Oklahoma Bar Journal
Oklahoma Cities and Towns in Indian Country are not Immune From the U.S. Supreme Court’s Holding in McGirt
By Chrissi Ross Nimmo
Since the United States Supreme Court’s decision in McGirt1 that the state of Oklahoma lacks jurisdiction over crimes committed by or against Indians2 in Indian country, several towns and cities have taken the position they still have jurisdiction over such crimes under the Curtis Act,3 a federal law passed in 1898 to facilitate the transition of the Oklahoma and Indian territories to statehood. As will be discussed below, the position taken by these municipalities is not only contrary to arguments made by the state of Oklahoma and the city of Tulsa in McGirt4 but is also based on a fundamental misunderstanding of the purpose and history of the Curtis Act.
THE IMPACT OF MCGIRT AND ITS PROGENY ON CRIMINAL JURISDICTION IN OKLAHOMA
When the United States Supreme Court issued its opinion in McGirt v. Oklahoma,5 most attorneys following the case generally understood it to mean that the state of Oklahoma lacks criminal jurisdiction over crimes committed by Indians on the Muscogee (Creek) Reservation. While it is true the decision specifically addressed sexual abuse of a minor child under the Major Crimes Act6 (which establishes exclusive federal jurisdiction over certain listed major crimes committed by Indians against Indians or non-Indians), attorneys with a basic understanding of criminal jurisdiction in Indian country knew the decision in McGirt would have a broader impact: The state of Oklahoma lacks criminal jurisdiction over all crimes committed by or against Indians in the Muscogee (Creek) Reservation.7 They also understood the McGirt analysis would inevitably lead to the same outcome regarding the other four of the “Five Civilized Tribes” (Five Tribes).8
That was the eventual outcome. Months after the McGirt decision and following several remands for evidentiary hearings to determine individual Indian status, location of the crime and reservation disestablishment, the Oklahoma Court of Criminal Appeals (OCCA) extended the reasoning in McGirt and held that the Cherokee Nation, Chickasaw Nation, Choctaw Nation and Seminole Nation had pre-statehood reservations that Congress had never diminished or disestablished.9 This meant the reservations of all Five Tribes, including fee lands therein, were “Indian country” for the purpose of criminal jurisdiction. Additionally, the OCCA issued opinions that held, as many predicted, that under the General Crimes Act,10 the state of Oklahoma also lacks criminal jurisdiction over all crimes in Indian country when committed by non-Indians against Indians or by Indians against non-Indians. The result of these decisions is that the state of Oklahoma lacks criminal jurisdiction over all crimes committed by or against Indians on the reservations of the Five Tribes.11 The state continues to exercise jurisdiction over offenses by non-Indians against non-Indians in Indian country.
Following the McGirt decision and its progeny from the OCCA, the Five Tribes began exercising criminal jurisdiction over crimes by Indians (and in certain limited circumstances, by non-Indians against Indians when authorized by federal law) across their reservations. To date, the Five Tribes combined have filed in excess of 10,000 criminal cases. Additionally, federal prosecutions of crimes committed by or against Indians on the tribes’ reservations have increased significantly post-McGirt, consistent with the federal government’s responsibility to address these crimes.12
The work the tribes did to expand their criminal justice systems has been widely covered in the media.13 Tribal police forces, prosecutors’ offices, courts and juvenile justice programs have grown at an exponential pace. The Cherokee Nation went from filing less than 100 criminal cases a year pre-McGirt, to almost 3,000 cases in the nine months following its reservation decision in the Hogner case. The Cherokee Nation Office of the Attorney General has gone from one full-time prosecutor to eight, and it is still expanding.
