Law & Principles

Tribes reverse course from their prior McGirt arguments

August 22, 2022

Ray Carter

In its 2020 McGirt v. Oklahoma opinion, the U.S. Supreme Court found that because Congress never passed legislation explicitly eliminating certain Indian reservations, those reservations still exist as Indian country in Oklahoma today for purposes of the federal Major Crimes Act (MCA).

Now several tribes that celebrated the McGirt ruling are effectively doing a 180-degree pivot by urging federal judges to rule that an 1898 law impacting Oklahoma reservations is no longer in effect. The tribes are making that argument even though that 1898 law was never explicitly repealed by Congress and any implicit repeal of the law was based on the elimination of Oklahoma reservations that McGirt found never occurred.

Among other things, the outcome of the court battle will determine if Oklahoma municipalities in most of eastern Oklahoma can issue speeding tickets to American Indian drivers. (Notably, most of Tulsa technically lies within two of the McGirt reservations.)

If the tribes prevail, a pair of diametrically opposite outcomes both become more likely to occur. First, some American Indians will be able to avoid speeding tickets altogether. And second, when an American Indian driver does receive a ticket, it may be for a larger amount than the fine assessed against a non-Indian for the same crime, based on a brief filed by a coalition of Oklahoma tribes that favors the latter arrangement.

The case centers on Justin Hooper, who received a speeding ticket in Tulsa on Nov. 25, 2020, and paid a fine of $150. Hooper later challenged the legality of his ticket under the McGirt ruling because Hooper is a member of the Choctaw Nation and the offense occurred at approximately U.S. 169 and 51st Street in Tulsa, which lies within the historic boundaries of Muscogee (Creek) Nation reservation, an area declared “Indian country” by the U.S. Supreme Court.

But the City of Tulsa argued it retains the power to issue such citations under section 14 of the federal Curtis Act of 1898, which regarded the authority of certain towns in what was then known as Indian Territory. Section 14 states that “all inhabitants of such cities and towns, without regard to race, shall be subject to all laws and ordinances of such city or town governments, and shall have equal rights, privileges, and protections therein.”

A federal judge sided with the City of Tulsa in a lower-case ruling, which is now being appealed.

Hooper’s brief in the appeal argued that American Indians are exempt from municipal regulations if an Oklahoma city is located in Indian country under the McGirt ruling.

“Crimes not described in the MCA committed by Indians in Indian country are subject to either federal or tribal jurisdiction under federal law,” Hooper’s brief stated. “Like the state, Tulsa’s municipal judicial authority on the Muscogee (Creek) and Cherokee Reservations is limited to authority to prosecute crimes by non-Indians against non-Indians.”

A brief filed by the Muscogee (Creek) Nation echoed that claim, saying that “the law is clear: Absent congressional authorization, neither states nor their political subdivisions have jurisdiction over crimes involving Indian defendants committed within the boundaries of an Indian reservation.”

A brief filed by the Cherokee Nation, Chickasaw Nation, Choctaw Nation of Oklahoma, Quapaw Nation, and Seminole Nation declared that the district court ruling upholding Tulsa’s authority to issue speeding tickets to American Indian drivers “threatens to establish a new presumption in eastern Oklahoma—that municipalities have jurisdiction over Indians within their boundaries,” and declared that would “strike at the heart of tribal authority.”

But the brief filed by the City of Tulsa says Hooper and the tribes are asking the courts to ignore the plain language of longstanding federal law and the fact that Congress has given the city jurisdiction over Indians and non-Indians alike within its city limits.

“The crux of the Appellant’s argument is that the City has no jurisdiction over criminal offenses committed by Indians within Indian reservations,” the Tulsa brief stated, “yet he fails to cite any controlling statute or case law that removes the City’s municipal criminal jurisdiction over all races which was originally granted by the Curtis Act in 1898.”

The State of Oklahoma, in a brief filed in support of Tulsa and of upholding the lower court decision, quoted the U.S. Supreme Court’s McGirt decision to bolster the case for Tulsa.

