Oklahoma Bar Journal
Evaluating the Jurisdiction of Municipal Courts After Castro-Huerta
By Matthew Love
As political subdivisions of the state, municipalities typically rely on the state’s sovereign authority when prosecuting ordinance violations in municipal court. Following McGirt v. Oklahoma,1 municipalities within the reservations of the Five Civilized Tribes2 may no longer rely on the state’s preexisting sovereignty when prosecuting Indians3 for ordinance violations. In response, many of those municipalities take the position that they may lawfully assume jurisdiction over local ordinance violations by Indians pursuant to §14 of the Curtis Act.
This argument has been the subject of criticism4 and has not yet been addressed by the appellate courts.5 The argument was originally developed based on a prior understanding of how criminal jurisdiction within Indian country is evaluated. The United States Supreme Court recently modified that jurisdictional evaluation in Oklahoma v. Castro-Huerta.6 This article seeks to provide an overview of the evaluation of the jurisdiction of municipal courts within the reservations of the Five Civilized Tribes in light of Castro-Huerta.
SUBJECT MATTER JURISDICTION OF MUNICIPAL COURTS IN INDIAN COUNTRY
Subject matter jurisdiction goes to a court's authority to hear a given type of case.7 The subject matter jurisdiction of Oklahoma municipal courts over ordinance violations is limited to offenses that are not declared to be felonies under state statutes.8 For offenses committed by an Indian in Indian country, the court’s subject matter jurisdiction is subject to the Castro-Huerta preemption analysis.
Indian country is a part of, not separate from, the state.9 Unless preempted, the 10th Amendment guarantees that state sovereignty includes the right to exercise the state’s inherent, preexisting jurisdiction over all its territory, including Indian country.10 The exercise of preexisting jurisdiction can be preempted if the exercise of that jurisdiction 1) has been preempted by federal law or 2) would unlawfully infringe on tribal self-government.11 To the extent the exercise of preexisting jurisdiction would unlawfully infringe on tribal self-government, jurisdiction may nevertheless be lawfully assumed if authorized by Congress. Congress has authorized the lawful assumption of jurisdiction through Public Law 28012 and, prior to that, through one-off enactments.13
Except for the Major Crimes Act,14 federal law does not preempt the state from exercising preexisting jurisdiction over crimes by or against Indians within Indian country.15 As a result, the preemption analysis turns on whether the exercise of state jurisdiction would unlawfully infringe on tribal self-government. This is evaluated utilizing the Bracker16 balancing analysis, which weighs the impact the exercise of state jurisdiction would have on tribal, federal and state interests.
In Castro-Huerta, the court held that the exercise of state jurisdiction over crimes committed by non-Indians against Indians in Indian country would not unlawfully infringe on tribal self-government.17 More significantly, by shifting from a bright line approach (i.e., that states lack jurisdiction over all crimes by or against Indians occurring in Indian country) to a Bracker analysis, the court potentially opened the door to future challenges based on the argument that the exercise of state jurisdiction over an Indian who committed a crime outside of their own tribe’s reservation but (within the reservation of another tribe) would not constitute an unlawful infringement on tribal self-government.18 This argument, if adopted by the court, would likely require the court to overrule numerous prior precedents that have made clear that states lack jurisdiction over crimes by Indians in Indian country.19
MUNICIPAL COURT JURISDICTION OVER INDIANS IN INDIAN COUNTRY
The evaluation of whether municipal courts have jurisdiction over Indians for ordinance violations in Indian country must start with an evaluation of the state’s preexisting jurisdiction. If preexisting jurisdiction is preempted, municipal courts may only exercise jurisdiction over those offenders if Congress has authorized the lawful assumption of that jurisdiction.
As noted above, Castro-Huerta might have opened the door for an argument in a future case that the states have preexisting jurisdiction over crimes committed by an Indian within another tribe’s reservation. That argument, while intriguing, is one that must be resolved by the United States Supreme Court and not by municipal judges. The court’s prior precedents make clear that states lack preexisting jurisdiction over crimes committed by Indians in Indian country. The court might have signaled a potential interest in revisiting those precedents,20 but it did not do so in Castro-Huerta.21 Unless and until the court reconsiders those precedents, municipal courts should proceed very cautiously before relying solely on the state’s preexisting jurisdiction when an Indian is accused of violating a local ordinance.
