Nearly a year and a half after the Muscogee Nation filed suit against the City of Tulsa for prosecuting tribal citizens within the Muscogee Reservation, Tulsa Mayor Monroe Nichols and Muscogee Nation Principal Chief David Hill signed a settlement agreement today where “the city agrees that it will not exercise criminal jurisdiction over Indian defendants on the nation’s reservation.”
Instead, municipal citations and completed criminal investigations involving tribal citizens on the Muscogee Reservation within Tulsa will be referred to Muscogee Nation prosecutors or federal prosecutors to make charging decisions. The Tulsa Police Department will retain authority to investigate and arrest tribal citizens under a pre-existing cross-deputization agreement.
“In the best interest of public safety and inter-governmental cooperation, and to settle this matter in lieu of litigating disputes over jurisdiction, the city agrees that it will not exercise criminal jurisdiction over Indian defendants on the (Muscogee) Nation’s reservation,” the settlement reads. “This agreement does not preclude the city from exercising criminal jurisdiction pursuant to any lawful, valid and duly authorized delegation of authority from the nation to the city, including law enforcement activities undertaken by the Tulsa Police Department pursuant to the parties’ cross-deputization agreement.”
The agreement, released in full for the first time today, was also filed with U.S. District Court Judge John D. Russell for approval, but lingering objections by Gov. Kevin Stitt could complicate that process.
In addition to saying that future prosecutions of tribal citizens for crimes committed within Tulsa on the Muscogee Reservation will be brought in federal or Muscogee courts, the agreement also specifies that pending cases involving tribal citizens will be dismissed and transferred to the Attorney General’s Office of the Muscogee Nation.
“The city will work in good faith with the nation to transfer tickets and charges dismissed under Section 10 of this agreement to the nation,” the settlement reads. “The city shall refer all future charges and tickets against known Indian defendants for conduct occurring within the nation’s reservation to the nation and/or, in the case of major crimes subject to [U.S. Code 18, Section 1153], the city may refer such charges against known Indian defendants to both the United States and to the nation.”
Borne from ongoing jurisdictional fights following the 2020 U.S. Supreme Court decision in McGirt v. Oklahoma, other portions of the settlement include:
- Acknowledgements that present principles of Indian law agreed upon between the city and nation, including:
- The Muscogee Nation Reservation has not been disestablished;
- “Indian Country” includes all reservation lands;
- Indian nations have criminal jurisdiction over all Indian defendants for crimes occurring within Indian Country;
- Federal and state law are in conflict after the Oklahoma Court of Criminal Appeals decision in Tulsa v. O’Brien; and
- Several pending cases have the potential to resolve the conflict between state and federal law;
- “The city shall make a good faith effort to determine the Indian status of all suspects or defendants before seeking to exercise criminal jurisdiction;”
- “The (Muscogee) Nation will review in good faith all tickets and charges referred by the city and prosecute such cases consistent with the nation’s law enforcement priorities and prosecutorial discretion;”
- “The city will have access to the records of the nation’s prosecutorial decisions” and the nation “agrees to ensure that the city retains access to these records of decision;”
- The parties agreed to ask Russell to grant a pending motion that would have the U.S. Department of the Interior to withdraw its prior motion to intervene in the case;
- The parties also agreed to ask Russell to deny all other pending motions and dismiss the case without prejudice (meaning the Muscogee Nation could refile the suit at a later date);
- “The nation and the city agree that, within one month of the effective date of this agreement, they will establish a joint working group to assess the parties’ shared governance needs and goals, and to evaluate and recommend additional practices, policies and cooperative agreements to achieve their joint public safety and law enforcement priorities;”
- “Within eight months from the effective date (…), the working group will present a comprehensive report on the status and disposition of cases referred by the city to the nation and an actionable plan for achieving shared public safety goals;”
- A mediator and mediation is required if a dispute arises before either party may file suit to “enforce, modify, or terminate” the agreement; and
- Modification or termination of the agreement are allowed as a result of a “relevant federal decision” that finds Oklahoma and/or its subdivisions possess criminal jurisdiction over Indians, if Tulsa’s mayor or the Muscogee Nation’s principal chief does not approve the “report and plan” released by the taskforce within one year, or if either party fails “to meet its obligation under this agreement.”
Owing to the existing cross-commission of Tulsa Police Department officers as Muscogee Nation law enforcement officers, the new settlement agreement appears to change little about on-the-ground responses to criminal complaints. Instead, the agreement primarily changes which government can bring criminal charges after a TPD investigation. State and county law enforcement leaders have criticized the agreement and have pledged to continue referring prosecutions to state district attorneys in accordance with the O’Brien decision.
After pushing back against concerns at a Tuesday press conference, Nichols praised the agreement in a press release Wednesday:
First, I want to thank Principal Chief David Hill and the Muscogee Nation for entrusting us with the work ahead and for the good faith efforts in creating a path forward that has not been accomplished in more than five years. The collaboration and communication between our governments has been tremendous, and I look forward to our next step in this process. As mayor, I pledged to make Tulsa the safest big city in the country and to co-govern with our tribal partners. Today, with this agreement, we are establishing systems to ensure that we move forward on both of those pledges with a solid framework. Our city can only benefit if we collaborate and approach our work together rather than individually. We are stronger together, and we can show the nation how municipalities and tribal governments can work together to create better outcomes for all our residents.
