Oklahoma Bar Journal
Tribal Courts: What About Victim's Rights?
By Jacintha Webster
In the wake of the McGirt v. Oklahoma decision that resulted in an influx of cases to tribal courts, one question that arose was, “How would victim’s rights be protected in tribal courts?” As Oklahoma recently passed Marsy’s Law in 2018, adding a number of victim’s rights into the Oklahoma Constitution,1those who work with victims wanted to know whether similar rights would still be enforced. For tribal court practitioners, the intuitive answer seemed to be that tribal court systems do a fantastic job of looking out for victims. Additionally, several tribes have updated and added to their existing victim’s rights provisions following the McGirt decision. This article will provide an overview of the various ways in which tribes have codified victim’s rights as well as offer insight into tribal court practice and victim’s advocacy.
The majority of tribes in Oklahoma that operate courts have at least some victim’s rights provisions in their tribal codes. The tribes with the most extensive, standalone victim’s rights codes are the Cherokee Nation, the Chickasaw Nation and the Choctaw Nation of Oklahoma. These are also three of the Five Tribes that have had their reservations recognized following the decision in McGirt.2 In 2021, the Cherokee Nation enacted the Wilma P. Mankiller Victim’s Rights Act3 that contains substantially similar provisions to that included in the Oklahoma Constitution, including “[u]pon request, to be notified and to be present at all proceedings involving the criminal or delinquent conduct” and “to be heard in any proceeding involving release, plea, sentencing, disposition, and parole.”4 The act also includes the rights of victims and for families of homicide victims to be provided a secure waiting area during court proceedings, to be informed of plea bargain negotiations and to have victim impact statements filed.5 In 2021, the Cherokee Nation established the Crime Victim’s Compensation Revolving Fund to provide compensation to victims of crimes in the Cherokee Nation pursuant to the Wilma P. Mankiller Victim’s Rights Act.6 The Cherokee Nation has also made additions to its existing victim services program, ONE FIRE, that now serves victims of all crimes.7
The Choctaw Nation of Oklahoma’s Criminal Code also contains substantial provisions pertaining to victim’s rights under their Victim’s Rights Act.8 This act provides victims protections that are also very similar to those contained under state law, including to be provided a secure waiting area, to be informed of plea bargain negotiations, to have victim impact statements filed and to be told whether a sentence is overturned or modified. These rights also apply to the families of victims of homicide.9 Beyond the provisions created under the criminal code, the Choctaw Nation of Oklahoma also has a comprehensive Tribal Victim Assistance Program that serves the needs of Native American victims of all types of crimes. These services include emergency food and shelter assistance, court advocacy and safety plan creation.10 The Chickasaw Nation has created a similar Victim Rights Section within their code.11 The Chickasaw code provides that all crime victims are entitled to be “treated with fairness, respect, and dignity and to be reasonably protected from intimidation, harassment, or abuse throughout the criminal justice process” in addition to the right to be “informed of financial assistance and other social services available” to victims of crimes.12 The Chickasaw code provides further rights specifically for victims of violent crimes, including the rights to be informed of all hearings, provide a victim impact statement, be present at all hearings and sentencing, be heard at proceedings involving release of the defendant, be provided a private waiting area and to suggest conditions of probation.13 Prior to McGirt, the Chickasaw Nation, like many tribes, already operated a large program serving domestic violence victims.14 However, after an increase in recognized jurisdiction, the Chickasaw Nation also established a hotline to support crime victims. The Crime Victim’s Support Services Hotline, which can be reached at 833-774-1601, provides referrals to various services within the Chickasaw Nation and helps victims of crimes stay informed through the judicial process.15
The Muscogee Nation, which was the tribe impacted directly by the decision in McGirt, has a tribal code that also contains numerous victim’s rights provisions. In addition to provisions providing for the payment of restitution for all victims of crimes,16 the Muscogee Nation code also sets out specific rights that apply to victims of domestic violence crimes. These rights include the right to consult with the prosecutor if the defendant is being offered a deferred sentence, to be notified of all hearings, to be present and address the court and to receive a report if the defendant is out of compliance with probation requirements.17The Muscogee Nation also operates an extensive program for victims of domestic violence, the Family Violence Prevention Program. This program provides a wide variety of services to victims of domestic violence, dating violence, sexual assault and other related crimes. These services include assistance finding emergency shelter, crisis intervention, assistance with protective orders, advocacy and emergency transportation.18 Finally, the Seminole Nation of Oklahoma, one of the most recent tribes to have their reservation recognized as remaining intact, also has many code provisions that protect the rights of victims, namely victims of domestic violence. The Seminole Nation of Oklahoma has a Domestic Violence Code that provides for prosecutorial consultation with the victim during plea bargaining and allows for the victim to communicate concerns to the court during arraignment.19
