United States of America v. Iski

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, )
)
Plaintiff, ) Case No. 24-CV-0493-CVE
) (BASE FILE)
and )
) Consolidated with:
CHEROKEE NATION, and ) Case No. 25-CV-0028-CVE
CHOCTAW NATION OF OKLAHOMA, )
)
Intervenor Plaintiffs, )
)
and )
)
MUSCOGEE (CREEK) NATION, )
)
Consolidated Plaintiff, )
)
v. )
)
CAROL ISKI, )
)
Defendant. )
OPINION AND ORDER
Now before the Court is defendant’s motion to stay and brief in support (Dkt. # 115).
Defendant Carol Iski asks the Court to stay this case pending a ruling from the Tenth Circuit Court
of Appeals in another case concerning the state of Oklahoma’s prosecutorial authority in Indian
country. Dkt. # 115. The United States of America and the intervenor plaintiffs have filed separate
responses (Dkt. ## 118, 119, 120) opposing defendant’s request to stay this case, and they argue that
they will be substantially harmed if the Court delays a ruling on the merits of their claims.
Defendant has filed a reply (Dkt. # 121).
Iski is the District Attorney for the Twenty-Fifth Prosecutorial District of Oklahoma and,
beginning in 2023, Iski began prosecuting Indians for alleged criminal activity taking place within
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the historical boundaries of the Muscogee (Creek) Nation (Creek Nation) reservation. Dkt. # 2, at
11-12. The defendants named in the criminal prosecutions were members of the Cherokee and
Choctaw Nations. Id. The United States of America filed this case seeking declaratory and
injunctive relief prohibiting Iski from prosecuting any Indian for criminal conduct occurring in
Indian country. Id. at 14. The Cherokee and Choctow Nations requested and received leave to
intervene as plaintiffs. The Creek Nation filed a separate lawsuit to prohibit Iski from prosecuting
Indians within the boundaries of its reservation, because the Twenty-Fifth Prosecutorial District of
Oklahoma includes portions of the Creek Reservation and Iski’s conduct poses a substantial risk of
the harm to the sovereignty of the Creek Nation. Muscogee (Creek) Nation v. Carol Iski, 25-CV-28-
CVE (E.D. Okla. Jan 28, 2025). The Court consolidated these cases, and all of the plaintiffs have
filed motions for a preliminary injunction to prevent Iski from attempting to exercise criminal
jurisdiction over any Indian in Indian country. Iski filed a motion to dismiss all pending claims
based on various prudential and abstention doctrines, but the Court denied the motion in all respects.
Dkt. # 106.
In a separate lawsuit, the Creek Nation sued the Tulsa County District Attorney, Steve
Kunzweiler, for asserting criminal jurisdiction over Indians who allegedly committed crimes within
the boundaries of the Creek reservation but who were not members of the Creek Nation.1 Muscogee
(Creek) Nation v. Kunzweiler, 2025 WL 3124450 (N.D. Okla. Nov. 7, 2025) (Kunzweiler). That
1 Iski claims that she has brought criminal charges against “non-member Indians” only, by
which she means that the person is not a member of the tribe on the reservation of which the
alleged criminal conduct occurred. For example, a citizen of the Chickasaw Nation who
allegedly commits a crime on Cherokee Nation is not a member of tribe which could assert
criminal jurisdiction over him, and Iski would refer to the Chickasaw citizen as a non-
member Indian.
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court determined that the state of Oklahoma could exercise concurrent criminal jurisdiction over
non-member Indians accused of committing crimes not covered by the Major Crimes Act, 18 U.S.C.
§ 1151 (MCA). The case is currently on appeal to the Tenth Circuit, and a review of the appellate
docket sheet shows that briefing has not been completed. In another pending case, a federal district
court issued a preliminary injunction prohibiting the city of Henryetta, Oklahoma from enforcing
municipal criminal laws against all Indians, even if the Indian is not a member of the Creek Nation.
Muscogee (Creek) Nation v. City of Henryetta, Oklahoma, 2026 WL 1336060 (E.D. Okla. May 13,
2026). The city of Henryetta resides entirely within the historical boundaries of the Creek
Reservation, but the city took the position that it could prosecute non-member Indians under munipal
law. Id. at *5. The court rejected the city’s arguments based on decisions of the Oklahoma Court
of Criminal Appeals and Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022), and found that long-
standing federal law prior to McGirt v. Oklahoma, 591 U.S. 894 (2020), established that the city had
no criminal jurisdiction over any Indian. Id. at *16.
