Kunzweiler, O'Brien ruling challenge to tribal co-governance

If you've been driving on the Broken Arrow or Mingo Valley Expressways lately, you've seen some of the fruit of the US Supreme Court's McGirt ruling on law enforcement. It used to be if some idiot was tailgating you when you were already 10 MPH already over the speed limit, changing lane to lane and zipping through tiny gaps like a Grand Prix driver, the idiot was likely to be driving a BMW. A couple of years ago, it began to seem equally likely that the idiot's vehicle would have tribal tags, indicating the car was owned by someone with tribal citizenship.

This phenomenon seemed to emerge with the legal argument that city governments had no authority over tribal citizens to issue traffic citations. (E.g., Hooper v. Tulsa.) Nowadays there's no pattern to the reckless driving on Tulsa's expressways, perhaps because the jurisdictional question has created a sense of lawlessness, perhaps because the jurisdictional question has had a cooling effect on Tulsa Police, which used to have squads of motorcycles set up to nab reckless and unwary speeders. When I saw the gravel semi trailer on its side on eastbound 51 under southbound 169 last week, I surmised that the semi driver had had to make a split-second swerve to avoid a collision with a speeding, lane-switching car, lost balance, and tumped over.

Last November Tulsans foolishly elected a mayor who made tribal co-governance a centerpiece of his campaign. Monroe Nichols declared that he would no longer have the city contest any challenge by the tribes over the city's jurisdiction.

A NonDoc story last month reveals that the problem is worse than that: Nichols has ordered TPD to stop making criminal referrals to the Tulsa County District Attorney's Office if the suspect is a citizen of some tribe or another. On December 5, 2024, just before Nichols took office, the Oklahoma Court of Criminal Appeals ruled in O'Brien v. City of Tulsa that the City of Tulsa has concurrent jurisdiction to prosecute crimes committed by citizens of other tribes on a particular tribe's reservation.

The case involved an MMA fighter named Nick O'Brien, who looks like a white guy, but he happens to have Osage citizenship, so there's a special ancestor somewhere up his family tree. He was arrested on August 30, 2021, for DUI, open container, driving with an expired tag, driving left of center, and improper use of left lane, in a part of Tulsa that falls within the Creek Nation's historical boundaries. Municipal judge Marshall McCune denied dismissal of the charges based on McGirt but then later granted dismissal of the charges based on Hooper. City of Tulsa prosecutors, not yet under the authority of Nichols, appealed the dismissal.

District Attorney Steve Kunzweiler -- you know, the man that the voters, regardless of tribal status, elected to prosecute crimes in Tulsa County on our behalf -- says that he will use Open Records requests if necessary to get City of Tulsa arrest reports to ensure that criminals are prosecuted. Kunzweiler told NonDoc, "I have my belief that very few of these crimes are being actually fully prosecuted. I have enough information to suggest to me that we have people who are committing repeated DUIs and are still out on our streets. I'm not going to stand for that." Mayor Nichols replied that the City is "sitting on 400 cases and working with tribes to make sure those are also prosecuted." Earlier in the story, it's indicated that the city has not referred these cases for prosecution anywhere but will once some kind of agreement between the city and the tribes is negotiated and ratified.

Nichols denies Kunzweiler's voter-ratified authority over prosecuting crimes in Tulsa County. Instead, Nichols wants our DA to be content as a mere stakeholder among other stakeholders, with a seat at the table but not the authority he was elected to exercise. "I think Mr. Kunzweiler is going to have to understand that being the DA does not make you the king of everything. Being the DA makes you one of the stakeholders -- like being mayor or being a police chief (or) like being the leader of a tribal nation -- it makes you a stakeholder in making sure this is the safest city in the country."

This idea of "stakeholders" exposes the anti-democracy heart of tribal co-governance. Prosecution won't be the sole responsibility of an official who was elected by the voters and can be denied re-election by the voters; it will be controlled by a group of stakeholders which is not accountable to the voters as a group and which includes stakeholders elected by a tiny minority of a tiny minority of voters, unaccountable to the vast majority.

NonDoc's story also discusses lawsuits filed by the lame-duck Biden Justice Department against two other DAs, Matt Ballard (Rogers, Craig, Mayes) and Carol Iski (Okmulgee, McIntosh), with parallel suits by the Muscogee (Creek) Nation against Ballard and Iski. The Creek Nation has also now filed suit against Kunzweiler and Tulsa County Sheriff Vince Regalado. Gov. Stitt has asked the federal court to allow him to intervene on behalf of the State of Oklahoma in the MCN case against the City of Tulsa; Mayor Nichols is committed to capitulating to the tribes, but Stitt sees the dangerous implications for law enforcement for the State and the counties and municipalities in the eastern half of the state. All of these lawsuits are about one thing: Stopping the State of Oklahoma, its DAs, its county sheriffs, and its local police departments from prosecuting any Indian from anywhere who breaks the law in "Indian country."

Kunzweiler rightly points out, as we have pointed out here, that in 1907 no one -- not the federal government, not the state government, and not the tribal governments -- believed that there were still Cherokee, Creek, Chickasaw, Choctaw, and Seminole reservations on which the tribal governments (which were being wound down as unnecessary) held criminal jurisdiction.

In its amicus brief in one of the Creek lawsuits, the Cherokee Nation says that it spent $74 million to beef up its criminal justice system to handle cases that were previously prosecuted by DAs. Think about that. What exactly has the tribal maneuvering post-McGirt done to benefit their citizens? $74 million that might have gone to benefit tribal citizens directly is instead being used to create a duplicative system of courts and allowing child molesters like Jimcy McGirt to go free.

Good-hearted but poorly informed people who are casually following this legal struggle may think of this as yet another attempt by evil Caucasians to oppress the long-suffering and noble Indigenous Americans. I haven't been able to find any statistics yet on the distribution of Degree of Indian Blood among tribal citizens, but the math involved in membership growth through generations of intermarriage suggests that most of the beneficiaries of this jurisdictional confusion will be mostly-white criminals with one Indian ancestor 10 generations back and no cultural connection to the tribe of which he is a citizen.