Law & Principles

Cherokee tribe claims jurisdiction in state-run election

August 4, 2023

Ray Carter

The Cherokee tribe has claimed it has the power to investigate a state-run election, inserting the tribe into the civic affairs of a small Oklahoma community whose citizens include non-Indians who have no representation in Cherokee Nation government.

According to one document, Cherokee tribal police reportedly arrested three individuals for alleged crimes in the state-run election, even though a state district judge had already ruled on the case and allowed the three disputed votes to be counted.

The tribe has also demanded that state officials turn over physical ballots from the state election.

On April 4, an election was held for a position on the Town of Porum Board of Trustees. The race drew four candidates. On election day, there were 41 total votes cast in the election and the top two candidates, Lloyd Paul Hays and Cristy Catron, each received 16 votes apiece.

The winner of the race was decided by drawing a name out of a box in late April, a practice prescribed by state law when a race ends in a tie. Hays’ name was selected and he was declared the winner.

Catron alleged that three absentee ballot votes cast for Hays were cast by people who did not live in Porum or Muskogee County.

The case was heard by Muskogee County District Judge Timothy King, who ultimately rejected Catron’s challenges and allowed the election results to stand.

On June 20, well after the election dispute had been settled in district court, the Muskogee County Election Board received subpoenas from the Cherokee Nation’s tribal district court that “commanded” state officials to turn over the paper absentee ballots cast by Brandon Landon Berry, Bobby Landon Berry, and Briley Hall Berry.

The subpoenas did not identify any legal authority that would allow the tribe to issue orders to employees of the state of Oklahoma.

A June 20 email by Kelly Beach, secretary of the Muskogee County Election Board, discussed the Cherokee Nation subpoenas.

“The (tribal) investigator, Jackie Smithson, told me that each of the defendants have been arrested, jailed and required to post bond,” Beach wrote.

The Cherokee Nation District Court website shows that those three individuals were charged with voting fraud and tribal arrest warrants were issued on May 18.

The Cherokee Nation office of attorney general did not respond to a request for copies of any associated affidavit issued by the tribe related to the case. Cherokee tribal police similarly did not respond to a request for the affidavit.

Cherokee Nation Attorney General Sara Hill described the tribe’s actions as a routine collaboration with local police, but did not explain why the tribe arrested individuals after the case had been heard in district court.

“Every day, the Cherokee Nation files criminal cases based on investigations by city and state law enforcement officers,” Hill said. “The Cherokee Nation has had zero involvement in the conduct of Porum’s election, but it has worked collaboratively with Porum PD (police department) to prosecute fraud based on the investigation of city officers. This kind of tribal/state collaboration is good for Oklahoma.”

The Cherokee tribe’s actions are just the latest instance of tribal officials seeking expanded power since the U.S. Supreme Court’s 2020 decision in McGirt v. Oklahoma, which held that the Muscogee (Creek) Nation’s historic reservation was never formally disestablished for purposes of federal major-crimes law.

The ruling has since been applied to declare that the historic reservations of several other tribes, including the Cherokee Nation, were never formally disestablished. The areas impacted cover 42 percent of Oklahoma, including most of Tulsa.

Even as the Cherokee Nation is claiming to have oversight powers in a state-run election involving non-Indians, the tribe is actively arguing in court that state law does not apply to Cherokee citizens in many instances.

In one case now before the Oklahoma Supreme Court, an amicus curiae brief filed by the Cherokee Nation, Chickasaw Nation, and Choctaw Nation of Oklahoma declared that the Oklahoma Tax Commission’s claim of authority to collect state income tax from Oklahomans who are also tribal members “threatens the (Indian) Nation’s sovereignty.” The Cherokee brief argues that if any Oklahoman who is also American Indian lives within the 42 percent of Oklahoma lying within the historic reservation lines impacted by McGirt, then “the State is barred from taxing her income …”

In another case, a brief filed by the Cherokee Nation, Chickasaw Nation, Choctaw Nation of Oklahoma, Quapaw Nation, and Seminole Nation declared that a district court ruling upholding Tulsa’s authority to issue speeding tickets to American Indian drivers “threatens to establish a new presumption in eastern Oklahoma—that municipalities have jurisdiction over Indians within their boundaries,” and declared that would “strike at the heart of tribal authority.”

A municipal court and district court both upheld Tulsa’s authority to issue speeding tickets to all citizens within the municipality, but the U.S. Court of Appeals for the 10th Circuit overturned those decisions and ruled that American Indians were exempt from enforcement of municipal laws in communities lying within McGirt reservations.

The Cherokee Nation’s actions in the Porum election dispute come as Gov. Kevin Stitt has sought to negotiate new compacts with Oklahoma tribes on several issues, including tobacco taxes. Stitt has said the compacts should include language making clear that the tribes’ authority remains the same as it was pre-McGirt, but lawmakers overruled Stitt to advance one-year compacts that include language sought by tribal officials that could allow the tribes to make expansionist arguments in court.

NOTE: This story has been updated since publication to include a comment provided by the Cherokee Nation. Comment was sought prior to publication.