Tribal DUIs V. State DUIs: DUIs In The Cherokee Nation
With the recent McGirt ruling, there are some specific circumstances that would result in the transfer of your DUI charge from the State court to a tribal court. This can be intimidating because many aren’t quite sure what to expect from a tribal court. Luckily, it isn’t too different from what you’d experience with the State. So, let’s go over everything you need to know about being charged with a DUI by the Cherokee Nation.
When Your Case Becomes Tribal
Your DUI case will be prosecuted by a tribal court if either you or the victim (if there is a victim) is Native, and if the incident occurred on Native land. This applies to the Cherokee Nation, as well as any other federally recognized tribes in the state of Oklahoma whose reservations weren’t disestablished by Congress.
Proving your Native heritage is fairly simple: You must be an enrolled member of a federally recognized tribe at the time of the incident AND have a quantum of Native blood, according to the Supreme Court ruling in McGirt.
If you were not an enrolled Native member at the time of the incident and want your case moved to tribal court, it can be done, however it is very rare and can be costly. You must prove that you “availed yourself of their jurisdiction” utilizing other factors. This means that you lived in a way that would lead you to believe the tribe had jurisdiction over you, rather than the State.
In addition to your enrollment, the crime must have taken place on Native land. This is a very easy element to establish because it encompasses almost all land in the Tulsa, Claremore, and Owasso areas. For example, if you receive a DUI in either Tulsa County or Rogers County, there is a large chance that it occurred on Native land.
The biggest differences between State and tribal courts, Cherokee and otherwise, lies within the bond system. The State courts have had centuries to develop a system that ensures people are given a bond as quickly as possible; if you are arrested on a DUI, you will almost always have a bond within 24 hours. That is not the case in tribal court, as the system is still working out some wrinkles. If you are arrested for a DUI by the tribe on a weekend, you will most likely be held in jail until Monday when their offices open. While all court systems operate on a Monday to Friday basis, the State court has procedural safeguards that ensure you are able to bond out on weekends. However, tribal courts are still in the process of establishing their systems and don’t have procedures in place to ensure you are released on the weekend.
Specifics of the Cherokee Nation DUI Law
The Cherokee Nation DUI law is effectively the same as the State of Oklahoma. Your first DUI is a misdemeanor; if you get a subsequent DUI within 10 years of that original DUI, you can be charged with a felony. Additionally, the Cherokee Nation can use prior DUIs from the State court, or any other court for that matter, to enhance your punishment from a misdemeanor to a felony. This means if you got a DUI prior to the McGirt case in State court, but now have a DUI with the tribe, they can enhance it to a felony.
While predicates are the same in tribal court, the duration of your sentence can be slightly different. Your first DUI carries up to 1 year in jail, just like in State court. However, the Cherokee Nation has a maximum punishment of 3 years in jail for any DUI case.This means if you are charged with DUI with great bodily injury or even a third DUI, the Cherokee Nation’s maximum punishment is lower than the State’s.
Additionally, if you are charged with multiple crimes at once, the Cherokee Nation can run your punishment consecutively, which is similar to the State courts. This means you have to serve time for your crimes one by one, instead of serving sentences simultaneously.) However, tribal courts dictate that your consecutive sentence can only add up to 9 years, regardless of how many individual charges are in your case. This means if you have 5 different counts on a single case, you could technically receive up to 3 years on each count, but that would equal 15 years. The total amount cannot exceed 9 years, therefore you would receive a smaller sentence of 9 years (or less). Please note that if you have multiple cases, the Cherokee Nation could run all of those cases consecutively and surpass that 9 year threshold.
Cherokee Nation Common Plea Offers
Most DUIs end in a plea rather than trial, which means the similarities in tribal and State DUI laws don’t really mean anything if the plea offers are completely different. But in the case of the Cherokee Nation, most plea offers look like the plea offers provided by the State. For your first DUI, you will most likely receive a plea offer of an 18-month deferred sentence. This is a form of probation that ends in an automatic partial expungement.
While on probation, you will be required to obtain a drug and alcohol assessment and take an alcohol and drug substance abuse course (ADSAC). The assessment is a professional evaluation that seeks to identify any substance abuse issues you have. (You must do this assessment, even if it is not directly prescribed in your plea deal. This is because the ADSAC will be required for your probation, and you cannot take the ADSAC without first taking the drug and alcohol assessment.)
The ADSAC is essentially “DUI school.” It will either be a 10 or 24-hour course, depending on your criminal history, the severity of your case, and substance abuse history. You can expect an ADSAC to be included on any plea deal offered by the Cherokee Nation.
In addition, you will most likely be required to participate in a Victim Impact Panel (VIP). This is a one-time event where you will hear stories from victims of DUIs, whether it be a parent whose child was killed in a DUI accident or a defendant who went to prison as a result of a DUI.
Finally, you will have to pay DUI fines. These fines vary based on the specifics of your case, but will most likely be lower for the tribal courts than the fines you see in State courts.
Your Driver's License
Currently, DPS will handle your license suspension even if you’re being prosecuted in tribal court. However, some tribes have been arguing that they should handle the licensing and suspensions for their citizens. While that isn’t law at the moment, it is certainly a possibility for the future and something you should consider.
The Bottom Line
If you have been charged with a tribal DUI, your case will be handled by the Cherokee Nation almost exactly the same as if it had been in State court. However, you may find that it takes you a bit longer to bond out of jail after your initial arrest.