“Congress’s decision to allow certain municipalities like Tulsa to avoid preemption is a policy decision within Congress’s prerogative,” the State of Oklahoma’s brief said. “Perhaps Congress intended to keep that policy only temporarily, just as it intended to keep reservations only temporarily, but ‘just as wishes are not laws, future plans aren’t either.’ ... The district court correctly applied the plain text of federal statutes allowing Tulsa to exercise jurisdiction here instead of attempting to divine unexpressed congressional intent.”

A footnote in the State of Oklahoma’s brief noted that “any intent to keep the Curtis Act temporary was tied to an intent to end reservations in 1906.”

The City of Tulsa argued nothing in federal law indicates the Curtis Act was intended as a temporary, stopgap measure.

“The Appellant can cite to no express language from the Curtis Act which states or indicates that its provisions were intended to be temporary or had any sort of expiration date,” the City of Tulsa brief stated. “Without a further act of Congress to alter, amend, or repeal Section 14 of the Curtis Act it remains good law today and properly confers upon the City of Tulsa authority to enforce its ordinances against all inhabitants.” (Emphasis in original.)

Tribes Decry Use of McGirt Arguments They Once Praised

Although the City of Tulsa and the State of Oklahoma’s arguments are based in part on the principles established in the McGirt decision, tribal governments that hailed that decision now decry the use of those same arguments to uphold Curtis Act provisions.

The brief filed by the Muscogee (Creek) Nation declared that Tulsa’s assertion of Curtis Act jurisdiction “takes direct aim at the Nation’s right of self-government, as just the latest in a series of relentless efforts by Oklahoma, certain of its political subdivisions, and others to eviscerate the force and reach of this Court’s landmark decision in Murphy and the resounding vindication of that decision in McGirt,” and declared that any decision in favor of Tulsa would “blow a Tulsa-sized hole in McGirt and riddle it with additional exemptions elsewhere.”

(The Curtis Act provisions would apply to many communities throughout eastern Oklahoma that have been declared Indian country under the McGirt ruling.)

In their briefs, tribal governments offered a range of statistics regarding traffic tickets issued by their tribal police forces following the McGirt decision. The Muscogee (Creek) Nation brief also declared that it “presently exercises highly effective criminal law enforcement throughout its Reservation—including in traffic matters—in close cooperation with other governments.”

But that claim is undercut by an incident that became public in February when 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.”

A further indication that tribal governments are struggling to fulfill their public-safety duties under McGirt came when the Oklahoma Legislature voted this year to require Oklahoma highway patrol officers to carry out tribal-court orders, allowing the tribes to offload much of the associated manpower hours and costs associated with traffic enforcement.

And, while cross-deputization agreements are still in place in many communities, the brief filed by the Cherokee Nation and other tribes indicated a major impact of those agreements may be to impose larger fines on American Indians than on non-Indian individuals convicted of the same speeding violations.

“The Cherokee Nation is further implementing its jurisdictional agreements through over a dozen memoranda of understanding with municipalities on its Reservation, under which the Nation shares a portion of fines assessed by tribal law with the municipality in which the offense was committed, equal to the share the municipalities would obtain from fines for offenses committed outside Indian country,” the Cherokee Nation brief stated.

If Tulsa law enforcement officials are allowed to issue speeding tickets to American Indian drivers and similarly enforce other municipal codes, tribal officials claimed it will create chaos in the administration of justice.

But Tulsa officials dismissed those concerns, noting the long history of successful municipal administration.

In their brief, Tulsa officials said it is “the Appellant who is proposing 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. Such a system is clearly more ‘unworkable’ and ‘counterintuitive’ than a clear system where all inhabitants of the City are treated equally for municipal violations.”

And Tulsa officials noted similar concerns were raised by state and local officials when the McGirt case went before the U.S. Supreme Court. Those arguments were rejected by the court, and the Tulsa brief said the same principle now applies to upholding the Curtis Act.

“… [T]he argument that criminal jurisdiction would become complicated and difficult if the Muscogee Creek Nation obtained reservation status was raised by the municipal, State, and federal governments in McGirt, to which the Supreme Court responded that difficulty in application of a law is not a reason to change it, and Courts should not ‘be taken by the “practical advantages” of ignoring the written law,’” the Tulsa brief stated.