Citing 1898 Curtis Act for jurisdiction over tribal citizens, Henryetta calls 2020 McGirt ruling ‘old’ news

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Sued by the Muscogee Nation in federal court for prosecuting tribal citizens in alleged violation of the McGirt v. Oklahoma decision, the City of Henryetta has responded by arguing that “McGirt is old and, as applied here, inapplicable news.”

On Aug. 14, the city filed its response to the lawsuit and a motion to dismiss, arguing Henryetta has concurrent jurisdiction over tribal citizens under the U.S. Supreme Court’s Oklahoma v. Castro-Huerta decision and under the Curtis Act of 1898. The Muscogee Nation’s suit mirrors similar cases it has filed against the City of Tulsa and Tulsa County District Attorney Steve Kunzweiler.

For more than a century, the general rule in Indian Country has been that state governments lack criminal jurisdiction over Indian defendants. Before the McGirt decision, application of rules for Indian Country jurisdiction in Oklahoma was typically limited to land held in trust and restricted allotments. Since the decision affirmed that the Muscogee Nation Reservation was never disestablished — and subsequent Oklahoma Court of Criminal Appeals decisions held the same for a series of other reservations — the rule has become applicable to most of eastern Oklahoma.

The City of Henryetta’s attorneys argued in their motion to dismiss that the U.S. Supreme Court’s decision in Oklahoma v. Castro-Huerta, which departed from past precedent and held that state governments have concurrent jurisdiction over crimes in Indian Country involving non-Indian defendants whose victim is Indian, means the default rule now considers states to have jurisdiction in Indian Country.

The city’s motion argues:

While factually distinct, the Castro-Huerta court firmly established the foundational principle for conducting jurisdictional analysis in Indian Country: “the court’s precedents establish that Indian Country is part of a state’s territory and that, unless preempted, states have jurisdiction over crimes committed in Indian Country.” Regarding preemption, Castro-Huerta explained that “a state’s jurisdiction in Indian Country may be preempted (i) by federal law under ordinary principles of federal preemption, or (ii) when the exercise of state jurisdiction would unlawfully infringe on tribal self-government.” Absent preemption by federal law under ordinary principles of federal preemption, the next — and last — step of the established Castro-Huerta analysis is to determine whether the exercise of state jurisdiction would unlawfully infringe on tribal self-government. Under U.S. Supreme Court precedent, this requires a (Bracker) balancing of the federal, state and tribal interests. Here, principles of tribal self-government should not bar Henryetta from prosecuting misdemeanor traffic crimes or ordinance violations committed by nation members on the reservation when those offenses occur in Henryetta.

While the city’s bold interpretation of the Castro-Huerta case could prevail, the 10th Circuit Court of Appeals — the intermediate appellate court between Oklahoma’s district courts and the U.S. Supreme Court — has already indicated that it disagrees with claims of concurrent jurisdiction in Oklahoma. While the issue of state jurisdiction was not before the 10th Circuit in its recent United States v. Hopson decision, the three-judge panel’s dicta appears incompatible with the City of Henryetta’s position now.

“‘Except for the offenses enumerated in the Major Crimes Act,’ the Supreme Court has held, ‘all crimes committed by enrolled Indians against other Indians within Indian Country are subject to the jurisdiction of tribal courts,’” Judge Veronica Rossman wrote. “The Act is a ‘carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land.’”

The Hopson case found that federal courts in the 10th Circuit lack jurisdiction over lesser included offenses of crimes listed in the Major Crimes Act and that tribal courts have exclusive jurisdiction over those criminal cases.

Asked Tuesday about the Muscogee Nation’s lawsuits against the cities of Tulsa and Henryetta, Oklahoma Gov. Kevin Stitt focused his answer on the City of Tulsa’s settlement agreement with the Muscogee Nation. He criticized “the politicalness of this” and questioned the notion of tribal sovereignty.