The changes following McGirt were many, but one that likely had the most notable impact on Indians within the reservations of the Five Tribes was the effect the decision had on simple traffic citations. After McGirt, traffic citations issued to Indian defendants on the reservations of the Five Tribes by state officers (namely county sheriff deputies and the Oklahoma Highway Patrol) could, arguably, now only address violations of the law of the tribe on whose reservation the offense took place if the law enforcement agency has a cross-deputization agreement with the tribe allowing the state officers to enforce tribal law14This is also true for traffic citations and misdemeanor ordinance violations issued by cities and towns, which are now also unenforceable against Indian defendants unless a city or town has entered into a cross-deputization agreement with the applicable tribe.
DESPITE THE HOLDING IN MCGIRT, SOME MUNICIPALITIES HAVE ASSERTED THEY HAVE JURISDICTION OVER CRIMES COMMITTED BY AND AGAINST INDIANS UNDER THE CURTIS ACT
The city of Tulsa and other municipalities have argued a cross-deputization agreement is not required to enforce criminal laws within municipalities (including some that already have cross-deputization agreements in place).15 Contrary to the position the city of Tulsa took in its amicus brief supporting Oklahoma in McGirt, Tulsa and other cities have asserted they have jurisdiction over crimes committed by and against Indians in Indian country based on an archaic provision in §14 of the 1898 Curtis Act that states, “All inhabitants of such cities and towns [organized under authority of §14], without regard to race, shall be subject to all laws and ordinances of such city or town governments, and shall have equal rights, privileges, and protection therein.”16 Based on this provision, a few cities and towns located within the reservations of the Five Tribes have maintained the position that the municipality still has criminal jurisdiction over offenses committed by or against Indians.
On Feb. 2, 2021, a Tulsa municipal judge, without the benefit of any briefing by Oklahoma’s tribal nations, issued an order holding, “Section 14 of the Curtis Act provides the City of Tulsa subject matter jurisdiction over all persons, without regard to race, including Native Americans, alleged to have committed ordinance violations within the corporate city limits of the City of Tulsa and within the boundaries of the Muscogee (Creek) Nation Reservation.”17 In so holding, the municipal judge denied the defendant’s motion to dismiss a shoplifting charge for lack of subject matter jurisdiction.18 This decision was not appealed to the OCCA. The municipal judge found the state appellate court would not have jurisdiction and suggested the appeal rested in federal district court. It is unknown whether there are other pending cases raising similar jurisdictional arguments.19
Although the only known court cases to date raising this argument involve municipal offenses in the Muscogee (Creek) Reservation, the Cherokee Nation has prepared a response to the argument adopted by the Tulsa municipal judge, including an emphasis on the history of the Curtis Act and the city of Tulsa, which is located in portions of the Muscogee (Creek) and Cherokee reservations. This detailed 20-page analysis is available on the Cherokee Nation’s website.20
The arguments relied upon by municipalities and the Tulsa municipal judge rest on the assertion that Section 14 of the Curtis Act was neither expressly nor impliedly repealed and still controls in the reservations of the Five Tribes within the state of Oklahoma. It is widely accepted that the Curtis Act was meant to force the Five Tribes to agree to allotment. The cities’ position ignores this historical underpinning and rests on incorrect assumptions that 1) municipalities, as subdivisions of the state, can possess powers the state cannot, 2) all the criminal laws that applied to Indian Territory before statehood continue to apply within the state of Oklahoma and 3) despite statehood and the subsequent adoption of the Constitution and laws of Oklahoma, municipalities have retained powers greater than the state’s powers. Their position also ignores the fact that appeals from municipal courts go to state courts, either to the OCCA for courts of record, such as Tulsa, or to state district courts for all other municipalities.21 Stretched to its conclusion, these arguments may result in a situation where state court judges are asked to hear appeals in a criminal matter over which the state has no subject matter jurisdiction as determined by the McGirt and OCCA rulings over crimes committed by or against Indians in Indian country. This is an absurd conclusion that cannot be correct.