Lawfully Assumed Authority/§14 of the Curtis Act
The state’s preexisting jurisdiction likely remains preempted as to crimes by Indians within Indian country. As such, municipal courts within the reservations of the Five Civilized Tribes may only exercise jurisdiction over Indians for ordinance violations if they may lawfully assume such jurisdiction pursuant to an act of Congress.22 Many municipalities responded to McGirt by taking the position that §14 of the Curtis Act of 1898 authorizes their courts to lawfully assume jurisdiction over those ordinance violations. Section 14 provided, “All inhabitants of such cities and towns, without regard to race, shall be subject to all laws and ordinances of such city or town governments[.]”23
The Curtis Act was a comprehensive and special statute governing matters throughout Indian Territory.24 As to the reference to “race,” one year earlier, a Congressional enactment had applied the local, territorial laws in effect within the Indian Territory “to all persons therein, irrespective of race[.]”25 The Supreme Court interpreted that language as expressing Congress’s clear intent to apply those laws to Indians as well as non-Indians.26 Section 14 expressed Congress’s clear intent to subject Indians to municipal ordinances.
While §14 was adopted prior to Oklahoma becoming a state, Congress clearly intended that §14 would continue to authorize municipalities within the reservations of the Five Civilized Tribes to lawfully assume jurisdiction over Indians for ordinance violations post-statehood. In enacting §14, Congress was expressly contemplating that the lands of the Five Civilized Tribes would be included within a future state. Section 29 of the Curtis Act contained Congress’s approval of an allotment agreement with the Chickasaw and Choctaw nations. Within that agreement, Congress agreed to allow those two nations to maintain their governments for eight more years with the following understanding: “This stipulation is made in the belief that the tribal governments so modified will prove so satisfactory that there will be no need or desire for further change till the lands now occupied by the Five Civilized Tribes shall, in the opinion of Congress, be prepared for admission as a State to the Union.”27
Congress’s intent to retain the authorization in §14 in full force and effect is further evidenced by the fact that every allotment agreement approved by the tribes on or after the date the Curtis Act was adopted included express language whereby the tribes expressly agreed that §14 would remain in full force and effect within their lands.28 The authority for cities and towns within the reservations of the Five Civilized Tribes to lawfully assume jurisdiction over ordinance violations by Indians is thus founded both on §14 of the Curtis Act itself as well as the consent to §14 by the tribes evidenced in those agreements with the United States.
Sections 13 and 21 of the Oklahoma Enabling Act29 replaced the existing territorial laws with the first set of local state laws applicable in the new state of Oklahoma. This shift in applicable local laws did not affect §14 of the Curtis Act. When Congress adopted local, territorial laws and, later, when it admitted the Oklahoma and Indian territories as a new state and established the first set of local state laws, Congress exercised authority granted to it by Article IV, Section 3, of the United States Constitution.30 Those territorial laws were not laws of the United States but rather local laws, applicable only within the territory.31 By contrast, when Congress applied those territorial laws to Indians and subjected Indians to ordinances adopted by cities and towns within the borders of the Five Civilized Tribes, Congress exercised authority granted to it by Article I, Section 8, of the United States Constitution.
Sections 13 and 21 in the Enabling Act affected only the local territorial laws. Congress was merging two territories with two distinct sets of local territorial laws into one state. As such, pursuant to Article IV, Congress had to designate which body of local laws would be the first set of state laws.32 The relevant provision from §14 was not a local law applicable in the Indian territory. It was an exercise of Article I power, which authorized the enforcement of local ordinances as to Indians. The shift in local laws affected the general organization and authority of the affected municipalities.33 It did not alter Congress’s exercise of Article I authority authorizing those municipalities to lawfully assume jurisdiction over ordinance violations by Indians.34 Congress could repeal the authorization from §14, but to date, it has never done so.
