The initial lawsuit, filed last December, accused the prosecutors of improperly filing a total of seven cases involving Native American defendants, violating the precedent set by the McGirt v. Oklahoma decision.

Ballard and Iski represent Craig, Mayes and Rogers Counties, and McIntosh and Okmulgee Counties, respectively. All five fall within the Muscogee and Cherokee reservations.

Earlier this year, the Cherokee, Choctaw and Chickasaw Nations filed motions of support for the DOJ. The Muscogee Nation has filed its own separate lawsuit against the two.

Ballard and Iski’s motions for dismissal argue that the DOJ lawsuit aligns too closely with the City of Tulsa v. O’Brien case and is a collateral attack on the decision.

Currently, under McGirt v. Oklahoma, tribal citizens who commit crimes on their reservations fall under the jurisdiction of the tribe. Under Oklahoma v. Castro-Huerta, non-tribal members who commit crimes on tribal land will fall to the state.

Additionally, a congressional amendment known as the ‘Duro fix’ effectively overturned a 1990 Supreme Court ruling known as Duro v. Reina, and explicitly gave tribes the authority to prosecute any Native American who commits a crime within that reservation.

In post-McGirt Oklahoma, that means the tribes have express jurisdiction.

Despite this, in December, the Oklahoma Criminal Court of Appeals ruled in favor of the state in the City of Tulsa v. O’Brien case, which involved an Osage citizen speeding on Muscogee land.

Ballard and Iski claim because some of the defendants referenced in the lawsuit are Native American but are not members of the tribal nations where the crimes took place, the lawsuit would disrupt the O'Brien ruling and the current application of the law.

Currently, the DOJ has asked for an extension of time to review the motions to accommodate new leadership under the Trump Administration.