The Curtis Act was meant to be temporary federal legislation used as a stopgap until Oklahoma Territory and Indian Territory were combined by Oklahoma statehood. The act provided provisional local law for towns that had been settled primarily by non-Indian settlers who did not own the land but had made improvements to it. The admission of the state of Oklahoma to the Union and the laws and Constitution of the state divested municipalities of any pre-statehood jurisdiction they may have had in their pre-statehood limited geographical jurisdiction. For example, the city of Tulsa had been incorporated by a federal court sitting in Vinita a few months before the Curtis Act was even passed. At that time, Tulsa was only a few blocks and did not even include any land within the Cherokee Nation.22 Additionally, because municipalities are creatures of state law, they can never possess powers, authority or jurisdiction the state does not. The city of Tulsa, as well as other former Indian Territory towns, are clearly subdivisions of the state. For instance, soon after statehood, Oklahoma’s first governor declared Tulsa to have “all the powers, duties, and privileges of a city of the first class under the laws of the state of Oklahoma.”23 On July 3, 1908, Tulsa adopted a charter under provisions of the Oklahoma Constitution. Its charter was approved by Gov. C. N. Haskell on Jan. 5, 1909. Tulsa has been operating as a subdivision of the state ever since.
The Tulsa Municipal Court cited City of Tacoma v. Taxpayers of Tacoma24 for the proposition that “the Supremacy Clause … empowers Congress to grant powers and/or funds to municipalities, even when such a grant is contrary to the wishes of the state, who created the municipality.”25 However, Tacoma involved a license granted to a municipality by Congress, contrary to a state’s wishes and without its authorization. In the case of criminal jurisdiction over crimes by and against Indians in Indian country, we are talking about a power the state of Oklahoma does not possess and cannot grant to or withhold from its municipalities.
ALTERNATIVES AND COOPERATION
Although the issue of municipal jurisdiction will ultimately be decided by an appellate court sooner rather than later, a ruling that municipalities do not have criminal jurisdiction over offenses by or against Indians in Indian country will not leave towns and cities in eastern Oklahoma unprotected or unfunded.
Even before the McGirt decision, the Cherokee Nation had robust partnerships with local law enforcement, including dozens of cross-deputization agreements with state and local law enforcement agencies, partnerships for training and interdisciplinary teams and donations of hundreds of thousands of dollars to local law enforcement in both money and equipment. Additionally, for years, the nation has maintained specialized police units, including SWAT, water dive and rescue teams, bomb squads, special operations and narcotics and has provided these services free of charge to local law enforcement for years.
Post McGirt, all the Five Tribes have sought various ways to work with state and local law enforcement to ensure all communities are safe. Probably the largest and most visible undertaking was the expansion of cross-deputization agreements.26 These agreements allow tribal and state/local police to “wear whatever hat” is needed at the time of arrest, booking, investigations and other stages in the proceedings to ensure successful investigations, arrests and prosecutions by the proper jurisdiction. Absent these agreements, state/local police in Indian country do not have jurisdiction to arrest Indian suspects or non-Indian suspects whose victims are Indian. Likewise, tribes do not have jurisdiction to arrest and prosecute non-Indians, with the exception of the special domestic violence jurisdiction acknowledged by Congress in the Violence Against Women Act.27 However, when tribes and state or local entities enter cross-deputization agreements, each is empowered to enforce the other’s law when necessary. The Cherokee Nation has 90 such agreements, ranging from the largest city and county in its reservation (Tulsa), to some of the very smallest towns. As of the writing of this article, in addition to cross-deputization agreements with numerous state and county law enforcement agencies, the Cherokee Nation has cross-deputization agreements with 55 cities and towns within the Cherokee Reservation.28 This means that in those towns and cities, both local and tribal law enforcement can respond to emergency calls, make arrests and investigate crimes.29 Cross-deputization and law enforcement cooperation have been the norm for years in the Cherokee Nation; McGirt simply expanded the scope of those operations.
