The Supreme Court is considering whether it should extend its emergency order from last week blocking a federal appeals court decision that deprived an Oklahoma city of the authority to charge members of Indian tribes with municipal offenses.
The city of Tulsa filed a brief on Aug. 1 urging the court to keep the temporary stay in place.
Although the underlying offense at issue in the case—speeding—is minor, if the Supreme Court agrees to formally review the lower court ruling, there could eventually be larger ramifications for law enforcement in Oklahoma and other states that have Indian reservations.
The weeklong stay in City of Tulsa v. Hooper (court file 23A73) came in the wake of the Supreme Court’s landmark 2020 ruling in McGirt v. Oklahoma, which stripped Oklahoma courts of the ability to hear criminal cases against Native Americans for crimes taking place on Indian lands. Justice Neil Gorsuch wrote the majority opinion in McGirt, which was joined by the four liberal justices at the time. The four conservative justices dissented from the majority decision.
In McGirt, the Supreme Court ruled that most of eastern Oklahoma and some of the central part of the state was Indian country because it hosted Indian reservations. This meant prosecution of Native Americans on these lands may only be pursued in tribal courts or in federal courts under a federal statute from 1885 called the Major Crimes Act, which gave federal courts exclusive criminal jurisdiction in cases of murder, assault causing bodily injury, and most sexual offenses.
Another court clarified that the reservations belonged to the so-called Five Civilized Tribes—Cherokee, Chickasaw, Choctaw, Creek (Muscogee), and Seminole.
Legal observers say the Supreme Court’s ruling has made law enforcement in the state chaotic at times.
On July 26, Justice Gorsuch, who oversees emergency appeals from Oklahoma, stayed a ruling in City of Tulsa v. Hooper by the U.S. Court of Appeals for the 10th Circuit until 5 p.m. on Aug. 2. He did not explain why he issued the order.
Oklahoma Gov. Kevin Stitt, a Republican, praised the Supreme Court last week for ruling in favor of Tulsa.
“I am encouraged that the United States Supreme Court delayed the implementation of the 10th Circuit’s devastating decision in Hooper v. City of Tulsa. If the Hooper decision stands, the City of Tulsa, using their own words to the Supreme Court, ‘…will no longer be able to enforce violations of municipal ordinances against Indian inhabitants,’” Mr. Stitt said.
“We must operate under one set of rules, regardless of race, heritage, or background, and cannot allow Tulsa and much of the rest of eastern Oklahoma to be turned into a reservation.”
In the case at hand, Justin Hooper, a member of the Choctaw Nation, was ticketed for speeding in 2018, a violation of Tulsa’s municipal code. The municipal court convicted Mr. Hooper and fined him $150, which he paid.
But later, after the McGirt decision was issued, Mr. Hooper sought post-conviction relief, arguing that the city did not have jurisdiction to prosecute him for running afoul of its local traffic code.
The municipal court denied his application for relief, and then he filed a lawsuit in federal court. The city asked the court to dismiss the case, saying that Tulsa had jurisdiction over the case. That court agreed with the city and dismissed Mr. Hooper’s appeal.
Mr. Hooper then went to U.S. district court to seek a judgment declaring that section 14 of the federal Curtis Act of 1898 did not apply to Tulsa. That statute broke up tribal governments and communal lands, clearing the way for Oklahoma to be admitted as a U.S. state in 1907.
The district court sided with Tulsa and dismissed the case.
Then, on June 28, the 10th Circuit overturned the lower court’s ruling, depriving Tulsa of the power to ticket tribal members. The circuit court determined that although section 14 of the Curtis Act gave Tulsa jurisdiction over Indians in Indian Territory, after Tulsa reorganized pursuant to state law in 1908, the section no longer applied.
“Mr. Hooper does not dispute that Section 14 provided Tulsa with jurisdiction over municipal violations committed by all its inhabitants, including Indians at the time it was enacted, as Tulsa was a municipality in the Indian Territory,” the circuit court stated.
“Rather, Mr. Hooper argues that once Tulsa reorganized under Oklahoma law, Section 14 no longer applied to the city. We agree.”
The appeals court also expanded the scope of the McGirt decision, which held, among other things, that tribal citizens could not be prosecuted for major crimes committed on the Muscogee Nation reservation because Congress had not taken steps to dissolve the reservation.
At the Supreme Court, the city filed a brief on Aug. 1 urging the court to extend the stay.
In its application, the city established that “review will likely be granted by this Court on this important issue and that such review will likely result in reversal of the Tenth Circuit[,]” city attorney Kristina L. Gray stated in the brief.
The city says it has evidence that the inhabitants of Tulsa will experience “disruption and safety issues” if the 10th Circuit’s decision is not stayed.
The city argues that because section 14 of the Curtis Act, which it calls “an important issue that has not been decided by this Court,” has not been interpreted by the Supreme Court, the court will “likely” agree to review it.
Mr. Hooper’s attorney, Tulsa lawyer John M. Dunn, filed a brief with the Supreme Court on July 31 urging it to rescind the stay.
Even if the court were to agree to review the case, “there is no fair prospect of reversal because the Tenth Circuit’s interpretation of the relevant statute clearly is the right one.”
The five tribes also filed a friend-of-the-court brief on July 31 in which they asked the Supreme Court not to extend the stay of the 10th Circuit’s decision.
The Supreme Court may decide the stay issue on Aug. 2.
