Milne v. Hudson
| Citation | 2022 OK 84 |
| Decision Date | 25 October 2022 |
| Docket Number | 119498 |
| Parties | MILNE v. HUDSON |
| Court | Supreme Court of Oklahoma |
UNPUBLISHED OPINION
Appeal from the District Court of McIntosh County Honorable Brendon Bridges, Trial Judge
Heather Cook, Norman, Oklahoma, Heather Cook P.L.L.C., for Defendant/Appellant;
No appearance for Plaintiff/Appellee.
¶0 Plaintiff/Appellee Milne applied for a civil protection order against Defendant/Appellant Hudson in the District Court of McIntosh County. Hudson objected, claiming that the district court had no jurisdiction to enter the order. Hudson argued that because McIntosh County is within the boundaries of the Muscogee Reservation, Milne is a member of the Muscogee Nation, and Hudson is a member of the Cherokee Nation, the McIntosh District Court had no jurisdiction to enter a civil protective order against him. The trial court denied the objection and entered the civil protection order. We affirm the trial court's decision.
¶1 Appellee Andrea Sue Milne dated Appellant Howard Hudson. During an argument, Hudson became violent with Milne. Milne applied to the District Court of McIntosh County for a civil protection order, as the couple dated in in Eufaula Oklahoma. She stated in her application, and testified at a hearing, that Hudson first attacked her in a car, slamming her head into the dashboard. When they got to her house, he hit her and threw her across her yard. Finally, he pushed his way into her house, grabbed some of his belongings, and struck her in front of her children. When the children came to her aid, he absconded, but returned later and threatened to burn the house down. Milne testified that after the afternoon of violent acts, he stalked her at home, around town, and at her workplace. This application and testimony though not tested by investigation or cross-examination, were certainly enough to justify an order of protection.
¶2 It is in this context that we approach the narrow issue presented: did the District Court of McIntosh County have jurisdiction to issue a civil protection order?
¶3 It is important to emphasize what this case is not about. We are not concerned with the enforcement of an existing protection order. We are also not concerned with any possibility of Hudson's criminal prosecution based on Milne's allegations. We focus only on whether a state district court has jurisdiction to issue a civil order protecting an Oklahoma citizen from violence, at the citizen's request, where both parties are also citizens of sovereign Indian Nations and the violent acts occurred within the boundaries of both the State of Oklahoma and the Muscogee Nation.
¶4 Milne filed a petition for civil protection order against Hudson with the Court Clerk of McIntosh County on October 21, 2020. The District Court issued an emergency protection order, and then, after a hearing, issued an interim order of protection and continued the evidentiary hearing to March 15, 2021. Prior to the evidentiary hearing, Hudson filed a motion to dismiss for lack of jurisdiction. The trial court heard argument on this motion, orally denied it, and filed a written order denying the motion. On March 15, the trial court also issued a final order of protection to remain in effect for five years from the date of issue. Hudson timely filed this Petition in Error, and this Court retained the appeal. Hudson filed a brief in support of his appeal on December 14, 2021. Despite direction from this Court, Milne did not file a brief in response, and the case was submitted for consideration based on the filings submitted by Hudson.
¶5 While this case involves a civil protection order, the issue is whether the district court had jurisdiction. This is a question of law, reviewed de novo; we conduct "a plenary, independent, and non-deferential examination of the trial court's rulings of law." Sheffer v. Buffalo Run Casino, PTE, Inc., 2013 OK 77, ¶ 3, 315 P.3d 359, 361; see also Mustang Production Co. v. Harrison, 94 F.3d 1382, 1384 (10th Cir. 1996) ().
¶6 Hudson argues the outcome of this case is determined by the decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). He is mistaken. While that decision sets the stage for our analysis, its outcome is not controlling. Its holding -- that the State cannot prosecute a crime committed by a tribal citizen, against a tribal citizen, in Indian Country -- cannot control the analysis or outcome of the civil-law issues raised in this case.
