Jan. 4—Matt Ballard, Rogers County’s district attorney, faces a U.S. government lawsuit challenging his authority to prosecute tribal citizens.
The U.S. Department of Justice sued Ballard Dec. 23. Carol Iski, district attorney for McIntosh and Okmulgee counties, faces a similar suit.
In its complaint filed in the U.S. District Court for the Northern District of Oklahoma, the government argued Ballard and Iski may not prosecute Native Americans on tribal land. The government cites McGirt v. Oklahoma, the 2020 case in which the U.S. Supreme Court affirmed the sovereignty of Oklahoma’s tribal nations.
“The longstanding rule, recently reaffirmed by the U.S. Supreme Court in McGirt v. Oklahoma, is that the states and their political subdivisions lack criminal jurisdiction over Indians in Indian country unless Congress authorizes it,” the government writes. “…In Oklahoma, therefore, the United States and Indian tribes share exclusive criminal jurisdiction over Indians in Indian country.”
The federal government seeks declaratory and injunctive relief — that means it wants the court to declare the state lacks jurisdiction and bar Ballard and Iski from pursuing further legal action against tribal citizens.
The government particularly challenges Ballard’s prosecution of three men: Brayden Bull, a Navajo man found guilty on state charges of child pornography; Tony Williams, a Chickasaw man accused of selling fentanyl-laced pills; and Eric Ashley, a Choctaw man accused of abusing and exposing his stepchildren to illegal drugs.
As Ballard’s district falls within the Cherokee Nation, the government argues McGirt forbids him from prosecuting the men on the state’s behalf. According to the government’s complaint, the Cherokee Nation has charged all three men, and the federal government has charged Bull.
Ballard said he was shocked when he first heard about the lawsuit.
“I never expected to be sued by the United States of America,” Ballard said. “Even knowing this outgoing presidential administration, knowing what they had done with commutations and some other things, I was still surprised that they decided to try to push local law enforcement out of local cases at the last minute.”
He said state agencies such as the Rogers County Sheriff’s Office and Oklahoma Bureau of Narcotics investigated all three cases — none were federal investigations.
Ballard said his authority to prosecute the men arises from two cases: Oklahoma v. Castro-Huerta, a U.S. Supreme Court case decided in 2022, and Tulsa v. O’Brien, an Oklahoma Court of Criminal Appeals case decided Dec. 5.
In Castro-Huerta, the Supreme Court decided the state and federal government share jurisdiction to try non-Native Americans who commit crimes against Native Americans on tribal land.
“The Supreme Court said [in Castro-Huerta] the state has jurisdiction over every crime that happens within the state, unless it’s specifically preempted by Congress,” Ballard said.
The Major Crimes Act empowers Congress to preempt state jurisdiction in prosecuting tribal citizens who commit “major crimes,” Ballard said. These include offenses such as murder, arson, burglary and most sexual offenses.
Ballard said none of the three men are being charged for crimes that fall under the Major Crimes Act; though Bull filmed himself sexually assaulting young children, Ballard’s office only pursued child pornography charges against him.
In O’Brien, Oklahoma’s highest court ruled the city of Tulsa could pursue a DUI charge (a non-major crime) against Nicholas Ryan O’Brien, a member of the Osage Nation. Tulsa falls in the Muscogee (Creek) Nation.
Ballard said Castro-Huerta and O’Brien empower him to prosecute tribal citizens accused of non-major crimes.
“We’ve done the same analysis on all of these [three men’s cases],” Ballard said. “That’s why we believe we’ve got jurisdiction to proceed with them, and that’s why I intend to move forward with them.”
In its complaint, the Department of Justice said Ballard is interpreting Castro-Huerta too broadly — the government argues the ruling in Castro-Huerta applies only to crimes committed by non-tribal citizens against Native Americans on tribal land.
The complaint does not address O’Brien.
Chad Harsha, attorney general of the Cherokee Nation, said McGirt has required “mutual respect for jurisdictional limits” among the tribal, state and federal governments.
“Attempts by some law enforcement officials to circumvent the law and improperly impose state jurisdiction over tribal citizens within tribal reservations impact the integrity of criminal cases and put Oklahoma’s public safety at risk,” Harsha said. “We appreciate the Department of Justice’s action to properly enforce the law and will continue to follow this matter closely as we continue to protect our rights and our sovereignty.”
Ballard said it puts Oklahomans’ safety at risk to bar the state from prosecuting tribal citizens.
“If the federal government is right that there is not a local interest in local law enforcement, that jeopardizes every person in our community,” Ballard said. “… It’s incredibly significant, and I think it’s incredibly offensive that you have DOJ coming in and saying that there’s not a local interest in this … we believe absolutely there’s a local interest in getting child pornographers, drug traffickers, those people off of our streets.”
Ballard said he hoped President-elect Donald Trump would choose to dismiss the case once he returns to office Jan. 20.