Tribal Nations are celebrating another win in federal court, following a ruling that a Choctaw citizen was improperly prosecuted for a speeding ticket in Tulsa.
The City of Tulsa argued it should have the ability to prosecute Native Americans in the wake of the McGirt v. Oklahoma decision because of a pre-statehood law known as the Curtis Act, which was meant to force allotment on tribal nations to make way for statehood.
Tulsa argued that section 14 of the act was never repealed by Congress and that it gave them the authority and criminal jurisdiction.
That argument was rejected Wednesday by the 10th circuit court of appeals.
The case began with a speeding ticket. In 2018 Justin Hooper, a Choctaw citizen. He was fined $150 and paid the ticket. But, five months after the 2020 landmark US Supreme Court decision in McGirt v Oklahoma-he challenged it and said he was not tried in the right court because he was caught speeding within the Muscogee Reservation reservation.
The City of Tulsa says it could prosecute him because of a pre statehood law known as the Curtis Act that gave them potential jurisdiction.
"Specifically, the municipal court relied on Section 14’s statement 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 protection therein,’" Judges McHugh, Eid and Carson wrote in the opinion that came down on Wednesday.
The Cherokee, Muscogee, Chickasaw, Choctaw, Quapaw and Seminole Nations of Oklahoma all filed an amicus brief in the case. They were represented by Kanji and Katzen PLLC of Ann Arbor Michigan, which was the firm that argued the landmark McGirt decision.
Cherokee Nation attorney general Sara Hill said Tulsa's reliance on the out-dated law is flawed.
"The laws that were set up for a very specific time to handle a very specific circumstance, and that circumstance ended at statehood," Hill said.
"And so did this authority that Tulsa is attempting to rely on here."
The City of Tulsa says it's reviewing the opinion and evaluating next steps.
In their argument, the city claimed Congress never repealed section 14-which gave them authority to prosecute Native people within its city borders.
The judges disagreed. In their 36-page opinion they wrote:
“The Oklahoma Constitution cannot amend an act of Congress. Congress limited its grant of jurisdiction in Section 14 to cities and towns in the Indian Territory…. Only Congress had the power to change that limitation.
Before Oklahoma became a state, Congress ruled that laws in Arkansas extended into Indian Territory to, “provide a temporary government for the Territory of Oklahoma, to enlarge the jurisdiction of the United States Court in the Indian Territory, and for other purposes.”
John Dunn, the lawyer for Justin Hooper, the plaintiff in the case said his client was pleased with the decision.
“The court followed the law and honored the treaties of the past and also correctly interpreted the Curtis Act,” Dunn said.
He said his client’s wish was to be allowed due process and to be tried in the right court.
Stitt criticizes decision, while tribal nations praise it
Gov. Kevin Stitt, has been vocal in his opposition to the McGirt decision. He said he was disappointed in the 10th circuit’s ruling in a statement and said the court’s decision was creating two systems of justice based on race.
“It is plain and simple, there cannot be a different set of rules for people solely based on race,” Stitt wrote.
Tribal nations are not racial groups, but rather political entities. This is the fundamental tenet of Indian law and is based on a Supreme Court decision from the 1970s in the case as Mancari v. Morton.
“Citizens of Tulsa, if your city government cannot enforce something as simple as a traffic violation, there will be no rule of law in eastern Oklahoma,” Stitt said in a statement.
Principal Chief David Hill of the Muscogee Nation shot back saying that Stitt should be ashamed of his remarks.
“It’s unclear to me whether the Governor’s remarks are born of intentional dishonesty or an inexcusable ignorance of the laws,” Hill wrote in a statement sent to reporters.
In the opinion, judges said the City of Tulsa warned reversing a district court’s decision would lead to an, “’unworkable’ and ‘counterintuitive’ system where municipal laws would apply only 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.”
But they noted that the City of Tulsa has compacts and agreements with the Muscogee Nation and Cherokee Nation where officers of the law such as Lighthorsemen, Cherokee Marshals and Tulsa Police may stop and issue a citation as long as cross deputization agreements are in place.
“The Nation presently exercises highly effective criminal law enforcement throughout its Reservation—including in traffic matters,” the court wrote.
“In close cooperation with other governments and reversing the district court’s decision will allow that cooperative enforcement to continue to flourish.”
Principal Chief Hill in his statement noted that Tulsa PD has the ability to enforce laws and that the City of Tulsa and the, “MCN have been working together under a cross-deputization agreement since 2006.”
“The sky is not falling,” Hill said
Tulsa could ask the U.S. Supreme Court to grant what’s known as cert to review and take up the case. Last year, SCOTUS denied Oklahoma a petition asking them to define who is an Indian under federal law.
“I certainly hope that it’s the last word,” Cherokee Nation Attorney General Sara Hill said of the ruling.
John Dunn, who represented Justin Hooper, is also glad that the court followed the rule of law, which was all his client asked for.
“[The] Constitution and Congress regulate the relations with the Indian tribes. That's their extensive province and that they made treaties and agreements with those tribes and that those treaties and agreements should be honored and that they are, according to the U.S. Constitution, the treaty is the supreme law of the land,” he said.