¶7 However, in McGirt, the United States Supreme Court held that the Muscogee Nation reservation was never disestablished and continues to be Indian Country. McGirt, 140 S.Ct. at 2468. With that finding, activity supporting the protection order in this case occurred in Indian Country; neither party disputed this fact below, and the trial court accepted it when considering the jurisdictional question. Our analysis thus focuses on the issue of civil jurisdiction in Indian Country. And we do not undertake this analysis in a vacuum. Decades of settled law, both state and federal, inform our decision. McGirt expanded the popular understanding of the extent of Indian Country in Oklahoma. This necessarily expands the law we may consider and apply in cases raising Indian Country issues. But McGirt did not itself change the applicable civil law.
¶8 First, we address the trial court's findings. The trial court relied on a portion of the Indian Civil Rights Act of 1968, 25 U.S.C § 1304(b)(2), to deny Appellant's motion -- understandably, since the parties referred to that statute.[1] At first glance, Section 1304(b)(2) appears to govern here, because it explicitly provides for the possibility of concurrent jurisdiction in domestic violence cases among tribal, state and federal courts under certain circumstances.[2] However, Section 1304 provides for tribal criminal jurisdiction over domestic and dating violence. In the protective order context, Section 1304 is restricted to enforcement. It explicitly grants tribal courts authority to exercise criminal jurisdiction over violations of existing civil or criminal protection orders. 25 U.S.C. §§ 1304(a)(5), 1304(c)(2).
¶9 In relying on this statute, the trial court put the cart before the horse. The question was whether the trial court could issue a civil protection order at all. It is clear from Section 1304(b)(2) that, after an order is issued, the state district court would have had authority to enforce it. But Section 1304 does not address under what circumstances any sovereign court may issue such an order.
¶10 Hudson primarily argues that the tribal court had jurisdiction to issue a protection order against him. We agree. Federal law clearly gives tribal courts full civil jurisdiction to issue and enforce protection orders involving any person. However, that does not resolve the issue before this Court. Hudson claims that only a tribal court could have exercised jurisdiction over him to issue a protection order. This is not the case.
¶11 Generally speaking, and depending on the Indian status of the parties, Indian tribes have civil jurisdiction over cases occurring within Indian Country. It is well established that the federal statutory definition of Indian Country in 18 U.S.C. § 1151 applies in both civil and criminal contexts. See Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 527 (1998); DeCoteau v District County Court for Tenth Judicial Dist., 420 U.S 425, 427 n.2 (1975); Mustang, 94 F.3d at 1385.
¶12 However, this jurisdiction is not necessarily exclusive. The United States Supreme Court has observed that an "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." Montana v. U.S., 450 U.S. 544, 564 (1981). Montana was concerned with the extension of a tribe's authority over non-tribal citizens and discussed the limited nature of tribal sovereign authority in that context. Tribes may regulate the activities of nonmembers who enter consensual relationships "through commercial dealing, contracts, leases, or other arrangements" with the tribe or tribal members. Montana, 450 U.S. at 565; United States v. Cooley, 141 S.Ct. 1638, 1642-43 (2021). And tribes may exercise civil authority over the conduct of non-Indians when the "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Montana, 405 U.S. at 565; Cooley, 141 S.Ct. at 1642-43. Where a reservation lies within state boundaries, that fact does not automatically exclude all state regulatory authority; "an Indian reservation is considered part of the territory of the State." Nevada v. Hicks, 533 U.S. 353, 361-62 (2001) ().
¶13 We recognize that the Montana test refers to tribal authority over non-Indians. However, in Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority, this Court applied a very similar test to the question of state jurisdiction over disputes where both parties are Indian. Lewis v. Sac and Fox Tribe of Oklahoma Housing Authority, 1994 OK 20, 896 P.2d 503 cert. denied, 516 U.S. 975 (1995). There, the Sac and Fox Housing Authority entered into an agreement with Indian buyers to convey a fee simple estate,...
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