It is important to note that although the tribes whose reservations have been recognized all have codes that contain victim’s rights provisions, many other tribes in Oklahoma also have victim’s rights provisions in their codes. This means that regardless of the tribal jurisdiction, it is very likely that there are at least some provisions that address the rights of victims. One of the most interesting tribal codes that contain victim’s rights provisions is the code of the Cheyenne-Arapaho Tribes of Oklahoma. Rather than having a separate section of the code where all victim’s rights provisions are contained, the Cheyenne-Arapaho Tribes have integrated victim’s rights provisions throughout the Criminal Procedure Act. For example, the act requires that the prosecutor and court consider the victim’s views (or the views of the family of a deceased victim) when allowing the defendant to enter into a diversion agreement, at the plea stage and during sentencing.20 The Cheyenne-Arapaho Tribes also have a portion of their code known as the Domestic Abuse and Family Violence Act that provides further protections and rights for victims of domestic violence or family violence crimes.21 Quapaw Nation has similarly included various victim’s rights provisions throughout their Criminal Procedure Code in lieu of a separate victim’s rights section. The Criminal Procedure Code includes requirements that the judge and prosecutor consider the victim’s views (or the views of a close relative of a deceased or incapacitated victim) before allowing the defendant to enter into diversion and at sentencing.22
Many other tribes have instituted laws that protect the rights of victims, especially the rights of victims of crimes, such as domestic violence, dating violence and sexual assault. Tribes with code provisions granting specific protections to victims of these crimes include the Citizen Potawatomi Nation,23 Comanche Nation,24 Iowa Tribe,25 Kickapoo Tribe of Oklahoma,26 Pawnee Nation,27 Sac and Fox Nation28 and Osage Nation.29
A number of the other tribes in Oklahoma not discussed here either do not have a code or a court and instead utilize CFR Courts (also known as Courts of Indian Offenses), which are federally operated courts that serve tribal jurisdictions without courts. These tribes include the Apache Tribe of Oklahoma, Caddo Nation of Oklahoma, Delaware Nation, Eastern Shawnee Tribe of Oklahoma, Fort Sill Apache Tribe of Oklahoma, Kiowa Tribe of Oklahoma, Modoc Tribe, Ottawa Tribe of Oklahoma, Otoe-Missouria Tribe of Indians, Peoria Tribe of Oklahoma, Seneca-Cayuga Nation, Shawnee Tribe and Wichita and Affiliated Tribes. The Law and Order Code for CFR Courts can be found at 25 CFR §11.100. This Law and Order Code provides some basic victim protections, such as the ability to receive restitution30 and obtain a protective order for domestic violence and related crimes.31 Some other tribes, such as the Alabama-Quassarte Tribal Town, Kialegee Tribal Town, Thlopthlocco Tribal Town and Euchee Tribe are under the jurisdiction of another tribe’s court (specifically, the Muscogee Nation).
Many tribes in Oklahoma operate very successful victim’s programs that provide a variety of services. Each program has differing requirements; however, attorneys who provide services to victims would benefit from looking into tribal victim services programs in their areas. Oklahoma Native Alliance Against Violence (NAAV) has a listing of all tribal victim programs in the state, which can be found on their website.32 Overall, tribes in Oklahoma have already been doing substantial work to protect the rights of victims in their jurisdictions. This endeavor has only increased post McGirt. Attorneys and advocates in tribal courts will find that often, many of the protections they can expect victims to receive under state law are also present under tribal laws, particularly in many of the jurisdictions most directly impacted by the post-McGirt cases. Attorneys who are working with victims in tribal courts should familiarize themselves with tribal victim’s rights provisions and services. Tribal codes can often be located on the tribal court’s website. If a tribal code is not easily found online, generally, attorneys can contact the tribal court clerk’s office to find out how to locate it. Even if not required by tribal code, it can be very helpful to victims if the attorney assisting them provides timely notice and reminders of upcoming hearings and makes a plan ahead of time as to where the victim will be the most comfortable sitting prior to and during hearings when the defendant will also be present.
ABOUT THE AUTHOR
Jacintha Webster is an assistant professor of legal studies at East Central University and directs the ECU Native American Legal Clinic. She is admitted to practice law in the state of Oklahoma and numerous tribal jurisdictions. Jacintha served as the 2021 OBA Indian Law Section chair.
- OK Const Art. 2 §34; Marsy’s Law was a constitutional amendment passed in 2018 via State Question 794. The amendment provides specific rights for victims of crime, including the rights of victims to be provided with notice of and be present at all hearings; the right to protection; the right to be heard at any hearing involving release, plea, sentencing, disposition and parole; the right to be notified if a defendant is released; and the right to confer with the prosecutor.
- Bosse v. State, 2021 OK CR 3; Hogner v. State, 2021 OK CR 4; Sizemore v. State, 2021 OK CR 6; Grayson v. State, 2021 OK CR 8.
- 21 Cherokee Nation Tribal Code (CNTC) §143.1.
- 21 CNTC §143.2.
- 21 CNTC §143.3.
- 21 CNTC §142.13.
- One Fire, https://onefire.cherokee.org/services.
- Choctaw Criminal Code §142A.
- Choctaw Criminal Code §142A-2.
- 5 Chickasaw Code §5-301.13.
- Chickasaw Domestic Violence Services, www.chickasaw.net/Services/Domestic-Violence-Services.
- Chickasaw Nation Media Relations Office, “Chickasaw Nation Creates Hotline to Support Victims of Crime” https://bit.ly/3GTZbBs.
- 14 Muscogee Code (MC) 1-106.
- 6 MC §3-306 – 313.
- Family Violence Prevention Program, www.muscogeenation.com/services/family-violence-prevention-program.
- 6A Seminole Nation Code of Laws (SNCOL) §504, 605-608.
- Cheyenne-Arapaho Code, Criminal Procedure Act §425, 427 and 705.
- Cheyenne-Arapaho Code, Domestic Abuse and Family Violence Act §203.
- Criminal Procedure Act, Quapaw Nation Court Code §60, 62 and 98.
- 14 Citizen Potawatomi Nation Code §14-1-105.
- 2 Comanche Nation Tribal Court Code §5.01.
- Iowa Tribe Resolution I-99-92.
- Kickapoo Tribe of Oklahoma Domestic Violence Protection Ordinance §501.
- Pawnee Nation Law and Order Code, Criminal Offenses, Chapter 7 Domestic Abuse Act §12 and 14.
- 13 Sac and Fox Nation Code of Laws §9-05 and 9-409.
- Osage Nation Code §5-412.
- 25 CFR §11.315(b).
- 25 CFR §11.1202.
Oklahoma Bar Journal – OBJ 93 Vol 2 (February 2022)