When State Officers Become Tribal Officers: The Civil Rights Gap for Indian Country Victims

In the years since the U.S. Supreme Court's landmark McGirt v. Oklahoma decision recognized vast swaths of eastern Oklahoma as Indian Country, law enforcement agencies have scrambled to adapt. One common solution: cross-commissioning agreements, where state and local officers receive tribal authority to enforce laws on reservation land. These agreements solved an immediate jurisdictional problem. But they may have created a new one—a gap in federal civil rights protections that leaves tribal citizens without meaningful recourse when officers violate their constitutional rights.

Two recent federal court decisions in Oklahoma illustrate this troubling new reality. In both cases, judges dismissed Section 1983 civil rights lawsuits against officers who were cross-commissioned by tribes, finding that the officers were acting under tribal authority, not state authority, when the alleged violations occurred. If these rulings stand, they could fundamentally reshape civil rights litigation in Indian Country.

What Is Cross-Commissioning?

Cross-commissioning (sometimes called cross-deputization) is an agreement where one law enforcement agency grants authority to officers from another agency. In the post-McGirt landscape, these agreements typically work in two directions:

State Officers Receiving Tribal Authority

A county sheriff's deputy or city police officer receives a commission from a tribal nation, allowing them to enforce tribal law and exercise authority over tribal citizens within Indian Country.

Tribal Officers Receiving State Authority

Tribal Lighthorse (police) officers receive commissions from state or local agencies, allowing them to enforce state law and exercise authority over non-Indians within reservation boundaries.

These agreements address the jurisdictional complexities created by McGirt, which held that the Muscogee (Creek) Reservation—and subsequently other Oklahoma reservations—had never been disestablished. Under federal law, states generally lack criminal jurisdiction over crimes involving Indians in Indian Country. Cross-commissioning bridges that gap.

The Problem: Section 1983 Requires "State Action"

Section 1983 of the federal civil rights laws (42 U.S.C. § 1983) provides a remedy for constitutional violations committed by persons acting "under color of" state law:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured..."

The critical phrase is "under color of... any State." Section 1983 applies only to state actors—not federal actors, not private parties, and not tribal actors.

Federal courts have consistently held that tribal governments are not subject to Section 1983 because tribes are separate sovereigns, not arms of the state. This was established in cases like R.J. Williams Co. v. Fort Belknap Housing Authority (1983) and Burrell v. Armijo (10th Cir. 2006).

The question these new Oklahoma cases raise is this: When a state officer who is cross-commissioned by a tribe acts in Indian Country, are they acting under state law or tribal law?

Walden v. City of Duncan: The Case Now on Appeal

The Facts

Joshua Walden, a citizen of the Choctaw Nation, was arrested on December 30, 2022, by Duncan Police Department officer Christian Archer. According to Walden's complaint, he was stopped for alleged possession of a firearm while intoxicated. Walden claimed he passed a field sobriety test, was never offered a breathalyzer, and that Officer Archer "executed a false affidavit" claiming visible intoxication after Walden refused a blood test. Walden was held in Stephens County Jail for five days.

In November 2023, Walden sued Archer and the City of Duncan under Section 1983, alleging violations of his Fourth Amendment rights.

The Dismissal

The City and Officer Archer argued that because Archer was cross-commissioned by the Chickasaw Nation, he was acting under tribal authority—not state authority—when he arrested Walden, a tribal citizen, in Indian Country.

On September 22, 2025, Judge Patrick Wyrick agreed and dismissed the case:

"The court finds that Archer was incapable of wielding the power of state law against Walden. Archer's authority over Walden flowed from a grant from the Chickasaw Nation."

Wyrick went further, noting he could find "no case law that stands for the proposition that an officer is capable of acting under state law and tribal law simultaneously."

The Appeal

On October 1, 2025, Walden filed an appeal to the Tenth Circuit Court of Appeals. This appeal could be the first circuit-level ruling on whether cross-commissioned officers can shield themselves from Section 1983 liability by claiming tribal authority.

Barrick v. Kasbaum: A Fatal Encounter

The Facts

On March 13, 2022, Bobby Barrick—whose truck had become stuck in mud—was later found in apparent mental distress at a closed corner store in Eagletown (within the Choctaw Nation reservation). Witnesses reported he ran through a glass door, jumped onto a car, and made statements about people trying to kill him. Bystanders restrained him before deputies arrived.

McCurtain County Deputies Matthew Kasbaum and Quentin Lee, along with Oklahoma Game Warden Mark Hannah, responded to the scene. According to the lawsuit filed by Barrick's widow, the officers used stun guns on Barrick four times, struck him with a baton, and used dangerous restraint techniques. Bobby Barrick later died at a hospital in Paris, Texas.

The Dismissal

On September 29, 2025, Judge John Heil III dismissed the Section 1983 claims. Like Judge Wyrick, he found that because the officers were cross-commissioned by the Choctaw Nation, they were acting under tribal—not state—authority:

"Regardless of whether defendants maintained state law authority, defendants, in arresting an Indian in Indian Country, were operating under tribal law. Under these undisputed facts, the court concurs that tribal law took precedence."

As of this writing, no appeal has been filed in the Barrick case.

The Legal Theory: Why This Matters

These rulings create a troubling framework: any time a cross-commissioned officer interacts with a tribal citizen in Indian Country, the officer may claim they were acting under tribal authority—and therefore immune from Section 1983.

This is not just a technical jurisdictional issue. It has real consequences for victims:

No Federal Remedy

Section 1983 is the primary vehicle for civil rights lawsuits against law enforcement. Without it, victims cannot bring constitutional claims in federal court.