Soon after McGirt, the Cherokee Nation addressed concerns regarding potential lost revenue from municipal criminal fines that could impact many of the small towns the nation partners with for efficient community policing. Many small towns support their law enforcement with revenue from traffic and misdemeanor citations. The Cherokee Nation began to explore ways in which it could share traffic and misdemeanor citation fines with towns and cities. In May 2021, after discussions with several different towns and cities diverse in size, location and government structure, the Cherokee Nation Tribal Council approved a resolution30 authorizing the nation to enter into municipal ticketing memorandums of agreement (MOAs) with towns and cities. These MOAs allow towns and cities to retain, in the form of a donation from the Cherokee Nation, all fees and fines associated with citations issued pursuant to Cherokee Nation law, subject to a $30 fee paid to the nation.31 On June 29, 2021, the Cherokee Nation and the town of Vian executed the first such MOA. Since then, 15 cities and towns have entered the agreements – the largest being the city of Owasso.32
The MOAs allow local law enforcement officers who are commissioned by the Cherokee Nation Marshal Service under a cross-deputization agreement to issue a Cherokee Nation traffic or misdemeanor citation but use the municipal court location and date to process the ticket. Defendants can pay the citation as they normally would: online (if the town or city has that capacity), by phone or in person before or on their court date. The town or city can also arrange payment plans under a standing order from the Cherokee Nation District Court. Once the fine and fees are paid in full, the town or city forwards the citations, guilty plea document and fee to the nation. The town or city retains the remainder as a donation to their general fund to use as their laws allow or require. The nation then opens a case in the defendant’s name, and the nation’s permanent records33 reflect that the individual was cited, plead guilty (or no contest) to a violation of the nation’s laws and paid a fee and fine to the nation. In the event a defendant wishes to challenge the citation, the town or city will refer the citation to the Cherokee Nation District Court for prosecution. This unique arrangement allows the nation to continue to rely on local police to ensure public safety throughout the reservation and allows towns and cities to avoid revenue interruptions. These MOAs are new and unique, and the nation and the towns and cities that have entered the MOAs continue to work through the practical matters and logistics associated with them. The MOAs are also a great example of collaboration and cooperation between the nation and the political subdivisions of the state.
Another area in which the nation is working with towns and cities is through detention agreements. The Cherokee Nation does not own or operate any adult or juvenile detention facilities. The nation has contracted with several county jails and juvenile detention facilities for both pre-trial and post-conviction incarceration of the nation’s arrestees and inmates. Recently, the nation has also partnered with towns and cities for detention agreements. To date, the nation has entered detention agreements with the city of Tahlequah and the town of Muldrow. These agreements allow the town or city to house individuals who are being held on the nation’s charges or have been convicted and sentenced to incarceration in the nation’s courts. In exchange, the nation pays a daily rate per detainee to the town or city. These agreements allow the towns and cities to use underutilized bed space, raise revenue and allow the nation to safely house detainees without the need to build additional jails.
WHAT DOES THE FUTURE HOLD?
Although the Curtis Act argument and alternatively the cross-deputization agreements and MOAs are focused on addressing criminal jurisdiction, many questions remain regarding civil regulatory jurisdiction of municipalities on Indian reservations. The nation has received inquiries from municipalities with questions about taxes, dog ordinances, fire codes, nuisance and abatement, vagrancy, building codes, etc. While some of these questions may have easy answers, others are more complicated. However, as shown by the cross-deputization agreements and the municipal ticketing MOAs, if towns and cities within the Cherokee Nation are willing to come to the table and have a discussion, there are not many problems that cannot be solved together.
ABOUT THE AUTHOR
Chrissi Ross Nimmo is a citizen of and deputy attorney general for the Cherokee Nation. She has practiced with the nation for 13 years and supervises a staff of 15 attorneys. She resides in Tahlequah on the Cherokee Nation Reservation with her husband, Jim, seven-year-old twins, Mattie and James, and four-year-old Emmy.