Defendant asks the Court to stay this case pending a ruling by the Tenth Circuit in
Kunzweiler, and plaintiffs oppose defendant’s request for a stay. In Landis v. North American Co.,
299 U.S. 248 (1936), the Supreme Court held that “the power to stay proceedings is incidental to the
power inherent in every court to control the disposition of the causes on its docket . . .” but:
[t]he exertion of this power calls for the exercise of a sound discretion. Where it is
proposed that a pending proceeding be stayed, the competing interests which will be
affected by the granting or refusal to grant a stay must be weighed. Among these
competing interests are the possible damage which may result from the granting of
a stay, the hardship or inequity which a party may suffer in being required to go
forward, and the orderly course of justice measured in terms of the simplifying or
complicating of issues, proof, and questions of law which could be expected to result
from a stay.
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Id. at 254-55. Applying Landis, courts have recognized that “a trial court may, with propriety, find
it is efficient for its own docket and the fairest course for the parties to enter a stay of an action
before it, pending resolution of independent proceedings which bear upon the case. This rule applies
whether the separate proceedings are judicial, administrative, or arbitral in character, and does not
require that the issues in such proceedings are necessarily controlling of the action before the court.
. . . In such cases the court may order a stay of the action pursuant to its power to control its docket
and calendar and to provide for a just determination of the cases pending before it.” Leyva v.
Certified Grocers of California, Ltd., 593 F.2d 857, 864 (9th Cir. 1979).
However, “[a] stay is not a matter of right, even if irreparable injury might otherwise result.”
Indiana State Police Pension Trust v. Chrysler LLC, 129 S. Ct. 2275, 2276 (2009). “It is instead an
exercise of judicial discretion, and the ‘party requesting a stay bears the burden of showing that the
circumstances justify an exercise of that discretion.’” Id. “The propriety of a stay is dependent upon
the circumstances of the particular case, and the traditional stay factors contemplate individualized
judgments in each case.” Id. at 2277 (internal quotations omitted). Landis dictates that courts
making such judgments take into account hardship to the parties, as well as the “orderly course of
justice.” 299 U.S. at 244-45. And the Tenth Circuit has instructed courts to consider the following
factors before granting a stay: “whether the [moving party is] likely to prevail in the related
proceeding; whether, absent a stay, the [moving party] will suffer irreparable harm; whether the
issuance of a stay will cause substantial harm to the other parties to the proceeding; and the public
interests at stake.” United Steelworkers of Am. v. Oregon Steel Mills, Inc., 322 F.3d 1222, 1227
(10th Cir. 2003).
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The parties devote most of their briefing to the issue of whether defendant is likely to prevail
before the Tenth Circuit in Kunzweiler, and correspondingly which party is likely to prevail in this
case. See Dkt. # 115, at 5-6; Dkt. # 118, at 6-10; Dkt. # 119, at 4-7; Dkt. # 120, at 2-4. However,
the Court declines to consider the relative merits of the parties’ competing position, and finds that
the existence of substantial arguments in favor of both parties weighs strongly in favor of staying this
case pending a ruling from the Tenth Circuit. As the Court has already noted, federal courts
considering similar issues have come to different conclusions concerning the state of Oklahoma’s
criminal authority over non-member Indians in Indian county, and the issue is currently pending
before the Tenth Circuit. The Court notes that plaintiffs have raised a broader issue than simply the
state of Oklahoma’s authority to exercise concurrent criminal jurisdiction over non-member Indians,
but a ruling by the Tenth Circuit on this issue would resolve a key issue in this case and would
provide significant guidance for the broader issue raised by plaintiffs.2 The Court finds that judicial
economy strongly favors staying this case pending a ruling by the Tenth Circuit in Kunzweiler.
Defendant argues that she will be harmed if she is required “from continuing to defend this
related action over the exact same legal issue after already prevailing once in [Kunzweiler].” Dkt.