In the same release, Hill said he looks forward to co-governing with Nichols through the agreement:
As we get closer to next month’s five-year anniversary of the Supreme Court’s monumental McGirt decision, I am reminded and find myself very proud of the significant strides the nation has made to increase its law enforcement and judicial capabilities to meet the demands necessary for responsible governance of our Reservation,” Hill said. “These efforts by the nation to provide robust public safety priorities in our communities are enhanced when we are able to work closely in cooperation with state and local agency partners. Today, a clear example of this partnership has been realized by the settlement reached between the Nation and the City of Tulsa regarding the exercise of criminal jurisdiction within city limits on the reservation. I applaud and appreciate the vision of Mayor Nichols in advocating a policy for reaching solutions with tribes — rather than litigating — on these issues of mutual importance for citizens and visitors in Tulsa, both Indian and non-Indian alike.
While the nation and Tulsa have reached a settlement today, I know that the real work for implementing the terms of this collaboration is just beginning However, I look forward to working with Mayor Nichols and his team as we show the rest of the state what responsible and respectful co-governance on the reservation can look like.
Kunzweiler: ‘The state of Oklahoma’s interests are being impacted’
On Monday, several state law enforcement leaders released statements critical of the settlement agreement in a press release from Stitt’s office, with the veracity of their claims impossible to verify since the parties had declined to release the agreement until Wednesday. With the agreement now public and TPD still able to make arrests and conduct investigations under cross-commissions with the tribe, some of the comments leaned toward hyperbole.
Tulsa County District Attorney Steve Kunzweiler said Wednesday the lack of public input and awareness about the settlement fueled speculation, but he stopped short of agreeing that the now-revealed details won’t prevent normal TPD activities. Kunzweiler criticized Section 11’s “agreement not to initiate future prosecutions,” which says “the city will not initiate prosecutions in municipal court or the courts of the state of Oklahoma against known Indian defendants for conduct occurring on the nation’s reservation.”
He claimed it implies more than that, an argument likely to irritate the mayor’s office.
“I have my concerns that [TPD is] going to focus on the things that they know they can do without being second-guessed as to why they went further into an investigation,” Kunzweiler argued. “I think that’s just human nature, and I think the police department will probably allocate its resources accordingly. That causes me concern about merchants in my community, homeowners in my community, people whose cars have broken into. When you start developing a suspect and that suspect ends up being an Indian, I suspect that it’s just going to shut down. Then you’re jut starting from scratch, and experience has told me that if you’re picking up somebody else’s investigation, you’re just not going to work it as hard as if you were first handling it. So as the tribe may be trying to pick some things up, they’re going to be coming in late to the game in a lot of this stuff.”
Meanwhile, in court …
Speeding charges against Keith Stitt, the governor’s Cherokee brother who challenged Tulsa’s jurisdiction over him, were filed in the Muscogee Nation District Court in April. His arraignment is set for July 2 unless Stitt pays $159 in fines and fees.
Kunzweiler emphasized that he believes Oklahoma should have concurrent jurisdiction over all citizens with the federal government and tribal nations, a position widely criticized as infringing upon tribal sovereignty.
“A lack of concurrent jurisdiction is no justice at all,” he said. “All we’re asking for is the right to be able to handle what has inherently been Oklahoma’s authority all along — to have concurrent jurisdiction. We are not asking to deprive the Muscogee Nation of any rights they may have to prosecute somebody, but don’t take it away from the state of Oklahoma.”
Jeff Downs, president of the Tulsa Fraternal Order of Police Lodge 93, said his organization “played no role” in the settlement negotiations. As a result, he and his members were unaware of the details until the document began circulating Wednesday.
“I would have preferred that the Fraternal Order of Police would have had a seat at the table during those discussions,” Downs said. “The current situation makes the job of the police officer in the field more difficult.”
Kunzweiler also bemoaned a lack of opportunity to provide input about the settlement — although he is currently being sued by the Muscogee Nation in federal court for prosecuting tribal citizens — and he argued a more collaborative process among broader stakeholders would have been appropriate.
“When I look at this agreement, there’s only one person who is signing off on it on behalf of the City of Tulsa, and that’s the mayor. And I’m wondering where is the community input for taking such a dramatic step?” Kunzweiler asked. “I don’t know where the city council stands on this, but it would seem like it would be beneficial to know where the city council stands on something like this. But more importantly, just the citizens of the city of Tulsa. Why couldn’t we have listening sessions across the city of Tulsa before you sign off on something so important? It seems like your local citizens whose public safety might be impacted might really have an opinion as to whether this is in their public safety interest.”
Under the city’s charter, the mayor’s office has unilateral authority to settle litigation when it does not include a payment of at least $1 million. Nonetheless, Kunzweiler said Tulsa has a history of holding public forums and discussions about major projects and proposals. With the introduction of the settlement saying the city and nation found “mutual interest in advancing their law enforcement and public safety priorities,” Kunzweiler questioned the process.