It is important to note, in closing, that the appellate courts have yet to resolve the question of whether §14 continues to grant municipalities within the reservations of the Five Civilized Tribes the authority to lawfully assume jurisdiction over ordinance violations by Indians. The relevant provision from §14 was a unique enactment by Congress applicable to a unique area of the United States at the time of its enactment. As such, the appellate courts have never had occasion to consider this kind of unique legal argument. Until the appellate courts resolve this issue, hundreds of cities and towns across the reservations of the Five Civilized Tribes will be forced to decide whether to avail themselves of this argument or to decline to enforce the local ordinances their inhabitants have adopted as to those inhabitants who are Indian.
ABOUT THE AUTHOR
Matthew Love serves as general counsel for the Oklahoma Municipal Assurance Group (OMAG), a governmental risk pool formed by interlocal agreements executed by hundreds of Oklahoma cities and towns. He also serves as city attorney for the city of Warr Acres, city prosecutor for The Village and as legal advisor to the Oklahoma Association of Chiefs of Police (OACP).
- 140 S.Ct. 2452 (2020).
- Indian country includes all land within the borders of an Indian reservation. 18 U.S.C. §1151. As Chrissi Ross Nimmo noted in endnotes 8 and 9 of her OBJ article, infra at n. 5, the courts have recognized the continued existence of the reservations of the Five Civilized Tribes (Cherokee Nation, Chickasaw Nation, Choctaw Nation of Oklahoma, Muscogee Creek Nation and Seminole Nation) in light of McGirt.
- A person is legally Indian if 1) they have some Indian blood and 2) they are recognized as an Indian by a tribe or the federal government. Parker v. State, 2021 OK CR 17, ¶35, 495 P.3d 653, 665 citing United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012).
- I would encourage readers to review Chrissi Ross Nimmo’s article in the March 2022 bar journal, wherein she offers an opposing view on this topic. Chrissi Ross Nimmo, “Oklahoma Cities and Towns in Indian Country are not Immune From the U.S. Supreme Court’s Holding in McGirt,” OBJ 93 Vol 3 (2022), https://bit.ly/3LS7EJu.
- United States District Judge William Johnson and Okmulgee County District Judge Pandee Ramirez both dismissed class action lawsuits against municipalities based (in whole or in part) on §14 of the Curtis Act. Hooper v. City of Tulsa, No. 21-CV-165-WPJ-JFJ, 2022 WL 1105674 (N.D. Okla. Apr. 13, 2022) and Nicholson et al v. City of Beggs et al, Okmulgee County Dist. Court Case No. CJ-20-94, Order Dismissing Case (Nov. 24, 2020). The Oklahoma Supreme Court affirmed Judge Ramirez’s order on other grounds, expressly declining to address the Curtis Act argument. Nicholson v. Stitt, 2022 OK 35, fn.6, 508 P.3d 442.
- 142 S.Ct. 2486 (2022).
- United States v. Morton, 467 U.S. 822, 828 (1984).
- 11 O.S. §14-111(B)(1) & (C). There are additional restrictions on the subject matter jurisdiction of municipal courts over certain types of misdemeanors. For example, a municipal court not of record has no subject matter jurisdiction over misdemeanor driving under the influence (DUI). See 47 O.S. §11-902(C)(7).
- Castro-Huerta, 142 S.Ct. at 2493.
- Castro-Huerta, 142 S.Ct. at 2494.
- 25 U.S.C. §1321. Oklahoma has never sought or obtained jurisdiction pursuant to PL 280.
- See Act of July 2, 1948, ch. 809, 62 Stat. 1224 (25 U.S.C. §232) (New York); Act of June 30, 1948, ch. 759, 62 Stat. 1161 (Iowa), repealed, Act of Dec. 11, 2018, Pub. L. 115–301, 132 Stat. 4395; Act of May 31, 1946, ch. 279, 60 Stat. 229 (North Dakota).
