because civil asset forfeiture proceeds on the basis that a crime has been committed.

According to the Institute for Justice, Oklahoma may seize civilian property so long as it appears to have been used in connection with a crime — in this case, hunting out of season. Thus, in effect, Ward stands to lose his property unless he can prove criminal innocence with respect to an alleged crime over which the state lacks jurisdiction, as conceded by its own courts. This is nothing more than a cynical attempt to work around McGirt. Ward has committed no crime within the meaning of state law, and as such Oklahoma has no basis for confiscating his property.

In 1856, the United States promised the Chickasaws a reservation within which to govern, free from state jurisdiction. 167 years later, the state of Oklahoma seized a Native man’s property for an offense committed on that reservation, in clear violation of Chickasaw treaty rights.

To let such injustice stand is to ignore our own treaties and desecrate the rights they purported to secure. Respect for the rule of law requires action. Congress must remedy Oklahoma’s abuse of jurisdiction by statute, ensuring the return of Jimmy Ward’s lawful property and vindicating this nation’s promise to the Chickasaw people.

Charles Brandt is a Juris Doctor candidate at the George Washington University Law School.

This article originally appeared on Oklahoman: Oklahoma has no basis for enforcing conservation statutes on tribal land