The Supreme Court unexpectedly extended to Aug. 4 its emergency order blocking a federal appeals court decision that deprived an Oklahoma city of the authority to charge members of Indian tribes with municipal offenses.
Although the underlying offense at issue in the case—a speeding charge—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 perhaps in other states that have Indian reservations.
The extension, granted late on Aug. 2 by Justice Neil Gorsuch, will give the court more time to decide what to do in the matter of City of Tulsa v. Hooper (court file 23A73), which concerns a decision by the U.S. Court of Appeals for the 10th Circuit. He did not explain why he issued the order.
Previously, on July 26, Justice Gorsuch, who oversees emergency appeals from Oklahoma, stayed the 10th Circuit’s ruling until 5 p.m. on Aug. 2. He did not explain why he granted that order, either.
In the case, Justin Hooper, a Tulsa resident, and 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.
Then in 2020, the Supreme Court handed down its landmark decision in McGirt v. Oklahoma, which took away the ability of Oklahoma courts to hear criminal cases against Native Americans for crimes that take place on Indian lands. Justice 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 held 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 have said the Supreme Court’s ruling has made law enforcement in the state chaotic at times.
Oklahoma Gov. Kevin Stitt, a Republican, praised the Supreme Court last week after it ruled for Tulsa.
“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,” he said at the time.
Court Dismissals
Sensing an opportunity to undo his speeding conviction, Mr. Hooper sought post-conviction relief after the McGirt decision was rendered. He argued that in light of McGirt, his status as a member of a federally recognized tribe meant the city did not have jurisdiction to prosecute him for running afoul of its local traffic code while within the boundaries of the Creek reservation.But the city notes in its application that Mr. Hooper is a citizen of the Choctaw Nation and that the traffic stop took place 166 miles away from that nation’s tribal court. “Tulsa asserts concurrent, not exclusive, jurisdiction over Mr. Hooper as a city of Tulsa resident and non-member Indian,” the city said.
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 10th Circuit 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 Creek reservation because Congress had not taken steps to dissolve the reservation.
The Epoch Times reached out for comment to both sides in the case after Justice Gorsuch issued his latest order.
Michelle Brooks, director of communications for the city government, refused to comment.
Mr. Hooper’s attorney, Tulsa lawyer John M. Dunn, had not responded as of press time.
Justice Gorsuch’s new order states that the stay is extended until 5 p.m. on Aug. 4.
On Aug. 4, the Supreme Court could extend the stay again or rescind it. The court could also decide to treat the city’s emergency application as a petition for certiorari, or review, and schedule oral arguments in the case.
