Law & Principles

Record contradicts tribe’s public-safety claim

June 29, 2023

Ray Carter

After the U.S. Court of Appeals for the 10th Circuit ruled that American Indians are exempt from local enforcement of speeding laws and other municipal regulations in areas lying within some Oklahoma tribes’ historic reservation lines—including most of Tulsa—one tribal leader suggested there will be little impact on public safety.

But the solution offered by that official—cross-deputization of tribal and local police—has already failed to address existing problems in historic reservation areas in Oklahoma.

This week, the 10th Circuit ruled that Tulsa police cannot enforce local laws when the perpetrator is Native American. The case centered on Justin Hooper, who was issued a $150 traffic citation by the City of Tulsa on Aug. 13, 2018. Despite initially paying the fine, Hooper later claimed he was exempt from city enforcement of traffic laws because he is a member of the Choctaw Nation and Tulsa lies within the historic reservation boundaries of the Muscogee (Creek) Nation. A 2020 ruling by the U.S. Supreme Court, McGirt v. Oklahoma, held that the Muscogee reservation was never formally disestablished.

The 10th Circuit sided with Hooper.

State and local officials have warned the ruling could result in inconsistent enforcement of the law.

Following the ruling, Muscogee (Creek) Nation Principal Chief David Hill dismissed those concerns.

“The City of Tulsa and the MCN have been working together under a cross deputization agreement since 2006,” Hill said. “The sky is not falling.”

But the cross-deputization agreements touted by Hill have long been criticized as ineffective, and the Muscogee (Creek) Nation has been publicly criticized for failure to carry out its duties under those agreements.

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.”

In an amici curia brief filed with the U.S. Supreme Court in 2021, the Oklahoma District Attorneys Association, the Oklahoma Sheriffs’ Association, the Association of Oklahoma Narcotic Enforcers, and 27 District Attorneys warned that cross-deputization agreements are a flawed response at best.

“Although the tribes and federal government have ‘cross-commissioned’ or ‘cross-deputized’ many (but hardly all) Oklahoma police officers and investigators as tribal officers and federal officials, this has not removed jurisdictional uncertainty,” the brief stated. “And cross-deputization comes with problems of its own.”

Law enforcement officials warned that cross-deputization agreements may leave non-Indian participants facing increased legal liability for actions taken by tribal police.

“Some tribes have agreed to cross-deputize local police only if their tribal police receive reciprocal authority,” the brief stated. “Many local officials, however, fear the attendant liability risk. Tribes have absolute immunity from monetary judgments. … Local governments do not, but they lack the resources to train or oversee cross-deputized tribal police, placing municipalities at risk of liability for the conduct of tribal officers.”

In 2018, Osage County Sheriff Eddie Virden ended a cross-deputization agreement with Osage Nation police officers because of liability concerns.

“The way it was explained to me, the tribe as a sovereign nation cannot be sued, so if anything happens, the defense lawyers go after the counties,” Virden told The Bigheart Times.

Those concerns have arisen in other states as well.

In 2013, the Albuquerque Journal reported on a federal lawsuit against two former Pojoaque tribal police officers who were cross-commissioned as Santa Fe County sheriff’s deputies. The lawsuit alleged the officers had engaged in unreasonable seizure, malicious prosecution and battery stemming from a drunk-driving arrest. A second associated state lawsuit alleged that the Santa Fe County Sheriff’s Office was negligent in issuing commissions to Pojoaque Pueblo police officers.

A 2010 article in the American Indian Law Review at the University of Oklahoma College of Law warned, “One significant problem raised by many who oppose cross-jurisdictional law-enforcement agreements is the likelihood of tort actions that arise if an officer acts inappropriately and the question of where liability for that conduct will rest.”

The law review article noted that 38 of 39 county sheriffs in the state of Washington had opposed state legislation that would have expanded tribal police officers’ power to arrest non-Indian criminal suspects on reservations.

“The sheriffs oppose the proposed law because they are worried about their liability in the event of a lawsuit concerning a tribal officer’s actions,” the law review article stated.

The 10th Circuit’s decision in Justin Hooper v. City of Tulsa will have wide-ranging impact across eastern Oklahoma. Because of the McGirt decision, up to 42% of the state now lies with the historic boundaries of reservations that have been held to have never been formally disestablished.

Any individual within those areas who has a Certificate of Degree of Indian Blood (CDIB) card proving he or she is descended from a Native American will now be exempt from local enforcement of municipal ordinances throughout that territory and local police cannot issue them fines or arrest them for violations.

In a brief filed in the Hooper case, Tulsa officials did not voice confidence in the city’s cross-deputization agreement with the Muscogee (Creek) Nation. Instead, city officials warned that the practical effect of a ruling in Hooper’s favor would be to create “a system where municipal laws would only apply to some inhabitants, but not others, depending on a complex algorithm with variables based on tribal membership of a defendant as well as discrete geographies within the City limits.”