- McGirt v. Oklahoma, 140 S. Ct. 2452.
- There is not a statutory definition of “Indian” in the federal statutes addressing Indian country criminal jurisdiction, but the leading test, recently reaffirmed by the Oklahoma Court of Criminal Appeals in Parker v. State 2021 OK CR 17, is that the individual must have “some Indian blood” and be “recognized as an Indian by a tribe or the federal government.”
- Act of June 28, 1898, ch. 517, 30 Stat. 495 (Curtis Act).
- Interestingly, both the state of Oklahoma and the city of Tulsa in their briefing in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), agreed with the position taken by the tribes today that if the Creek Reservation was never disestablished, then municipalities did not have criminal jurisdiction over Indians. The state argued, “Rendering Indians subject to municipal law but immune from state law would be irrational, as municipalities are creatures of state law.” Brief of Appellee, McGirt v. Oklahoma, Case No. 18-952, at 28-29 (March 13, 2020); Likewise, the city of Tulsa argued, “At present, Tulsa’s Police Department has full jurisdiction to protect Tulsans and enforce city and state law in all but a few scattered plots of land. But if the entire City is ‘Indian country,’ state criminal jurisdiction would be stripped in any crime involving an Indian perpetrator or victim.” McGirt Tulsa Amicus at 29. 65 U.S. 463, 465 n.2 (1984).
- McGirt v. Oklahoma, 140 S. Ct. 2452.
- Major Crimes Act, 18 U.S.C. §1153.
- See Indian Country Criminal Jurisdiction Chart by Arvo Q. Mikkanen, assistant U.S. attorney and tribal liaison, U.S. Attorney’s Office, Western District of Oklahoma: www.justice.gov/usao-wdok/page/file/1049076/download.
- The “Five Civilized Tribes” refers to Cherokee Nation, Chickasaw Nation, Choctaw Nation of Oklahoma, Muscogee Creek Nation and Seminole Nation.
- Hogner v. State, 2021 OK CR 4 (Cherokee Reservation); Sizemore v. State, 2021 OK CR 6 (Choctaw Reservation); Bosse v. State, 2021 OK CR 3 (Chickasaw Reservation) (withdrawn and vacated regarding retroactivity of McGirt by State ex rel. Matloff v. Wallace, 2021 OK CR 21); Grayson v. State, 2021 OK CR 8. And the OCCA has recently extended the McGirt analysis to the Quapaw Nation, finding the tribe’s reservation was never disestablished in State v. Lawhorn, 2021 OK CR 37.
- General Crimes Act, 18 U.S.C. §1152.
- The state of Oklahoma continues to challenge the existence of the reservations of the Five Tribes as well as alleging it retains concurrent jurisdiction (with the federal government) over crimes committed by non-Indians against Indians in Indian country. Oklahoma has filed dozens of petitions for writ of certiorari before the United States Supreme Court, with the leading case involving the Cherokee Nation Reservation. See Oklahoma v. Castro-Huerta, No. 21-429, Sept. 21, 2021. Most of those cases were set for conference on the Supreme Court’s docket on Jan. 7, 2021.
- Tribes also have jurisdiction over crimes that are typically classified as felonies under federal or state law, but tribes’ sentencing authority is limited by the Indian Civil Rights Act, 25 U.S.C.§1302.
- https://bit.ly/TulsaWorldMcGirt; https://bit.ly/OklahomanMcGirt.
- Tribal cross-deputization agreements for all tribes and law enforcement in the state can be found here: www.sos.ok.gov/gov/tribal.aspx.
- For a detailed analysis of that position, see paper by Oklahoma Municipal Assurance Group General Counsel Matt Love, available here: www2.omag.org/2020-OAMA-McGirt.pdf. Mr. Love drafted this article for the Dec. 10, 2020, Virtual Seminar and Business Meeting of the Oklahoma Municipal League and the Oklahoma Association of Municipal Attorneys. Mr. Love gave permission to share his paper. I do not agree with the position but want to provide the opposing view. Mr. Love asked I note there have been many additional McGirt related court decisions in the year since the paper was presented, including decisions on the reservations of the other four tribes and retroactive application.
