Supreme Court Rejects Tulsa’s Request to Extend Authority Over American Indians

WASHINGTON—The Supreme Court Friday let stand a lower court order exempting American Indians from a range of local laws in Tulsa, Okla., the latest aftershock of the justices’ 2020 ruling that recognized tribal sovereignty in most of eastern Oklahoma.

The court rejected an emergency request the city of Tulsa filed to stop implementation of a circuit court decision it said undermined public safety by preventing police officers from enforcing traffic laws against Indians. As is typical in emergency matters, the court’s order was unsigned and didn’t disclose how the justices voted.

In a statement accompanying the order, Justice Brett Kavanaugh wrote that Tulsa could continue to raise its arguments as appeals over the issue proceed in the lower courts. “As I understand it, nothing in the decision of the Court of Appeals prohibits the City from continuing to enforce its municipal laws against all persons, including Indians, as the litigation progresses,” he wrote, joined by Justice Samuel Alito.

Tulsa took comfort in that statement.

“As indicated by the Justices, the City will continue to seek clarification of these important legal issues with the District Court and, in the meantime, continue to enforce City ordinances against all persons within the City of Tulsa regardless of Indian status. We will also continue to work cooperatively with our tribal partners to protect the health and safety of our shared constituents,” the city said in a statement.

Chuck Hoskin Jr., principal chief of the Cherokee Nation, one of the five tribes whose jurisdiction is at issue, said the Supreme Court’s refusal to intercede left in place “tribal sovereignty and settled federal law—reaffirming that states and municipalities do not have criminal jurisdiction over Indians in Indian Country.” Hoskin added: “I’m calling for collaboration, cooperation and an end to the attacks on tribal sovereignty.”

The court’s 5-4 decision in 2020, McGirt v. Oklahoma, forced a restructuring of Oklahoma criminal justice because in general only federal and tribal authorities—not states—can prosecute tribal members for crimes committed in Indian country, the legal term for reservations and other lands where the U.S. recognizes native sovereignty. 

The court pulled back on part of that decision in a 2022 ruling, allowing Oklahoma to prosecute non-Native-Americans in Indian country, but the impact of McGirt has been dramatic in such places as Tulsa, where 190 of the city’s 220 square miles fall within the Muscogee (Creek) and Cherokee reservations. 

In June, a federal appeals court in Denver threw out a $150 speeding ticket a Tulsa police officer issued to Justin Hooper, a member of the Choctaw tribe, in 2018. The 10th U.S. Circuit Court of Appeals reasoned that under the McGirt decision, neither the state of Oklahoma nor its political subdivisions, such as the city of Tulsa, could enforce their laws against tribal members within Indian country. 

In its Supreme Court appeal, Tulsa argued that if it stands, the circuit court decision would throw local law enforcement into chaos. “Laws enacted for the protection of the health and safety of [Tulsa] residents are only enforceable by the City against some citizens but not others,” the city’s brief argued, with police officers required “to apply a complex Indian Country jurisdiction analysis to every traffic citation, every criminal citation,” such as trespassing and larceny from a retailer, “and every misdemeanor arrest (typically DUI, public intoxication, etc.).” 

In an affidavit, the city’s deputy police chief said that following McGirt, “Indian citizens [have been] challenging TPD officers in the field, reflecting a sense of impunity to basic standards of conduct.” The affidavit listed several incidents recorded by police video, such as a February 2021 traffic stop where a driver ticketed for going 78 miles per hour in a 50 mph construction zone responded by showing the officer his Cherokee identification. “I thought this was my ‘get-out-of-jail-free’ card now, my Indian card,” the driver said. 

Tulsa isn’t asking the Supreme Court to overrule McGirt, but argues rather that an 1898 federal law, the Curtis Act, provides the city with equal authority over all persons within its limits regardless of tribal affiliation. The Curtis Act abolished tribal courts within Indian territory that would make up the future state of Oklahoma and authorized cities to incorporate and exercise powers based on the laws of neighboring Arkansas.

The 10th Circuit rejected that argument, finding that the Curtis Act ceased to apply after Oklahoma entered the Union in 1907, transferring the source of Tulsa’s authority from a federal statute to a municipal charter under state law. The city’s fears of disruption weren’t relevant to the legal analysis, the appeals court said. “If the system in place in Oklahoma proves untenable, ‘Congress remains free to supplement its statutory directions about the lands in question at any time,’ ” it said, quoting the McGirt opinion. 

In a brief opposing Tulsa’s application, tribal governments argued that the city’s claims of legal chaos were exaggerated and, in any event, its own fault for refusing to cooperate with the Indian nations to enforce minor infractions. 

The tribes say that cooperative law-enforcement agreements with Tulsa and other cities in Indian country covering most crimes have functioned smoothly—and that Tulsa is an outlier because it refuses to include traffic offenses within those compacts.

“Except with respect to traffic enforcement, Tulsa has cooperated through cross-deputization agreements with the Creek and Cherokee Nations on a wide variety of fronts, including referring criminal misdemeanors and felonies to the Nations, with more than 1,000 this year alone to the Creek Nation,” the tribes said.

“The Creek and Cherokee Nations stand ready, in the spirit of good faith, comity and cooperative sovereignty, to discuss with Tulsa any additional cooperative measures Tulsa believes are needed in the area of traffic safety and enforcement,” they said.

The 2020 McGirt decision, written by Justice Neil Gorsuch for a 5-4 court, gave new life to historic agreements with native tribes that Washington had at best honored inconsistently.

The decision rejected long-held assumptions by state and federal authorities that statehood dissolved the reservations Washington granted in the 1800s to the Cherokee, Chickasaw, Choctaw, Muscogee (Creek) and Seminole tribes after they were driven to the Great Plains from their homelands in the southeastern U.S.

The Supreme Court pulled back on McGirt in a 5-4 ruling in 2022 after Justice Amy Coney Barrett succeeded the late Justice Ruth Bader Ginsburg, who had joined Gorsuch’s majority opinion in 2020. Gorsuch dissented in the 2022 decision, joined by the three remaining justices who had voted with him in McGirt.

Write to Jess Bravin at [email protected]