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Supreme Court Continues Oklahoma’s McGirt Fiasco, Upholds 10th Circuit on Speeding Case | Blog posts

For Oklahoma State, the McGirt fiasco continues. In June, the 10th Circuit Court of Appeals ruled against the city of Tulsa over 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, Creek, Cherokee and other tribes all have their reservations in eastern Oklahoma that no one knew about from before statehood, but which have been magically revived by the McGirt decision in 2020.

In response to the 10th Circuit’s speeding ticket decision, Governor Kevin Stitt had this to say

“I am extremely disappointed and disheartened by the Tenth Circuit’s decision to undermine the City of Tulsa and the impact it would have on its ability to enforce the laws within its municipality…I am hopeful that the Supreme Court of the America to right this injustice, and the city of Tulsa can rest assured that 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, instead of “righting this injustice,” the Supreme Court has confused it even more.

From NBC News:

WASHINGTON – The Supreme Court on Friday [August 4] rejected Tulsa’s bid to block a lower court ruling that questioned the Oklahoma city’s ability to enforce municipal ordinances, including traffic laws, against Native Americans. The justices upheld the appeals court’s ruling for the time being, which said, in light of a 2020 Supreme Court ruling that expanded tribal authority in OklahomaTulsa no longer had exclusive jurisdiction to issue traffic citations against tribal members. [Supreme Court rejects Tulsa in Native American traffic laws dispute, by Lawrence Hurley, NBC News, August 4, 2023]

In a declaration lettert, Judge 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 nothing prevents the city from “continuing to enforce its municipal laws against all persons, including Indians.”

Judge Kavanaugh, how can Tulsa issue tickets to the Indians if they can only get the 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 Native American lands, including Tulsa.

Go to Tulsa and tell me it’s an Indian reservation.

The ruling was a major victory for the tribes, who have traditionally fought to assert their sovereignty.

Sovereignty is one thing, but to say that reservations, abolished by statehood in 1907, still exist in Oklahoma is ludicrous.

The city and its surroundings fall within the jurisdiction of what are known as the “five tribes” of Oklahoma, although there are many other tribes in the state. The five tribes—the Muscogee (Creek), Seminole, Cherokee, Choctaw, and Chickasaw—were forcibly moved westward in the 19th century in the traumatic event known as the Trail of Tears. Tulsa itself is on Muscogee and Cherokee lands

They were actually 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 Municipal Court after he was caught speeding. He argued that the court had no jurisdiction over him because he is Native American, citing the 2020 Supreme Court ruling.

The city countered that it had that power under an 1898 law called the Curtis Act, which gave incorporated cities in Indian Country legislative authority. The law predates Oklahoma becoming a state in 1907.

Instead of basing its case on the Curtis Act, Tulsa should have used the arguments presented by Chief Justice John Roberts in McGirt’s dissent. Roberts explains that reservations were abolished by statehood in 1907.

Tulsa appealed to the Supreme Court after the Denver-based U.S. Court of Appeals for the 10th Circuit ruled in favor from Hooper in June. “The effect of this decision is that the City of Tulsa, and other similar cities in eastern and southern Oklahoma, cannot enforce municipal ordinances against Indian residents who violate them within the city limits ” Tulsa attorneys said in court documents.

The tribes responded that the city could fix the problem by expanding enforcement of cross-delegation agreements with tribal police, which are already common in the state. The tribes said in court documents that other municipalities in eastern Oklahoma have cooperated with the traffic fines. Under this system, tickets issued against tribal members by city police are forwarded to the tribe, which then enforces them and remits most of the proceeds to the city in question.

It’s too early to say how much the McGirt effect will be felt, but the US Congress could sort it all out.

The McGirt ruling was welcomed by the tribes, but has received a frosty reception from some Oklahoma officials, most notably the state’s Republican governor, Kevin Stitt, who warned after the appeals court ruled that “there will be no rule of law in eastern Oklahoma” if allowed to stand.

In a 2022 ruling, the Supreme Court lessen the impact of the McGirt ruling in a ruling that expanded state power over tribes.

Read it all in my McGirt file here.


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