No Speed Limit for Native Americans

Are Native Americans really immune from municipal traffic laws in nearly half of Oklahoma? This is the latest strangeness arising from Supreme Court Justice Neil Gorsuch’s flight of textualist fancy in the McGirt decision three years ago. Last week the federal 10th Circuit Court of Appeals said a Choctaw man, Justin Hooper, can’t be fined in Tulsa for speeding.

Mr. Hooper paid a $150 traffic ticket in 2018. But after McGirt transformed much of eastern Oklahoma into what the law calls “Indian country,” Mr. Hooper asked for a judgment ruling him untouchable by municipal driving laws. “Mr. Hooper has a credible fear,” his attorney told the judges during oral argument, “that the city of Tulsa will continue to attempt to enforce their traffic ordinances against him.”

Tulsa’s argument was that it originally incorporated under the 1898 Curtis Act, a federal law that authorized it to enforce its laws against “all inhabitants” and “without regard to race.” The legal dispute was whether, as the city claimed, this power survived Tulsa’s reorganization upon Oklahoma’s statehood in 1907. The 10th Circuit panel ruled that it did not, meaning the Curtis Act’s sweeping grant of jurisdiction does not apply to “Tulsa in its current form.”

What a mess. Advocates of Native American sovereignty say it isn’t so bad, since Oklahoma cities can make agreements with their nearby tribes to cross-deputize each other’s police officers. “It has always been the case that the City of Tulsa has the authority to write tickets and send those over to our various nations,” the Cherokee Nation’s attorney general told the Associated Press. “They simply haven’t been doing that in favor of this Curtis Act argument.”

Yet there are serious concerns about the transparency and efficiency of this process. How are beat cops supposed to identify everybody who’s Native American, and what if perpetrators lie or are incapacitated and can’t answer? Even when the facts are stipulated in open court, it isn’t always clear who legally counts as Native American. One case after McGirt involved a 3/16 Choctaw who wasn’t a tribal member at the time of his crime, and who spent nine years in an Aryan white-supremacist prison gang. His conviction was tossed anyway.

If a city speed limit can’t touch tribal members, what about zoning codes or license requirements or other municipal rules? “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,” said Gov. Kevin Stitt, who’s a Cherokee. “It is plain and simple, there cannot be a different set of rules for people solely based on race.”

Tulsa Mayor G.T. Bynum said last week the city intends to appeal, and he has “authorized our attorneys to request that the United States Supreme Court hear this case.” In his McGirt opinion, Justice Gorsuch was blithe about the ramifications of reviving Native American reservations that generations of Oklahomans understood had ceased to exist. Now the legal questions keep coming, and somebody has to answer them with justice on the line.