Tribal Sovereign Immunity

Tribes themselves are generally immune from suit. While tribal officers acting in their official capacity may not share that immunity in all circumstances, tribal courts have limited civil jurisdiction over non-Indians and may not provide the same procedural protections as federal courts.

Limited ICRA Remedies

The Indian Civil Rights Act (25 U.S.C. § 1301 et seq.) imposes constitutional-like protections on tribal governments, but unlike Section 1983, there is no private right of action for money damages under ICRA (Santa Clara Pueblo v. Martinez, 1978). The only federal remedy is habeas corpus—useless for victims of excessive force who aren't in custody.

What Remedies Remain?

If Section 1983 is unavailable, victims of officer misconduct in Indian Country are not entirely without options—but the paths are narrower.

1. Tribal Court Claims

Tribal citizens can file claims in tribal court under tribal law and the ICRA. However:

• Tribal courts have varying procedures and resources
• Recoverable damages may be limited
• Some tribal courts may not have civil jurisdiction over non-member officers

2. State Tort Claims

Victims may still file state law tort claims (assault, battery, wrongful death, negligence) in Oklahoma state court. However:

• The Oklahoma Governmental Tort Claims Act (GTCA) limits recovery against government entities
• Individual officers may assert qualified immunity
• Venue and jurisdictional issues may be complex

3. 10th Circuit Reversal

The Walden appeal could produce circuit-level guidance. If the Tenth Circuit reverses and holds that cross-commissioned officers retain state authority for Section 1983 purposes, it would reopen federal civil rights litigation in Indian Country.

4. Supervisory and Municipal Liability

Even if individual officers escape liability, claims may survive against supervisory officials or municipalities for policies, training failures, or customs that contributed to the violation—though these claims are difficult to prove.

The Unanswered Questions

These cases leave significant legal questions unresolved:

Can Officers Act Under Both Authorities Simultaneously?

Judge Wyrick found "no case law" supporting simultaneous state and tribal authority. But is that right? An officer wearing a city uniform, driving a city car, and responding to a city dispatch call seems to be acting under state authority—regardless of an additional tribal commission.

What About Non-Indian Victims?

If a cross-commissioned officer violates the rights of a non-Indian in Indian Country, does the same logic apply? Or does the state authority "take precedence" when the victim is not a tribal citizen?

Cherokee Freedmen and Blood Quantum

There's an additional wrinkle: federal courts use both tribal citizenship and Indian blood quantum to determine "Indian status" for criminal jurisdiction purposes. But for civil purposes, tribal citizenship alone often suffices. Would a Cherokee Freedman—a tribal citizen without Indian blood—be able to sue under Section 1983? These cases don't answer that question.

Practical Guidance for Potential Victims

If you or a family member believes your civil rights were violated by an officer in Indian Country:

1. Document Everything Immediately

Preserve photos, video, medical records, witness information, and any communications with law enforcement. This evidence is critical regardless of which court hears the case.

2. Determine Jurisdictional Status

• Were you in Indian Country?
• Are you a tribal citizen?
• Was the officer cross-commissioned?
• Was the officer acting in an official capacity?

These answers affect where and how you can sue.

3. File Complaints with Multiple Agencies

Report the incident to:

• The tribal police department
• The state/local agency that employs the officer
• The tribal government
• The Oklahoma Attorney General

This creates a paper trail and may trigger internal investigations.

4. Consult an Attorney with Tribal Law Experience

These cases involve overlapping state, federal, and tribal jurisdiction. An attorney who understands federal Indian law and civil rights litigation is essential to navigate the options.

5. Act Quickly

Statutes of limitations vary. The Oklahoma GTCA requires notice within one year for state tort claims. Federal Section 1983 claims generally have a two-year limit. Tribal law may have different deadlines. Don't wait.

Frequently Asked Questions

If I can't sue under Section 1983, can I sue at all?

Yes, potentially. State tort claims (assault, battery, wrongful death) may still be available. Tribal court claims may also be an option. But the federal remedy specifically designed for constitutional violations—Section 1983—may be unavailable if these rulings stand.

Does this only affect tribal citizens?

For now, yes. The reasoning in these cases focuses on the officer's authority over tribal citizens in Indian Country. Whether the same logic applies to non-Indians remains unclear.

What happens if the 10th Circuit reverses?

If the Tenth Circuit finds that cross-commissioned officers retain state authority for Section 1983 purposes, it would reopen the door to federal civil rights litigation. The Walden appeal is worth watching.

Can I sue the tribe itself for the officer's conduct?

Generally no. Tribes possess sovereign immunity and cannot be sued without their consent. Some tribes have waived immunity in limited circumstances, but this varies.

Are all cross-commissioned officers immune from Section 1983?

Not necessarily. These rulings are district court decisions, not binding circuit precedent. Other judges may reach different conclusions. And officers acting outside Indian Country or interacting with non-Indians may still be subject to Section 1983.

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The post-McGirt era has transformed law enforcement in Oklahoma. Cross-commissioning solved one problem—the jurisdictional gaps created by reservation recognition—but these cases reveal it may have created another. For tribal citizens alleging civil rights violations, the path to justice just became more uncertain.

At Addison Law, we represent clients in civil rights cases and tribal law matters throughout Oklahoma. We understand the complex jurisdictional landscape and can help you evaluate your options when officers violate your rights—whether the remedy lies in federal, state, or tribal court.

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This article is for general information only and is not legal advice.