Law & Principles

Public-safety reality contradicts tribal claims

July 3, 2023

Ray Carter

After a federal court ruled that city police within historic tribal reservations in Oklahoma cannot enforce local ordinances, such as speed limits, when the violator is an American Indian, tribal officials have downplayed the decision, saying tribal law enforcement who are cross-deputized by cities like Tulsa can handle the workload.

But the manpower of tribal police forces, and the tribes’ own calls for federal bailouts, suggest the tribes cannot handle much of that responsibility.

In February, Mvskoke Media reported that the Muscogee (Creek) Nation, whose historic reservation area includes most of Tulsa, had only 65 tribal officers covering the 11-county area included in its historic reservation boundaries.

That’s only a fraction of the police force maintained by Tulsa alone, let alone the combined police forces of all municipalities within all counties within the Muscogee (Creek) Nation’s historic reservation. The Tulsa Police Department has three uniform divisions focusing on three geographical areas. Each division is staffed with one major, four captains, 12 lieutenants, 13 to 15 sergeants, 125-plus officers, and two civilians, for a combined total of at least 465 officers.

The lack of manpower is a looming issue in eastern Oklahoma, where state and local officials have limited or no authority over criminals who have a Certificate of Degree of Indian Blood (CDIB) card proving he or she is descended from a Native American.

In a 2020 decision in McGirt v. Oklahoma, the U.S. Supreme Court held that the Muscogee (Creek) Nation reservation was never formally disestablished for purposes of the federal Major Crimes Act. That decision has since been expanded to include the reservations of the Choctaw, Chickasaw, Cherokee, Seminole, and Quapaw, covering roughly 42 percent of Oklahoma.

The McGirt ruling applied only to major crimes, but has now been expanded to include local ordinances through a ruling by the U.S. Court of Appeals for the 10th Circuit in Justin Hooper v. City of Tulsa. The court sided with Hooper, who argued that Tulsa police could not issue him a speeding ticket because he is a member of the Choctaw Nation and Tulsa lies within the historic reservation boundaries of the Muscogee (Creek) Nation.

In many instances, tribes have proven largely incapable of handling the law enforcement duties previously handled by state and local police.

In February 2022, Hughes County Sheriff Marcia Maxwell reported her office was ending its cross-deputization agreement with the Muscogee (Creek) Nation Lighthorse Police. In a public letter, Hughes said the Muscogee (Creek) Nation had required her office to perform nearly all law-enforcement duties (and carry nearly all associated costs) of any joint activity, and that any individual arrested and turned over to the Muscogee (Creek) court system was “rarely prosecuted and very rarely spends any time in jail.”

Hughes wrote that her office was “unable to accommodate the requirements the MCN has put forth on our officers regarding their calls for service. Deputies are required to go to the scene, make the arrest, provide all the paperwork required for the tribal court, as well provide supporting documents of tribal citizenship and transporting the arrestee to another county for incarceration.”

Tribal officials have also tacitly indicated that they cannot handle all public-safety duties in McGirt areas.

In the March 2022 edition of the Oklahoma Bar Journal, Chrissi Ross Nimmo, deputy attorney general for the Cherokee Nation, bluntly acknowledged, “The Cherokee Nation does not own or operate any adult or juvenile detention facilities.”

At a July 2021 meeting of the Inter-Tribal Council of the Five Civilized Tribes, an organization involving the Cherokee, Choctaw, Chickasaw, and Muscogee tribes, tribal leaders passed a resolution noting that the historic reservations of the Cherokee, Choctaw, Chickasaw, Muscogee and Seminole tribes “span 32,000 square miles,” and said the nearly $80 million for “law enforcement activities related to McGirt” contained in President Joe Biden’s proposed budget is only a “first step” and those increases “alone, are not sufficient.”

In an amicus curiae brief filed with the U.S. Supreme Court in October 2021, the Cherokee Nation declared that the impacted tribal nations “need more resources.”

Oklahoma members of Congress have also warned that tribes cannot handle their public-safety responsibilities.

In a January 2022 letter sent to congressional appropriations leaders by four members of Oklahoma’s congressional delegation—U.S. Reps. Tom Cole, Frank Lucas, Markwayne Mullin, and Stephanie Bice—the four lawmakers warned that there was “a severe shortage of police and investigative personnel in tribal jurisdiction areas, which in turn has drastically increased federal and tribal law enforcement responsibilities. It has been over a year since the decision has passed, and it is effectively bankrupting the affected tribes in Oklahoma.”

The congressional letter then requested that an additional $308 million be provided to the federal Bureau of Indian Affairs “for tribal justice needs in Oklahoma.” Congress eventually provided the tribes $62 million of the requested $308 million.

Following the Hooper decision, Muscogee (Creek) Nation Principal Chief David Hill said, “There is no law that Tulsa PD cannot enforce,” pointing to cross-deputization agreements between the Muscogee (Creek) Nation and the city of Tulsa.

But other tribal officials have indicated American Indian citizens in areas like Tulsa may only be arrested for violations of tribal law, and if tribal law and local ordinances are not exact duplicates, then a non-Indian may be fined for a violation while an American Indian who breaks the same city ordinance cannot be fined.

In her Oklahoma Bar Journal article, Nimmo wrote, “After McGirt, traffic citations issued to Indian defendants on the reservations of the Five Tribes by state officers (namely county sheriff deputies and the Oklahoma Highway Patrol) could, arguably, now only address violations of the law of the tribe on whose reservation the offense took place if the law enforcement agency has a cross-deputization agreement with the tribe allowing the state officers to enforce tribal law. This is also true for traffic citations and misdemeanor ordinance violations issued by cities and towns, which are now also unenforceable against Indian defendants unless a city or town has entered into a cross-deputization agreement with the applicable tribe.”

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