Here is the opinion

IN THE MATTER OF S.J.W.

This is a truly unfortunate opinion with absurdly weak analysis that extends the reasoning in Castro-Huerta to reservations in Oklahoma for ICWA cases involving non-member Indian children residing on reservation.

So we are all on the same page, 1911(a) of ICWA states:

An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law.

(emphasis added)

This case involves the jurisdiction of the Chickasaw Nation tribal court over a Muskogee child. The parents appealed a state child protection case claiming the state did not have jurisdiction over the child after McGirt and the Chickasaw Nation had exclusive jurisdiction. There is, of course, an easy answer to this, which is the Tribes after McGirt all signed 1919 agreements with the State of Oklahoma to ensure continued concurrent jurisdiction post-McGirt when it involves an ICWA case. The Oklahoma Supreme Court would like you to know that this is a “misunderstanding of the construction of 1911(a)” which, frankly, came as a surprise to me and seems to be lacking any legal support, but here we are. 

Instead, the Oklahoma Supreme Court took it upon itself to, for the first time I’ve ever seen, claim that 1911(a) only refers to territorial jurisdiction but not subject matter jurisdiction. In fact, the Court  wrote “Whether § 1911’s ‘jurisdiction’ means ‘subject matter jurisdiction’ has received little attention, but requires our review.” I mean, I really don’t think it did, but here we are. Again. 

In doing so, the  Court decided that Castro-Huerta, involving the prosecution of non-Indians on reservation, is broad enough to hold that the state courts have subject matter jurisdiction over tribal reservations for . . . all the things?

When federal Indian law issues arise, we must take special care to determine if federal law preempts or ousts the state of its general adjudicative authority. Id. When determining jurisdictional disputes for cases arising within the external boundaries of a reservation, we must remember that Oklahoma’s sovereignty does not stop at reservation borders. Castro-Huerta, 597 U.S. at ___, 142 S. Ct. at 2488. The U.S. Constitution authorizes Oklahoma district courts to exercise jurisdiction in Indian country–Oklahoma’s territory includes “Indian country.” Id. at 2493.

Indian country is part of the State, not separate from the State. To be sure, under [the United States Supreme Court’s] precedents, federal law may preempt that state jurisdiction in certain circumstances. But otherwise, as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country. See U.S. CONST., Amdt. 10.

Id. The general rule is that Oklahoma is “‘entitled to the sovereignty and jurisdiction over all the territory within her limits.'” Id. (citing Lessee of Pollard v. Hagan, 44 U.S. (3 How.) 212, 228, 11 L. Ed 565 (1845)).

The State of Oklahoma by its Constitution has broadly authorized its district courts to exercise subject matter jurisdiction over “all justiciable matters” unless otherwise noted in the Constitution. Okla. Const. art. VII, § 7(a). Adjudicating children deprived surely is a “justiciable matter.” Ibid. While the parties refer to ICWA’s general reference to “jurisdiction” as “subject matter jurisdiction,” we decline to accept this characterization. This is especially so given the presumption of a district court’s general adjudicatory jurisdiction

Therefore, the Court holds that the state has concurrent jurisdiction on reservation over non-member Indian children, because 1911(a) only means tribes have territorial jurisdiction exclusive concurrent as to its members. To be fair, the opinion is fairly confusing, but ultimately states:

When a child appears before a district court judge and is subsequently determined to be a member Indian, the district court maintains subject matter jurisdiction. But the sovereign status of a tribe and its territorial jurisdiction over its members and territory necessitates disposition of the matter in that tribe’s tribal courts because self-governance is implicated. See Holyfield, 34. (Abusive state practices with respect to Indian Children “seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.” (citations omitted) (quotations omitted). Section 1911’s “jurisdiction” does not concern a district court’s subject matter jurisdiction; it concerns the connection to the forum and to the group of people (tribe). 

I mean, ICWA seems pretty clear that the exclusive jurisdiction is over any child custody proceeding, which feels like subject matter jurisdiction to me, and every court I’ve ever been in front of, but the Oklahoma Supreme Court seems to believes the state maintains subject matter jurisdiction over all child protection proceedings whether on or off reservation. It’s truly fascinating to see the Oklahoma Supreme Court claim that territorial jurisdiction “as a concept of international law, is important for our state . . .”

The Court then holds, without citation, that 1911(a) requires the Indian child to be residing on their own reservation rather than any reservation for exclusive (?) jurisdiction–though it is certainly not clear from the language of the law that is the intent. The Court notes again this question hasn’t been subject to “judicial scrutiny,” which is probably because the language is pretty straightforward and tribal jurisdiction over non-member Indians is noncontroversial. It appears from the last sentence of the opinion that the Chickasaw Court doesn’t have jurisdiction over the non-member Indian child at all.  I guess, here we are.