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Muscogee Nation sues City of Tulsa, accusing it of violating McGirt precedent

Downtown Tulsa
Mick Haupt
Downtown Tulsa

This post was updated with more reporting on Nov. 16 at 10:12 a.m.

The Muscogee Nation is suing the City of Tulsa, accusing the city of unlawfully prosecuting tribal citizens despite the McGirt v. Oklahoma ruling.

The lawsuit names Tulsa Mayor G.T. Bynum, Police Wendell Franklin and City Attorney Jack Blair. The nation is seeking injunctions against the city because they say Tulsa continues to prosecute Native people for traffic offenses committed within the tribal nation's reservation boundaries.

This is despite a 10th circuit ruling in Hooper v. City of Tulsa telling local police Native people must be prosecuted in tribal court.

Muscogee Nation writes in its filing that between the beginning of the year and through the end of October, Tulsa hasn’t referred a single traffic citation to tribal courts, while other municipalities in the reservation have filed 1,083.

"We feel that that is a blatant oversight and they are ignoring the law,” Muscogee Nation Attorney General Geri Wisner

“Our Nation has always been a leader in the fight to defend tribal sovereignty,” Principal Chief David Hill said in a written statement.” We will not stand by and watch the City disregard our sovereignty and our own laws by requiring Muscogee and other tribal citizens to respond to citations in Tulsa city court because of the City’s make-believe legal theories.”

The Supreme Court has ruled in previous cases that state governments don't have power to prosecute Native people for crimes committed within Indian country.

The complaint filed by the Muscogee Nation cited several cases-including one decided by the 10th circuit in 2015

“The policy of leaving Indians free from state jurisdiction and control is deeply rooted in this Nation’s history," Muscogee Nation wrote in its legal filings, quoting a 1997 case in which the Ute Tribe filed for a permanent injunction against the state of Utah from exercising both criminal and civil jurisdiction.

The Curtis Act no longer applies

In Hooper v. City of Tulsa, the city took up a pre-statehood law to argue its right to maintain civil jurisdiction over Indians within its city limits.

In the spring of 2023, the City of Tulsa argued before the 10th circuit court of appeals in Denver that it still maintained the right to prosecute Indians within its city limits because of a pre-statehood law known as the Curtis Act. That’s an 1898 Indian Territory statute that allowed for prosecution of Indian and non-Indian inhabitants. When Oklahoma became a state-the act ceased to be relevant.

Yet, Tulsa argued that section 14 of that law still applied, giving them the authority to ticket individuals.

The 10th circuit rejected that argument. Yet, as the Muscogee Nation alleges in their brief, Tulsa, "continued to assert criminal jurisdiction over Indians within the external boundaries of the Creek Reservation under that provision."

Shortly after the decision was announced in early summer, Tulsa said it would appeal to the US Supreme Court for relief. It sought a temporary injunction to maintain jurisdiction under section 14 of the Curtis Act. That also failed.

In their brief to the 10th Circuit, Muscogee Nation says that the City of Tulsa is advancing the claim of jurisdiction under the 2022 Castro-Huerta v. Oklahoma, which says that states do have the right to prosecute non-Indians when they commit crimes against Indian people.

That reasoning is flawed, claims Muscogee Nation, because the traffic infractions are offenses committed by Native people on Native land.

"Tulsa’s prosecution of Indians for conduct occurring within the Creek Reservation

constitutes an ongoing violation of federal law and irreparably harms the Nation’s sovereignty by subjecting Indians within the Creek Reservation to laws and a criminal justice system other than the laws and system maintained by the Nation. Doing so impermissibly interferes with the Nation’s federally protected rights of self-government,” Muscogee attorneys wrote.

The city issued a press release in late July saying it will "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."

Working together?

Muscogee Nation AG Wisner says her office has tried to work with city officials to resolve any issues over who has the power to prosecute traffic offenses.

“However, we walk away unsuccessful in trying to reach any kind of agreement,” she said. “It's about tickets. It's about traffic. And at the end of the day, it is simply about money.”

Wisner said her office met with city officials – including Chief of Police Wendell Franklin – to try and resolve some of the issues over traffic citations.

"We were unsuccessful in being able to make those conversations and those attempts become fruitful," Wisner said.

City officials say they’re committed to working with the tribes, reiterating Bynum’s comments at a recent city address. However, the city continues its fight to collect traffic tickets from Native drivers in federal court.

In email communication to KOSU, Michelle Brooks, the city's director of communications wrote that, "[a]s Mayor Bynum stated two weeks ago in his State of the City address, he is eager to work with tribal partners to resolve these issues and render litigation unnecessary."

Bynum said he had no desire to continue to litigate and said he wanted to work with tribal nations on the issue of jurisdiction. He said he was tired of litigating the issue and waiting for Congress and the state of Oklahoma to come up with solutions.

"Tulsa exists in the Muscogee Creek, Cherokee, and Osage reservations. The Supreme Court has settled this not once but twice in recent years. I respect the decision, and honestly am excited that we can be part of those reservations.

“The challenge we face is that the recent court rulings have thrown all of the systems of governmental interaction which were developed since statehood into confusion… We are now the largest city in a reservation in America, so let’s celebrate that. Let’s make it a benefit rather than acting like it is a problem, " Bynum told the audience.

In their injunction for relief, Muscogee Nation says that just a week after the decision in Hooper v. City of Tulsa, the city prosecuted another traffic violation cited both section 14 of the Curtis Act and Castro-Huerta for their basis of jurisdiction.

The municipal court rejected those arguments. The city of Tulsa is currently appealing in that case. They've also continued to assert jurisdiction in another case involving Governor Stitt's brother.

When asked about claims Muscogee Nation made about lack of cooperation and success between the city and the tribal nation, Brooks said the city would not comment.

In the meantime, Muscogee Nation attorney general Geri Wisner said they are seeking relief on this issue and wants to work with the city on any issue-including traffic citations.

"The relief would be having Tulsa abide by and recognize the federal law. I don't think it's that difficult," Wisner said. "Tulsa is part of the Muscogee Creek Nation…We want to work with them. They are named after us. That is our land, our city. And working with us is the best road ahead."

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Allison Herrera covered Indigenous Affairs for KOSU from April 2020 to November 2023.
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