For the state of Oklahoma, the McGirt Fiasco continues. In June, the 10th Circuit Court of Appeals ruled against the city of Tulsa on the issue of a speeding ticket issued to a motorist who turned out to be a Choctaw Indian. And according to the developing McGirt Doctrine, the Choctaw, the Creek, the Cherokee and other tribes all have their reservations in eastern Oklahoma which nobody knew about since before statehood, but which have been magically revived by the McGirt decision in 2020.
In response to the 10th Circuit speeding ticket decision, Governor Kevin Stitt said that
"I am extremely disappointed and disheartened by the decision made by the Tenth Circuit to undermine the City of Tulsa and the impact it would have on their ability to enforce laws within their municipality... I am hopeful that the United States Supreme Court will rectify this injustice, and the City of Tulsa can rest assured my office will continue to support them as we fight for equality for all Oklahomans, regardless of race or heritage."
Well said, Governor Stitt, but two months later, rather than "rectify this injustice", the Supreme Court has muddled it further.
From NBC News:
WASHINGTON — The Supreme Court on Friday [August 4] rejected Tulsa's bid to block a lower court ruling that cast into doubt the Oklahoma city's ability to enforce municipal ordinances, including traffic laws, against Native Americans. The justices left in place for now the appeals court ruling that said, in light of a 2020 Supreme Court ruling that expanded tribal authority in Oklahoma, Tulsa no longer had exclusive jurisdiction to issue traffic citations against tribe members. [Supreme Court rejects Tulsa in Native American traffic laws dispute, by Lawrence Hurley, NBC News, August 4, 2023]
In a brief statement, Justice Brett Kavanaugh noted that the litigation will continue in lower courts and that the city may have alternative arguments that could succeed. He also said that nothing prevents the city from "continuing to enforce its municipal laws against all persons, including Indians."
Justice Kavanaugh, how can Tulsa issue tickets to Indians if they can just get higher courts to rule against the city?
As a result of the 2020 ruling in a case called McGirt v. Oklahoma, large swathes of eastern Oklahoma were deemed to be Native American land, including Tulsa.
Go to Tulsa and tell me it's an Indian reservation.
The ruling marked a major victory for tribes, which have traditionally struggled to assert their sovereignty.
Sovereignty is one thing, but saying that reservations, abolished by statehood in 1907, still exist in Oklahoma is ludicrous.
The city and surrounding area fall within the jurisdiction of what are known as the "five tribes" of Oklahoma, although there are numerous other tribes in the state. The five tribes — the Muscogee (Creek), Seminole, Cherokee, Choctaw and Chickasaw — were forcibly moved west in the 19th century in the traumatic event known as the Trail of Tears. Tulsa itself sits on Muscogee and Cherokee lands
Actually, they were called 'the Five Civilized Tribes' but I guess that designation is now politically incorrect.
The case before the court involved Justin Hooper, a member of the Choctaw Nation, who contested a $150 fine he received in Tulsa’s municipal court after being caught speeding. He argued that the court did not have jurisdiction over him because he is Native American, citing the 2020 Supreme Court ruling.
The city countered that it did have such power under an 1898 law called the Curtis Act, which gave lawmaking authority to cities incorporated in Indian Country. The law pre-dated Oklahoma becoming a state in 1907.
Rather than basing its case on the Curtis Act, Tulsa should have used the arguments presented by Chief Justice John Roberts in the dissent from McGirt. Roberts explains that the reservations were abolished by statehood in 1907.
Tulsa turned to the Supreme Court after the Denver-based 10th U.S. Circuit Court of Appeals ruled in favor of Hooper in June. "The effect of this decision is that the City of Tulsa, and other similar cities throughout eastern and southern Oklahoma, cannot enforce municipal ordinances against Indian inhabitants who violate them within City limits," Tulsa's lawyers said in court papers.
Tribes responded that the city could remedy the problem by expanding the implementation of cross-deputization agreements with tribal police, which are already commonplace in the state. The tribes said in court papers that other municipalities in eastern Oklahoma have cooperated on traffic tickets. Under that system, tickets issued against tribal members by city police are referred to the tribe, which then enforces them and remits most of the revenue back to the city in question.
It's too early to tell how far the McGirt effect will be felt, but the whole thing could be solved by the U.S. Congress.
The McGirt ruling was welcomed by tribes but has met with a frosty reception from some Oklahoma officials, most notably the state's Republican governor, Kevin Stitt, who warned after the appeals court ruling that "there will be no rule of law in eastern Oklahoma" if it was allowed to stand.
In a 2022 ruling, the Supreme Court undercut the impact of the McGirt ruling in a ruling that expanded state power over tribes.
Read all about it in my McGirt File here.