As was discussed on the Indian Law
Overview page, the McGirt case has resulted in a clear decision that
the State of Oklahoma has never had jurisdiction over Indians in Indian
Country. Various courts, including state courts, have determined
that the reservations given to the five civilized tribes have never been
disestablished and therefore remain to this day. Other tribes will
have to raise this issue on an individual basis.
Because the State (and its political subdivisions) have never had
jurisdiction, Mr. Dunn has filed lawsuits in both state and federal
court in an effort to force the State (and its political
subdivisions) to refund monies that have been paid by Indians in Indian
Country in fines, court costs, or DA supervision fees. Mr. Dunn
believes that to allow the State to keep these funds represents unjust
enrichment, since the State never had the legal ability to force the
Indians to pay those fines and costs. This is especially true
after Murphy was decided in 2017, placing the State on notice that the
Creek Reservation - and several others that were discussed in the
decision - had never been disestablished and the State was lacking
jurisdiction. Instead of paying heed to this decision...the State
continued "business as usual".
The state court action dealing with the
Creek Reservation was dismissed by the trial court and was appealed.
The Oklahoma Supreme Court determined that the District Court did not
err and upheld the dismissal in the case of
Nicholson v. Stitt, 2022 OK 35. Essentially, the Court
determined that the Plaintiff's claims for relief required each
Plaintiff to individually challenge their state / municipal court
conviction before being able to seek their refund. That
requirement is an impossibility because of the the Oklahoma Court of
Criminal Appeals decision in
State ex rel District Attorney v. Wallace, 2021 OK CR 21,
which held that the McGirt decision was a "new procedural rule"
and therefore could not be applied retroactively.
Since many municipalities had relied upon the validity of Section 14 of
the Curtis Act, Mr. Dunn filed a test case by appealing a denial of
post-conviction relief from the Municipal Court of Tulsa to Federal
Court (as required by the Act). The Federal Court indicated that
it was not prepared to handle that kind of filing. The case was
recast as a Petition seeking Declaratory Judgment followed by the appeal
in Hooper v. City of Tulsa, 21-CV-165-WPJ-JFJ. That case
was dismissed by the District Court by an
Opinion and Order filed on April
13, 2022. That matter has been appealed to the Tenth Circuit Court
of Appeals in Case No. 22-5034. Oral argument on that matter is
scheduled for the end of March, 2023.
The Federal court litigation involving the Cherokee Nation mirrored the
state court action involving the Creek Nation. It was seeking a
refund of fines and fees paid by Indians to state courts or municipal
courts and asserting that those Courts had no jurisdiction and therefore
the monies should be returned. If successful, this litigation
would likely breathe life back into the state court case as the bulk of
Indian law has its home in Federal Law. That case, Pickup v.
The District Court of Nowata County, 20-CV-346-JBJ-JFJ, was decided
in an
Opinion and Order filed January 31, 2023. An appeal from this
order is likely.