# 115, at 6. Plaintiffs correctly point out that Iski is not a party in the Kunzweiler case and she has
2 Defendant repeatedly attempts to characterize the issue raised by plaintiffs as whether the
state has concurrent criminal jurisdiction over crimes committed by non-member Indians in
Indian county as long as the crimes are not covered by the MCA. Plaintiffs have rejected
defendant’s formulation of the issues raised in their complaints, and they have clarified that
they are seeking a declaratory judgment that the state of Oklahoma lacks criminal jurisdiction
over all Indians in Indian country for all crimes, whether or not the crimes fall within the
scope of the MCA. Dkt. # 118, at 5-6 n.2; Dkt. # 119, at 5 n.2; Dkt. # 120, at 2. Defendant
is advised to refrain from re-stating the scope of plaintiffs’ claims, and plaintiffs are not
required to accept defendant’s assertion that she will limit prosecution to non-member
Indians who have committed crimes not falling within the scope of the MCA.
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not been required to litigate these issues in any other forum. Dkt. # 118, at 11; Dkt. # 119, at 6. Iski
has not shown that denying her request for a stay will subject her to duplicative litigation, as she was
not a party in Kunzweiler and she is not engaged in any other litigation concerning the subject matter
of plaintiffs’ claims. Defendant also argues that proceeding to a resolution in this case could lead
to inconsistent results and confusion if this Court rules that Iski lacks the authority to prosecute non-
member Indians. Dkt. # 115, at 6. The Court notes that there are already inconsistent rulings on the
jurisdictional issues central to plaintiffs’ claims, and a ruling by this Court would not increase any
“confusion” concerning the state of Oklahoma’s authority to prosecute Indians for crimes committed
in Indian country. Defendant has not shown that she will be harmed by the continuation of this
litigation, let alone that she would suffer irreparable harm.
Plaintiffs argue that they will suffer substantial injuries should the Court stay this case until
the Tenth Circuit rules in Kunzweiler. The tribal nations argue that granting a motion to stay would
effectively constitute the denial of their motion for a preliminary injunction, and they contend
granting a stay would undermine tribal authority on Indian lands. Dkt. # 118, at 13-14; Dkt. # 120,
at 6-7. The United States argues that it will suffer substantial harm every day that the Court fails to
enjoin defendant from prosecuting Indians in Indian country. Dkt. # 119, at 13. The Court finds that
plaintiffs’ claims of harm are speculative and do not weigh against granting defendant’s motion to
stay. The Court does not discount the effect of defendant’s conduct on the sovereignty of the United
States and tribal nations, but a delay in ruling on the motion for preliminary injunction is not the
functional equivalent of denying plaintiffs’ motions for preliminary injunction. However, the threat
of potential intrusions on plaintiffs’ governmental sovereignty does not warrant the Court providing
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what would essentially be an advisory ruling on plaintiffs’ claims when a central issue in this case
is already pending before the Tenth Circuit.
Considering all of the factors, the Court finds that this case should be stayed pending a ruling
by the Tenth Circuit in Kunzweiler. The Court agrees with plaintiffs that the issue raised in
Kunzweiler is narrower than the issue raised by plaintiffs in this case, but the decision in Kunzweiler
will almost certainly resolve substantial aspects of plaintiffs’ claims in this case. Courts have come
to different conclusions about the state of Oklahoma’s prosecutorial authority in Indian country, and
it would make little sense for this Court to rule on the merits of plaintiffs’ claims when the Tenth
Circuit is considering a case that will dispose of key parts of this case. Neither plaintiffs nor
defendant have shown that they will suffer any substantial injury if the case is stayed, and the relative
harms to the parties does not weigh for or against a stay. Defendant is advised that bringing new
prosecutions against Indians in Indian country could cause the Court to reconsider its ruling on
defendant’s motion to stay, because this could constitute substantial harm justifying proceeding with
the case even if Kunzweiler had not been decided by the Tenth Circuit.
IT IS THEREFORE ORDERED that defendant’s motion to stay and brief in support (Dkt.
# 115) is granted.
IT IS FURTHER ORDERED that, pursuant to LCvR 41.1, this matter is administratively
closed pending either an order of the Court reopening the action, or until this case is dismissed with
prejudice by stipulation of the parties.
DATED this 3rd day of June, 2026.
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