¶1 Rule 1.201 of the Oklahoma Supreme Court Rules provides that "[i]n any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision." Okla. Sup. Ct. Rule 1.201.

¶2 After reviewing the record in this case, THE COURT FINDS that its decision in Milne v. Hudson, 2022 OK 84Milne disposes of the issue raised here.

¶3 IT IS THEREFORE ORDERED that the trial court's order issuing a Final Order of Protection against Appellant Yates is AFFIRMED.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THE 7th day of November 2022.

CONCUR: KANE, V.C.J., AND KAUGER, WINCHESTER, EDMONDSON, COMBS (by separate writing), ROWE AND KUEHN, JJ.

CONCUR IN RESULT: DARBY, C.J. (by separate writing)

CONCUR IN JUDGMENT: GURICH, J. (by separate writing)

¶1 I concur in the Court's judgment, but disapprove of the majority's use of Oklahoma Supreme Court Rule 1.201 to resolve the decision by summary disposition. Appellate decisions by summary disposition should only be utilized in circumstances when the prior controlling appellate decision is dispositive of the appeal. See e.g., McBee v. Fraire, 2022 OK 22505 P.3d 932Milne v. Hudson, 2022 OK 84Milne--one county was completely included within recognized reservations

¶2 I also reiterate my understanding that federal jurisprudence requires a comprehensive understanding of the facts in each case to appropriately evaluate tribal or state jurisdiction when there is no clear preemption. Milne v. Hudson, 2022 OK 84Milne v. Hudson, 2022 OK 84Ibid., ¶ 1, ___ P.3d ___ (Darby, C.J., concurring) (citing Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959); Strate v. A-1 Contractors, 520 U.S. 438, 117 S. Ct 1404, 137 L. Ed. 2d 661 (1997); Montana v. United States, 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981); Fisher v. District Court of Sixteenth Judicial District of Montana, in and for Rosebud County, 424 U.S. 382, 96 S. Ct. 943, 47 L. Ed. 2d 106 (1976)). The majority disregards decades of well-settled precedent in concluding that the Indian/non-Indian and member/nonmember status of a party does not matter with respect to questions of jurisdiction. See Majority Op., ¶ 2 n.1. Obviously these factual distinctions do matter. See Williams, 358 U.S. 217, 222 (Defendant's status as member Indian was significant for recognizing exclusive tribal jurisdiction); Fisher, 424 U.S. 382 (member Indian status of all parties involved was significant to finding tribal court had exclusive jurisdiction); Montana, 450 U.S. 544; (the location and status of persons was significant; the tribe was unable to regulate hunting and fishing of non-Indian persons on non-Indian fee land within reservation borders), Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 100 S. Ct. 2069, 65 L. Ed. 2d 10 (1980) (status as a member or nonmember Indian was significant; state had jurisdiction to tax nonmember Indians in reservations). See also, Duro v. Reina, 495 U.S. 676, 110 S. Ct. 2053 109 L. Ed. 2d 693 (1990) (Indian tribal court did not have inherent criminal jurisdiction over nonmember Indian); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209 (1978) (Indian tribal courts do not have inherent jurisdiction to punish non-Indians.).

¶3 In this case, Justice Gurich's concurring opinion recites the relevant facts available from the record on appeal. As she has already done so, we find it unnecessary to repeat the facts here. Because the state district court's exercise of jurisdiction is not preempted by federal law, and does not infringe on the Chickasaw Nation's right to govern themselves, the district court's exercise of jurisdiction was proper. See Milne v. Hudson, 2022 OK 84

¶1 As with Milne v. Hudson, 2022 OK 84

§ 60.2 Protective order--Petition--Complaint requirement for certain stalking victims--Fees

A. A victim of domestic abuse, a victim of stalking, a victim of harassment, a victim or rape, any adult or emancipated minor household member on behalf of any other family or household member who is a minor or incompetent, or any minor age sixteen (16) or seventeen (17) years [to] seek relief under the provision of the Protection from Domestic Abuse Act.

1. The person seeking relief may file a petition for a protective order with the district court in the county in which the victim resides, the county in which the defendant resides, or the county in which the domestic violence occurred. . . .

22 O.S.Supp.2020, § 60.2

SECTION 5-1201.2 PROTECTIVE ORDER; PETITION

A. The [tribal] Court shall have full civil jurisdiction to issue and enforce Protective Orders involving any person in matters arising in the Indian Country of the Chickasaw Nation or otherwise within the authority of the Court.

B. The following persons may seek relief under the provision of this Section by filing a petition for Protective Order with the Court:

1. any victim of Domestic Abuse who is age sixteen (16) years or older;

2. any victim of Stalking who is age sixteen (16) years or older;

3. any victim of Harassment who is age sixteen (16) years or older; or

4. any adult or emancipated Child who is a Family or Household Member of a victim who is a Child or incompetent, on behalf of such victim.

. . . .

Chickasaw Nation Code § 5-1201.2 (last amended Feb. 22, 2021), https://code.chickasaw.net/Title-05.aspx (emphasis added). Only the location of the offending conduct or the location of one party's residence matters. Where that location can be classified as both state and tribal territory, both courts have jurisdiction--that is, concurrent jurisdiction--to issue a protective order.

