Federal judges say cities can't ticket Natives

Derrick James, McAlester News-Capital, Okla.
·3 min read
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Jun. 28—A federal appeals court on Wednesday rejected the city of Tulsa's argument that the city still had the ability to prosecute Native Americans for municipal violations despite the U.S. Supreme Court's ruling in McGirt.

The case was argued in front of the Tenth Circuit Court of Appeals after Justin Hooper, a member of the Choctaw Nation, was fined $150 for a traffic violation in 2018 by the Tulsa Police Department.

Hooper filed for post-conviction relief following the U.S. Supreme Court's 2020 decision in McGirt v. Oklahoma recognizing the Muscogee (Creek) Nation was never disestablished and the state of Oklahoma did not have criminal jurisdiction over crimes committed by Native Americans.

The city argued it had the authority to prosecute municipal violations committed by Native Americans through section 14 of the Curtis Act, a law from 1898 that predates Oklahoma's statehood.

The section of the Act states "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."

A municipal judge for the city of Tulsa agreed with the city's argument and denied Hooper's motion.

Hooper filed a complaint with the Northern District of Oklahoma with the court agreeing with the city that Congress granted Tulsa through the Curtis Act the authority over municipal violations "by all its inhabitants, including Indians."

Judges for the Tenth Circuit wrote in the Wednesday opinion the Northern District "erred in granting dismissal of Mr. Hooper's declaratory judgement claim because even if the Curtis Act was never repealed, it is no longer applicable to Tulsa."

Congress passed the Curtis Act in 1898 to force allotment of the Muscogee (Creek) Nation reservation and abolish the tribe's court system to allow the incorporation of cities, such as Tulsa, to operate under the laws of Arkansas.

Attorneys for Hooper argued the Curtis Act no longer applied as the city of Tulsa is now operating under Oklahoma state law.

The Appeals Court agreed with Hooper's argument.

"Upon statehood, Tulsa became a municipality subject to the laws of the Oklahoma Territory, until the point it was reorganized under Oklahoma state law. So, by its express terms, Section 14 of the Curtis Act no longer applied to Tulsa upon statehood, and Tulsa had no "present rights and powers" stemming from the Curtis Act to be preserved by the Oklahoma Constitution," the court wrote in its opinion.

Tulsa argued if the Tenth Circuit reversed the Northern District's decision, it would lead to an "unworkable" system where some people are subject to laws based on their race.

The Muscogee (Creek) Nation countered Tulsa's argument by saying the Nation works in close cooperation with other government and that a reversal of the decision would "allow that cooperate enforcement to continue to flourish."

Judges for the Tenth Circuit wrote it limited to interpreting the laws Congress enacted and not the parties' "dire warnings.'"

The Northern District of Oklahoma is now ordered by the Tenth Circuit to vacate its ruling and conduct proceedings consistent with the opinion.