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City of Tulsa argues it has the ability to prosecute Native people under pre-statehood law

The U.S. Tenth Circuit Court of Appeals heard a case that challenges the landmark McGirt v. Oklahoma decision Thursday in Denver.

The City of Tulsa is citing a law that predates statehood to challenge Tribal Nations’ jurisdiction in city limits.

The case all hinges on a traffic ticket.

In 2018 Choctaw citizen Justin Hooper was fined $150 by Tulsa Police for speeding. He paid the ticket, but in 2020, shortly after the landmark McGirt v. Oklahoma decision said that the Muscogee Nation's reservation was never disestablished – he filed for post-conviction relief, arguing the City of Tulsa didn’t have jurisdiction in his case.

A municipal court denied post-conviction relief saying that the city does have the right to fine Hooper based on a pre-statehood law known as the Curtis Act.

The Curtis Act was a way to force allotment. It created a framework for non-Indian ownership in present day Oklahoma, ultimately of tribal lands. The law helped weaken tribal governments and subjected Native people to federal law, later paving the way for statehood of what was previously Indian territory.

The central question in the Hooper case is whether or not the Curtis Act, which is federal law, still applies to the City of Tulsa to give them jurisdiction over a tribal nation citizen inside a nation’s boundaries

Sara Hill is Attorney General for the Cherokee Nation, her tribe filed an amicus brief in the case along with the Muscogee Nation, the Chickasaw Nation, the Choctaw Nation, the Seminole Nation and the Quapaw Nation.

"The Curtis Act doesn't apply because when Oklahoma became a state, those municipalities became creatures of state law," Hill told KOSU.

Muscogee Nation’s amicus brief echoed Cherokee Nation’s, arguing against Tulsa’s assertion of jurisdiction over tribal citizens with its boundaries.

“The law is clear that the City of Tulsa’s claims have no legal merit,” Muscogee Nation’s Attorney General Geri Wisner said in a statement. “The case is just another novel attempt to undermine the criminal jurisdiction restored to tribes in the historic McGirtcase.”

Hooper's lawyer John Dunn argued the same thing in front of the 10th Circuit on Thursday

"We contend that the Curtis Act, which was also known as an act for the protection of people in Indian territory and for other purposes is merely an artifact of history. It no longer operates," Dunn told the court.

In the late 19th century, temporary laws were created so that there would be jurisdiction over non-Indians in the reservation. And these included laws that allowed cities to form and allowed for Arkansas law to be extended over eastern Oklahoma for certain purposes. All of these were designed to fill the gap between allotment and ultimate statehood in Oklahoma.

Municipalities like Tulsa were technically under the jurisdiction of Congress, because there was no territorial government in what became Oklahoma.

Depending on the outcome of the Hooper case in the appeals court, the case could end up in front of the Supreme Court.

Tulsa maintains that a section of the Curtis Act that gives the city jurisdiction in criminal matters was never repealed.

Municipal governments were set up as parallel governments to tribal governments – which Congress was trying to abolish through the Curtis Act.

Kristina Gray, the litigation manager for the City of Tulsa's City Attorney, argued Congress specifically gave jurisdictional powers to the city, and they never took away those jurisdictional powers.

"[The] state cannot somehow supplant the fact that Congress gave this jurisdictional grant and didn't undo it," said Gray during her argument.

Stephen Greetham, who is lead counsel for the Chickasaw Nation, says, yes they did.

"Are the cities we have today Curtis Act municipalities or Oklahoma municipalities? Are we talking apples or oranges," Greetham told KOSU.

Allison Herrera is a radio and print journalist for KOSU