¶1 As with my separate writing in Milne v. Hudson, 2022 OK 84

¶2 Robert Lee Yates is an enrolled member of the Caddo Nation of Oklahoma and a resident of the Chickasaw Nation Reservation. On March 16, 2020, Yates was charged with two counts of child sexual abuse in Stephens County District Court, Case No. CF-2020-57. Defense counsel filed a motion to dismiss, alleging the state court lacked jurisdiction because (1) Yates was an Indian; (2) the alleged criminal acts took place within the boundaries of the Chickasaw Nation Reservation;McGirt v. Oklahoma.Milne v. Hudson, we are faced with acts by a non-member Indian which occurred within Indian country, as defined by 18 U.S.C. § 1151.

¶3 As a general rule, state courts lack jurisdiction for acts involving member Indians within Indian country absent an express grant of authority from Congress. See, e.g., Williams v. Lee, 358 U.S. 217, 220-21, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) ("Congress has also acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation. . . . Significantly, when Congress has wished the States to exercise this power it has expressly granted them the jurisdiction which Worcester v. State of Georgia had denied"). When assumption of jurisdiction by the state over reservation transactions serves to undermine the power of tribal courts or infringes on tribal self-governance, it is impermissible. Id. at 223. A state's authority is at its lowest and generally inapplicable when applied to on-reservation conduct of tribal members. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). Whether a state may assert authority over the on-reservation activities of non-members presents a more difficult question. "While under some circumstances a State may exercise concurrent jurisdiction over non-Indians acting on tribal reservations, such authority may be asserted only if not preempted by the operation of federal law." New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983) (internal citation omitted).

¶4 The fundamental questions we must ask in any dispute involving application of state law in Indian country are: (1) whether the exercise of jurisdiction by an Oklahoma state court would infringe on a tribe's right to make its own laws and be ruled by them; and (2) whether the exercise of jurisdiction by a state court is preempted by operation of federal law.Bracker, 448 U.S. at 142-43. These two barriers are independent, and either "standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members." Id. at 143.

¶5 As to the first question, exercise of jurisdiction by the Stephens County District Court in this case would not substantially infringe on the right of the Chickasaw Nation or Caddo Nation to govern themselves. To determine if state law would constitute an infringement on tribal self-governance, courts have utilized a three-part examination--who are the parties involved (Indian, non-Indian, or non-member Indian); where did the civil action arise (Indian country vs. state lands); and what is the subject of the dispute. Chino v. Chino, 90 N.M. 203, 206, 561 P.2d 476, 479 (N.M. 1977) (criteria relevant to the infringement test are: "(1) whether the parties are Indians or non-Indians, (2) whether the cause of action arose within the Indian reservation, and (3) what is the nature of the interest to be protected") (citation omitted).

¶6 Neither Wren nor Yates is a member of the Chickasaw Nation, and the minor child victim is not an Indian child. Under the infringement test, tribal courts ordinarily have exclusive jurisdiction when either: (1) a non-Indian or non-member asserts a claim against an Indian for conduct occurring on that Indian's reservation; or (2) parties to the suit are members of the same Indian tribe and the subject of the action involves conduct occurring on the members' reservation. See Roe v. Doe, 2002 ND 136, ¶ 8, 649 N.W.2d 566, 569 (citing Fisher v. Dist. Ct. of Sixteenth Jud. Dist. of Mont., 424 U.S. 382, 387-89, 96 S.Ct. 943, 947, 47 L.Ed.2d 106 (1976) and Williams, 358 U.S. at 223). Indian tribes also have "exclusive jurisdiction over wholly internal tribal subject matter, such as membership disputes, divorce actions between members domiciled on the reservation, and certain probate actions." Id. The Chickasaw Nation has its own laws and court system designed to protect victims of domestic violence.

¶7 We must also examine whether Oklahoma's exercise of jurisdiction in this case is preempted. In Mescalero Apache Tribe, the Supreme Court noted, "[s]tate jurisdiction is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the State interests at stake are sufficient to justify the assertion of State authority." 462 U.S. at 334. Concepts of sovereignty over a tribe's reservation and members "must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law." Bracker, at 143. Additionally, an express congressional statement of preemption is not required. Id. at 144 (citing Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965)).Milne, to properly evaluate whether state jurisdiction is preempted, I would consider the matter in light of the Enabling Act of 1906, Public Law 280,See Okla. v. Castro-Huerta, ___ U.S. ___, 142 S.Ct. 2486, 213 L.Ed.2d 847 (2022) (Gorsuch, J., dissenting). Yates addressed P.L. 280 in his appellate brief; however, he did not raise it in either his motion to dismiss or during oral argument before the trial judge. Further, Yates did not raise preemption under Bracker in either the trial court of this appeal. Consequently, I am not inclined to examine the preemption issue in this appellate proceeding. See Bane v. Anderson, Bryant & Co., 1989 OK 140786 P.2d 1230