“Well, speak to the public, right? I can guarantee you there are going to be a lot of people who aren’t going to say this is a public safety priority the way this agreement has been structured,” he said. “That input hasn’t been there.”
On Tuesday, Nichols pushed back on that notion during his press conference.
“I don’t know in how many cases two parties craft out a settlement and they show everybody else in the world what is in that settlement. It has not been of any will to shield it from people, it has just been the matter of settling the court case,” Nichols said.
To that end, Kunzweiler said he hopes Stitt’s pending motion to intervene in the lawsuit is heard by Russell, the federal judge, before he approves the submitted agreement.
“It seems to me paramount that the court entertain or at least give the governor’s office every opportunity to outline how the state of Oklahoma’s interests are being impacted,” Kunzweiler said. “That would be my first suggestion or hope — that there’s an opportunity before this agreement is fully adopted by the court that the state of Oklahoma has the opportunity to speak.”
Some Freedmen excluded from agreement
On Tuesday, Nichols claimed the agreement would not affect an ongoing lawsuit between Muscogee Freedmen and the Muscogee Nation.
“It also has no bearing on the underlying question of citizenship for Black Creek Freedmen,” Nichols said.
While the agreement does not affect the ongoing Muscogee lawsuit, it does define “Indian” in a way that excludes many Freedmen descendants from its application.
“Unless modified by a relevant federal decision, Indian shall mean a person who ‘(1) has some Indian blood; and (2) is recognized as an Indian by a tribe or by the federal government,'” the agreement reads.
The incorporated legal factor requiring “Indian blood” originates from an 1846 murder case involving two intermarried white Cherokee citizens.
When the Dawes Rolls for the Five Tribes were created, each tribe had a “by blood” roll and a “Freedmen” roll. Tribal citizens who appeared Black to federal agents were largely enrolled as “Freedmen,” without a genealogical investigation into whether they possessed Indian ancestry. There are Freedmen enrolled as tribal citizens today who clearly meet the second prong of the agreements definition, but they can never meet the first prong of proving Indian blood.
As a result, an enrolled Cherokee Freedman without documented Indian blood who commits a crime on the Muscogee Reservation does not appear to meet the criteria for their case to be transferred to tribal court, despite legal standing as tribal citizens. Even if Muscogee Freedmen succeed in their ongoing court battle for Muscogee citizenship, they also would be excluded under the new settlement agreement.
Damario Solomon-Simmons, a Muscogee Freedmen movement lawyer, raised concerns in a March filing that the burgeoning agreement between the Muscogee Nation and City of Tulsa could negatively impact the rights of Freedmen.
“Mr. Solomon-Simmons, and other Creek Freedmen descendants like him, will continue to face irreparable harm from traffic prosecutions in Tulsa along with other citizens of the [Muscogee Nation] absent this court’s intervention,” his attorneys wrote. “The risk of such harms is heightened considering the [Muscogee Nation’s] refusal to recognize descendants of Creek Freedmen.”
Asked for comment on how the agreement would affect the prosecution of “tribal citizens without Indian blood,” a spokeswoman for Nichols said she would provide “an update.” However, none was offered prior to the publication of this article.
Hoskin, UINO respond to rhetoric around agreement
The City of Tulsa’s press release announcing the agreement also included praise from Cherokee Nation Principal Chief Chuck Hoskin Jr., as well as a helping of criticism for the governor’s Monday comments. The Cherokee Nation Reservation runs north of Archer Street in Tulsa, and it’s possible that a similar jurisdictional agreement could be struck — out of court — with Hoskin.
“I applaud the City of Tulsa and Muscogee Nation for reaching a resolution that protects tribal sovereignty and enhances public safety for all,” Hoskin said. “Mayor Monroe Nichols and Chief David Hill have demonstrated thoughtful leadership in reaching this agreement. Far on the other end of the spectrum is Gov. Kevin Stitt, whose ignorance of the fundamentals of tribal sovereignty and cooperative governance within tribal reservations is astounding. Gov. Stitt remains hopelessly on the wrong side of history while the rest of us chart a course for co-governing alongside tribes in the 21st century.”
Stitt’s communications director said he had no additional comment about the agreement Wednesday, emphasizing Stitt’s Monday statement that the agreement “sets a concerning precedent and will make it impossible for elected officials and Oklahoma law enforcement to protect their communities.”
Rep. Amanda Clinton (D-Tulsa), who also works as a public relations specialist, provided a resolution from the United Indian Nations of Oklahoma supporting the settlement agreement.
“Be it resolved, UINO applauds the efforts of Muscogee (Creek) Nation and the City of Tulsa to reach a mutually beneficial agreement on criminal jurisdiction over Indians within the Muscogee (Creek) Reservation and the City of Tulsa,” the resolution reads. “Be it further resolved, that UINO condemns the false and inflammatory rhetoric of Gov. Stitt that incited division not only between tribal nations and local governments but also Indian and non-Indian people.”
Read the agreement between the City of Tulsa and the Muscogee Nation
