Gorsuch Stays Tribal Jurisdiction Lawsuit

WASHINGTON — Justice Neil Gorsuch temporarily stayed a ruling by the 10th U.S. Circuit Court of Appeals that prevented the city of Tulsa, Oklahoma, from enforcing municipal laws against Native Americans.

The litigation harkens back to 2018 when Justin Hooper, a member of the Choctaw Nation living in Tulsa, was given a speeding ticket and fined $150.

Hooper paid the fine.

However, two years later, the U.S. Supreme Court ruled in McGirt v. Oklahoma that land reserved for the Creek Nation in 1856, including Tulsa and a large swath of the rest of the state, remains “Indian country” in the eyes of the law.

In McGirt, a case involving a sex offender, the high court ruled that Oklahoma lacked jurisdiction to prosecute Jimcy McGirt and that only the federal government could try certain major crimes committed by enrolled members of a tribe on reserved land.

Based on that ruling, Hooper sought to have the record of his speeding conviction thrown out and his $150 returned.

The Tulsa Municipal Court denied Hooper’s request, citing an 1898 statute — the Curtis Act — that allows Tulsa’s municipality to have authority and jurisdiction over tribal land. 

Believing that made no sense in light of the Supreme Court’s ruling in McGirt, Hooper then turned to the 10th Circuit, which earlier this month reversed the municipal court’s decision.

In deciding in favor of Hooper, the 10th Circuit found that Section 14 of the Curtis Act — the provision that gave Tulsa jurisdiction over Native Americans in the city — was valid when Tulsa was officially part of Indian Territory.

However, the court said that jurisdiction ended when Tulsa reorganized as a city under Oklahoma law in 1908.

“Mr. Hooper does not dispute that Section 14 provided Tulsa with jurisdiction over municipal violations committed by all its inhabitants, including Indians at the time it was enacted, as Tulsa was a municipality in the Indian Territory,” the court wrote.

“Mr. Hooper argues that once Tulsa reorganized under Oklahoma law, Section 14 no longer applied to the city. We agree,” it said.

Immediately after the appellate ruling was handed down, Oklahoma’s Republican Gov. Kevin Stitt said while he was not surprised, he was “extremely disappointed and disheartened by the decision.”

The 10th Circuit’s decision, he said, undermined the city of Tulsa and would have a detrimental impact on enforcing laws within the city.

“This is exactly what I have been warning Oklahomans about for the past three years,” said Stitt, who has often found himself at loggerheads with the state’s Native American communities.

“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,” the governor said. “This is just the beginning. It is plain and simple, there cannot be a different set of rules for people solely based on race.”

Native Americans, meanwhile, applauded the decision.

“We’re pleased to see that the 10th Circuit has applied the correct rule of law concerning the questions before it regarding the Curtis Act,” said Chief Chuck Hoskin Jr. of the Cherokee Nation.

“We can now move forward, expand resources and continue to flourish together with our partners rather than wasting anymore time challenging the sovereign rights of tribes,” the chief said.

Oklahoma’s emergency petition went to Gorsuch because he has jurisdiction over the 10th Circuit. As it happens, he was also the author of the majority opinion in McGirt.

His stay, which will remain in effect until 5 p.m. on Wednesday, Aug. 2, is intended to give the state time to file a formal request asking the Supreme Court to overturn the circuit’s decision.

“I am hopeful that the U.S. Supreme Court will rectify this injustice, and the city of Tulsa can rest assured my office will continue to support them as we fight for equality for all Oklahomans, regardless of race or heritage,” Stitt said.

Dan can be reached at [email protected] and @DanMcCue