- 18 U.S.C. §1153 (authorizing federal jurisdiction over 13 enumerated offenses when committed by one Indian against another Indian). In dicta, the majority appeared to question whether the MCA actually preempts the exercise of state jurisdiction over Indian-on-Indian major crimes. Castro-Huerta, 142 S.Ct. at 2496, “even assuming that the text of the Major Crimes Act provides for exclusive federal jurisdiction over major crimes committed by Indians in Indian country.” The court cited United States v. John, 437 U.S. 634 (1978) and Negonsott v. Samuels, 507 U.S. 99 (1993), as support for its statement that the preemptive effect of the MCA was an assumption – a curious move given that those cases establish that point as precedent. To the extent that the majority was suggesting its willingness to revisit those prior precedents, there would be little effect on municipal court jurisdiction should those prior precedents be modified or overruled in the future. The MCA only applies to 13 offenses, almost all of which are felonies in Oklahoma. As such, municipal courts would not have jurisdiction over those felony major crimes even if the Supreme Court revisited its prior MCA holdings.
- Id. at 2494-99 (crimes by non-Indians with Indian victims). The court noted in footnote 2 that federal law does not preempt the state from exercising jurisdiction over crimes committed by an Indian against a non-Indian, and any preemption would have to be the result of the second step in the Castro-Huerta analysis.
- White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).
- Id. at 2499-2502. States have long possessed the unquestioned authority to prosecute crimes involving only non-Indians. United States v. McBratney, 104 U.S. 621 (1882).
- See e.g., Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1172 (10th Cir. 2012) “When Indians (‘who’) act outside of their own Indian country (‘where’), including within the Indian country of another tribe, they are subject to non-discriminatory state laws otherwise applicable to all citizens of the state.”
- See e.g., United States v. Kagama, 118 U.S. 375 (1886).
- Consider footnote 9 from Castro-Huerta, where the majority characterized Justice Gorsuch’s suggestion that, “States may not exercise jurisdiction over crimes committed by Indians against non-Indians in Indian country” as being “not accurate.” In doing so, however, the court made clear that it was not addressing that issue.
- Castro-Huerta, 142 S.Ct. at 2521 (Gorsuch, J, dissenting) “The Court may choose to disregard our precedents, but it does not purport to overrule a single one.”
- Castro-Huerta, 142 S.Ct. at 2500 (Public Law 280 exists to grant state jurisdiction, where its exercise would otherwise be preempted as an unlawful infringement on tribal self-government, citing Bracker).
- Act of June 28, 1898, §14, 30 Stat. 499-500.
- U.S. v. City of McAlester, 604 F.2d 42 (10th Cir. 1979).
- Act of June 7, 1897, 30 Stat. 83.
- See Marlin v. Lewallen, 276 U.S. 58, 62 (1928) and Stewart v. Keyes, 295 U.S. 403, 409 (1935), both interpreting, when Congress stated in an 1897 enactment, Act of June 7, 1897, 30 Stat. 83, that the territorial laws in place within the Indian territory would apply to all “irrespective of race,” Congress was intending to state that the laws would apply to Indians as well as non-Indians.
- Act of June 28, 1898, §29, 30 Stat. 512.
- Act of June 28, 1898, §29, 30 Stat. 505 (Chickasaw and Choctaw nations); Act of March 1, 1901, §41, 31 Stat 872 (Muscogee (Creek) Nation); Act of July 1, 1902, §73, 32 Stat. 727 (Cherokee Nation).
- Act of June 16, 1906, §13 and §21, 34 Stat. 275 and 277-78.
- Shulthis v. McDougal, 225 U.S. 561, 571 (1912).
- United States v. Pridgeon, 153 U.S. 48 (1894).
- Jefferson v. Fink, 247 U.S. 288, 292-93 (1918).
- Lackey v. State, 1911 OK 270, ¶3, 116 P. 913.
- For this reason, cities and towns incorporating within the borders of the Five Civilized Tribes post-statehood are authorized to lawfully assume jurisdiction over ordinance violations by Indians. This is true both because of §14 itself and because each of the tribes agreed to maintain §14 in full force and effect within their respective reservations.
Originally published in the Oklahoma Bar Journal – OBJ 93 Vol 9 (November 2022)