The tribes reverse course on their earlier McGirt arguments

In his 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 the purposes of the law. Major Crimes Act (MCA).

Now several tribes who celebrated the McGirt effectively turn 180 degrees by urging federal judges to rule that an 1898 law affecting Oklahoma’s reservations is no longer in effect. The tribes make this argument even though this 1898 law was never explicitly repealed by Congress and any implied repeal of the law was based on eliminating Oklahoma’s reservations that McGirt found never happened.

Among other things, the outcome of the court battle will determine whether Oklahoma municipalities across much of eastern Oklahoma can issue speeding tickets to Native American drivers. (Notably, most of Tulsa technically falls within two of the McGirt Reservations.)

If the tribes prevail, a pair of diametrically opposed outcomes become more likely to occur. First, some American Indians will be able to avoid speeding tickets altogether. And two, when a Native American driver receives a ticket, it may be higher than the fine imposed on a non-Indian for the same crime, based on a brief filed by a coalition of tribes of Oklahoma which favors the latter arrangement. .

The case centers on Justin Hooper, who received a speeding ticket in Tulsa on November 25, 2020 and paid a $150 fine. Hooper later challenged the legality of his ticket under the McGirt decision because Hooper is a member of the Choctaw Nation and the offense occurred at approximately US 169 and 51st Street in Tulsa, which is within the historic boundaries of the Muscogee (Creek) Nation Reservation, a declared area “Indian Country” by the United States Supreme Court.

But the city of Tulsa argued that it retained the power to issue such citations under Section 14 of the federal Curtis Act of 1898, which considered the authority of certain cities in what was then known as the name of Indian territory. Article 14 states that “all the inhabitants of such towns and villages, without distinction of race, shall be subject to all laws and ordinances of the governments of such towns or cities, 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 a town in Oklahoma is located in Indian Country under the McGirt decision.

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

A brief filed by the Muscogee Nation (Creek) echoed this assertion, saying that “the law is clear: Absent authorization from Congress, neither the 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 said the district court’s decision upholding Tulsa’s authority to issue speeding tickets to Native American drivers “threatens to establish a new presumption in eastern Oklahoma – that municipalities have jurisdiction over Indians within their boundaries”, and said it would “strike at the heart of the authority tribal”.

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 gave the city jurisdiction over Indians and non-Indians. -Indians within the limits of his city.

“The heart of the appellant’s argument is that the city has no jurisdiction over criminal offenses committed by Indians on Indian reservations,” Tulsa’s brief said, “yet he cites no statute or case law. determinative which 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 affirmation of the lower court’s decision, cited the U.S. Supreme Court’s decision McGirt decision to bolster Tulsa’s case.

“Congress’s decision to allow certain municipalities like Tulsa to avoid preemption is a policy decision within the prerogative of Congress,” the Oklahoma state brief said. “Perhaps Congress intended to keep this policy only temporarily, just as it intended to keep the reservations only temporarily, but ‘just as wishes are not laws, future plans are not. neither are they.” … The District Court correctly applied the plain language of the federal laws permitting Tulsa to exercise jurisdiction here instead of attempting to second guess the unexpressed intent of Congress.

A footnote in Oklahoma State’s brief noted that “Any intention to maintain the temporary Curtis Act was tied to an intention to end the reservations in 1906.”

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

“The appellant cannot cite any express language from the Curtis Act that states or indicates that its provisions were intended to be temporary or had some sort of expiration date,” the city of Tulsa brief said. “Without further act of Congress to alter, amend, or repeal Section 14 of the Curtis Act, it remains good law today and rightfully empowers the City of Tulsa to enforce its ordinances against everything inhabitants “. (Emphasis in original.)

The tribes denounce the use of McGirt Arguments they once praised

Although the arguments of the City of Tulsa and the State of Oklahoma rest in part on the principles established in the McGirt decision, the tribal governments that welcomed the decision are now denouncing the use of these same arguments to enforce the provisions of the Curtis Act.

The brief filed by the Muscogee Nation (Creek) said Tulsa’s assertion of Curtis Act jurisdiction “directly targets the nation’s right to self-government, as the latest in a series of ongoing efforts of Oklahoma, some of its political subdivisions, and others to eviscerate the force and scope of this Court’s historic decision in Murphy and the resounding justification of this decision in McGirt“, and said that any decision in favor of Tulsa “would put a hole the size of Tulsa in McGirt and riddle it with additional exemptions elsewhere.

(The provisions of the Curtis Act would apply to many communities in eastern Oklahoma that have been declared Indian Country under the McGirt decision.)

In their submissions, tribal governments provided a series of statistics regarding tickets issued by their tribal police forces as a result of the McGirt decision. The Muscogee Nation (Creek) brief also stated that it “currently exercises very effective criminal law enforcement throughout its reservation – including traffic – in close cooperation with other governments.”

But that claim is undermined by an incident that became public in February when Hughes County Sheriff Marcia Maxwell announced that her office was ending its cross-delegation agreement with the Lighthorse Police of the Muscogee Nation (Creek) .

In a public letter, Hughes said the Muscogee (Creek) Nation demanded that his office perform nearly all law enforcement duties (and bear nearly all associated costs) of any joint activity, and that anyone arrested and handed over to the Muscogee (Creek) justice system was “rarely prosecuted and very rarely spent time in jail”.

Another 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 enforce tribal court orders, allowing tribes to offload much of the manpower hours and costs associated with traffic enforcement.

And, although cross-delegation agreements are still in place in many communities, the brief filed by the Cherokee Nation and other tribes indicates that a major impact of these agreements could be to impose greater fines on Native Americans. than to non-Indians convicted of the same speeding violation.

“The Cherokee Nation further implements its jurisdictional agreements through more than a dozen Memoranda of Understanding with municipalities on its reservation, under which the Nation shares a portion of the fines imposed by tribal law with the municipality in which the offense was committed, equal to the share municipalities would receive in fines for offenses committed outside of Indian Country,” the Cherokee Nation brief stated.

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

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

In their brief, Tulsa officials said it’s “the caller proposing a system in which municipal laws apply only to some residents, but not others, based on an algorithm complex with variables based on a defendant’s tribal affiliation as well as discrete geographies within City limits.Such a system is clearly more “unworkable” and “counter-intuitive” than a clear system where all City residents are treated the same for municipal offenses.

And Tulsa officials noted that similar concerns were raised by state and local authorities when the McGirt the case went to the United States Supreme Court. Those arguments were rejected by the court, and Tulsa’s brief said the same principle now applies to upholding the Curtis Act.

“… [T]The argument that criminal jurisdiction would become complicated and difficult if the Muscogee Creek Nation were granted reservation status has been raised by municipal, state and federal governments in McGirtto which the Supreme Court replied that the difficulty of applying a law is no reason to change it, and that the courts should not “be taken up with the ‘practical advantages’ of ignoring the written law” , said the Tulsa brief.

Denise W. Whigham