- 30 Stat. 495. The author would also point out that the same section of the Curtis Act also says that only male inhabitants can vote, the law of the state of Arkansas applies and intoxicating liquors cannot be sold.
- See City of Tulsa v. Shaffer, Case No. 6108204, Memorandum and Order (Tulsa Municipal Court Feb. 2, 2021).
- There are two pending suits where those with prior convictions are challenging the collection of fees by counties and municipalities: Pickup v. District Court of Nowata County, Civ. No. 20-346 (N.D. Okla.); Nicholson v. Stitt, No. 119,270 (Okla.) (In Nicholson, the district court mentioned §14 of the Curtis Act, without discussion, in the order granting the defendant’s motion to dismiss. That case is now on appeal).
- The legal analysis was co-authored by Patti Ghezzi and Susan Work and is located at https://attorneygeneral.cherokee.org/media/mg1duasc/curtis-act-memorandum.pdf. Ms. Work is an outstanding Indian legal scholar with specific expertise on the history of the Five Tribes and the state of Oklahoma. Patti Ghezzi is a retired federal public defender who was involved in the defense of Patrick Murphy – the case that initially raised the “Indian country” jurisdictional issue and paved the way for McGirt. The Cherokee Nation and I, particularly, are indebted for the work they have done prior to and following the McGirt and Hogner decisions.
- 11 O.S. §27-129 and 11 O.S. §28-128.
- See Curtis Act Memo, supra, n. 19.
- See Proclamation by C. N. Haskell, governor of Oklahoma.
- 357 U.S. 320 (1958).
- Shaffer, Case No. 6108204, p. 8, quoting Tacoma, 357 U.S. 320.
- The law enforcement cross-deputization agreements (and other tribal-state agreements and compacts) are all available on the Oklahoma Secretary of State website: www.sos.ok.gov/gov/tribal.aspx.
- Violence Against Women Act, VAWA, Pub. L. No. 113-4, Title IX, §904(a)(3), 127 Stat.
- 121 (March 7, 2013) (codified at 25 U.S.C. §1304(a)(3)).
- In fact, the Cherokee Nation marshal is not aware of a single city or town that is wholly or partially within the Cherokee Nation Reservation that does not have a cross-deputization agreement with the nation.
- If a crime other than domestic violence is committed by a non-Indian against an Indian, only the federal government has jurisdiction. In those cases, the arresting state or tribal officer must also hold a federal commission. All Cherokee Nation law enforcement offices hold the federal commission and now many state and local officers do as well.
- This resolution was required because the Cherokee Nation Constitution requires all donations be approved by the Cherokee Nation Tribal Council, Article X, Section 7.
- The $30 fee matches what state law requires to be paid for municipal citations issued. 10 O.S. §§1313.2-1313.3. (This fee required by state law on municipal tickets further underscores the lack of municipal jurisdiction over Indians.)
- All municipal agreements available here: www.sos.ok.gov/gov/tribal.aspx. Any town or city in the Cherokee Nation Reservation interested in entering the MOA can email me at Chrissifirstname.lastname@example.org.
- The nation continues to work with the Oklahoma Department of Public Safety to try to ensure the nation’s traffic citations will be recorded by the state for driver’s license suspension and revocation purposes and insurance purposes, but that likely requires a change to state law 10 O.S. 6-203 because the law only refers to convictions from other “states.” However, the automatic administrative suspension of a driver’s license for a DUI under 47 O.S. 754 is valid against Indians because that license suspension is based on officer affidavit, not a conviction.
Oklahoma Bar Journal – OBJ 93 Vol 3 (March 2022)