Law & Principles

Ruling reaffirms state power to prosecute crimes within tribal boundaries

November 10, 2025

Ray Carter

A U.S. District Court judge has rejected the Muscogee (Creek) Nation’s request for a preliminary injunction that would prevent Oklahoma state and local governments from prosecuting American Indian defendants who are not members of the Muscogee tribe but allegedly commit their crimes on land within the boundaries of the tribe’s pre-statehood reservation.

The opinion and order in Muscogee (Creek) Nation v. Kunzweiler, issued by U.S. District Judge Gregory K. Frizzell, was welcome news to prosecutors.

“I have long held that there is no justice without concurrent jurisdiction, and I’m glad that this court recognizes the duty of the state to hold offenders accountable,” said Tulsa County District Attorney Steve Kunzweiler.

The Muscogee (Creek) Nation requested that the court issue a preliminary injunction to prevent Kunzweiler from prosecuting American Indian criminals who are not members of the Muscogee Nation.

The Muscogee argued that any American Indian from any of the more than 500 tribes recognized by the federal government is exempt from state prosecution for crimes committed within the historic boundaries of the Muscogee (Creek) Nation’s pre-statehood reservation, an area that includes much of Tulsa today. The exemption from state prosecution would have even included individuals from across the nation visiting Oklahoma.

The Muscogee argued that prosecution was not allowed under the McGirt v. Oklahoma decision issued by the U.S. Supreme Court in 2020, which held that Indian defendants must be prosecuted by the federal government for crimes subject to the federal Major Crimes Act that are committed within the historic reservation of the Muscogee nation, which the court found was never formally disestablished despite a century of practice to the contrary.

That decision applied primarily to crimes such as murder and rape, but not lower-level crimes like those Kunzweiler is now trying to prosecute.

Kunzweiler’s case was bolstered by the U.S. Supreme Court’s 2022 decision in Oklahoma v. Castro-Huerta, which held that the state of Oklahoma retained the authority to prosecute non-Indian criminals who victimize Indians living on tribal reservation land in the state. In that case, the court ruled that the “default is that States have criminal jurisdiction in Indian country unless that jurisdiction is preempted.”

In his opinion, Frizzell noted that Muscogee (Creek) Nation v. Kunzweiler “involves nonmember Indians who allegedly committed crimes not covered by the MCA.”

“The Supreme Court recognized no distinction between member and nonmember Indians in McGirt because the MCA recognizes no such distinction,” Frizzell wrote. “Therefore, the holding in McGirt does not support a presumptive prohibition against state criminal jurisdiction over nonmember Indians in this case, as this case does not involve the MCA.”

Based on prior court decisions, Frizzell held that the state of Oklahoma and Tulsa officials are “not preempted by federal law under ordinary principles of federal preemption from asserting concurrent criminal jurisdiction over nonmember Indians charged with committing crimes not covered by the MCA within the Nation’s Reservation.”

Frizzell also held that the Muscogee (Creek) Nation had not demonstrated “that the exercise of concurrent criminal jurisdiction over nonmember Indians unlawfully infringes on tribal self-government.”

Instead, Frizzell concluded that the state of Oklahoma’s “exercise of concurrent jurisdiction serves tribal interests in prosecuting nonmember Indians for crimes committed in Tulsa County against the Nation and its property, as well as the Nation’s members and their property.”

‘Adverse Effect to the Public Interest’

He noted that the Muscogee (Creek) Nation also did not demonstrate the ability to handle the prosecution of many crimes.

“Tulsa County is largely metropolitan, and thus quite different in many respects than other reservations,” Frizzell wrote. “Though the Nation has presented evidence that it has opened a courtroom in Jenks, Tulsa County, Oklahoma, the testimony presented was that the Jenks court is a traffic court only.”

If the tribe established tribal courts to handle many other crimes, Frizzell wrote that they could also prosecute non-member Indian criminals in those courts, but that did not prevent the state from doing the same thing in state courts.

While he concluded that the Muscogee Nation will not be harmed by state prosecution of non-member Indian criminals, Frizzell noted there would be harm created if an injunction prevented state prosecution.

“Tulsa County has a population of approximately 670,000 people, and a majority of Tulsa County lies within the Nation’s Reservation,” Frizzell wrote. “The defendant, along with approximately sixty (60) assistant district attorneys and sixty (60) support staff, enforces the laws of the State of Oklahoma in Tulsa County. Any alleged injury to the Nation’s sovereignty resulting from the State’s exercise of concurrent criminal jurisdiction over nonmember Indians does not outweigh the injury to the citizens of Tulsa County—both Indian and non-Indian—or the adverse effect to the public interest by enjoining the defendant and his office from enforcing the laws of the State against nonmember Indians.”

He also noted that the office of the Tulsa County District Attorney “prosecuted nonmember Indians for conduct within the Nation’s Reservation for over two years before the Nation filed this lawsuit and its motion for preliminary injunction.”

Gov. Kevin Stitt, a Cherokee who has long defended the state’s authority to prosecute all crimes without deference to an accused criminal’s racial heritage, praised the decision.

“Judge Frizzell’s ruling is common sense, and confirms what I’ve said all along,” Stitt said. “His decision to recognize the authority of district attorneys to pursue justice in every county preserves the rule of law and protects victims across our state.”

Frizzell’s decision marks the latest in a growing line of judicial opinions reaffirming state jurisdiction. The Oklahoma Court of Criminal Appeals and the Oklahoma Supreme Court have also rejected efforts to stretch McGirt beyond its impact on the prosecution of major crimes committed by Indian defendants within the historic boundaries of certain tribes.

“Our DA’s have worked diligently to keep our communities safe, even as some in our state questioned their authority to do so,” Stitt said. “Our nation was founded on the idea that laws should be applied equally, regardless of race. This decision confirms that.”

Other state officials have taken a different stance.

On Oct. 30, Oklahoma Attorney General Gentner Drummond issued a statement announcing he will dismiss all state charges against those arrested for illegal hunting within the historic boundaries of McGirt-impacted tribes in Oklahoma if the accused criminal has any American Indian heritage.

Drummond called efforts to prosecute those criminals in state court “another senseless attempt to ignore the sovereignty of the tribal nations in Oklahoma.”

In a statement provided to NonDoc, an online news site, a spokesman for the Muscogee Nation said the tribe would continue to press its case in court, saying that the “fight against unlawful state authority over Indians in the Muscogee Reservation will continue.”

But Stitt appeared confident the courts will continue to rule in favor of state prosecution of criminals, regardless of their racial heritage or where they commit a crime in Oklahoma.

“These rulings are not close calls,” Stitt said. “They are a consistent, unanimous affirmation that district attorneys have the authority to prosecute crime in their own counties.”