“I mean, it’s just ludicrous,” Stitt said. “When (former Mayor) G. T. Bynum was opposing (the Muscogee Nation’s lawsuit) and saying, ‘Hey, the mayor of the City of Tulsa is saying, of course, everybody has to be able to be subject to the Tulsa Police Department.’ And then (current Mayor) Monroe Nichols changing that and now supporting [the settlement agreement] and saying, ‘Hey, we’re going to turn over all prosecutions to the Creek Nation.’ Number one, we don’t think he has the right to do it. That’s why we’ve intervened in the case. (…) And people are trying to say, ‘Oh, these are sovereign nations,’ or whatever that means. Ask the question, what does ‘sovereign nation’ mean?”

According to a 2017 post on the Bureau of Indian Affairs website, tribal sovereignty “is limited today by the United States under treaties acts of Congress, executive orders, federal administrative agreements and court decisions.”

“What remains is nevertheless protected and maintained by the federally recognized tribes against further encroachment by other sovereigns, such as states,” the BIA page states. “Tribal sovereignty ensures that any decisions about the tribes with regard to their property and citizens are made with their participation and consent.”

While it remains pending in front of U.S. District Court Judge John D. Russell, the Tulsa agreement seeks to settle a lawsuit the Muscogee Nation filed against the City of Tulsa in late 2023. When the Muscogee Nation filed its suit against Henryetta on July 8, Chief David Hill referenced the framework of the Tulsa agreement as “a perfect example of how these issues can be resolved.”

“While we continue to seek collaboration that should take place outside of the courts, we cannot sit idly by while federal law is being ignored with Creek citizens and other Indians being unlawfully arrested and prosecuted by Henryetta,” Hill said in July.

Late Wednesday, Stitt’s office filed an application for original jurisdiction with the Oklahoma Supreme Court that asks justices to issue “a writ of prohibition preventing Tulsa from continuing any agreement, policy, or practice that cedes or refuses to equally enforce the state’s valid exercise of criminal jurisdiction.”

“Acting without approval from the (Tulsa) City Council, the governor, or the Legislature’s Joint Committee on State Tribal Relations, Tulsa has already begun enforcing this policy, abandoning the state’s valid criminal jurisdiction in violation of Oklahoma law,” Stitt’s general counsel, Ben Lepak, wrote in the application. “If this court does not intervene, Tulsa’s actions will erode state sovereignty, undermine public safety, and invite other municipalities to unlawfully surrender their legal obligations.”

Notably, the Tulsa settlement agreement would see cases involving tribal citizens with “Indian blood” transferred to the Muscogee Nation District Court. Cases involving tribal citizens without an Indian blood quantum would still be adjudicated in municipal court under the agreement. Stitt, a Cherokee Nation citizen, criticized the Tulsa agreement’s exclusion of Freedmen descendants without a blood quantum.

“So now we’re treating a Black person different than (my brother) Keith Stitt, and that’s what I fundamentally have a problem with,” Stitt said Tuesday. “This is America, we’re all created equal, and the fact that people are trying to divide us based on race, I just find that appalling, disappointing. I just don’t know why more people don’t see it the way I do.”

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Henryetta dismisses cases involving Muscogee citizens, revives Curtis Act claims

In a declaration filed with the court, Henryetta City Attorney John Insabella said the city would not prosecute any members of the Muscogee Nation “during the pendency of this proceeding,” but he said the city intended to continue to prosecute “non-member Indians” in line with the Oklahoma Court of Criminal Appeals decision in City of Tulsa v. O’Brien.

“The city does not intend to prosecute any member of the nation during the pendency of this litigation for alleged violations of its municipal ordinances absent further clarification from a court of competent jurisdiction to affirm Henryetta’s concurrent jurisdiction as set forth in Castro-Huerta and O’Brien,” Insabella wrote. “Accordingly, I have elected to exercise prosecutorial discretion to dismiss citations in municipal court against (Muscogee) Nation members, but will continue to prosecute non-member Indians if the situation were to arise, pursuant to O’Brien and the jurisdictional analysis established by the United States Supreme Court in Castro-Huerta.”

While Insabella’s decision to dismiss cases against Muscogee Nation citizens while simultaneously arguing the city has jurisdiction over those cases may seem odd, it is likely explained by the argument about legal standing in the city’s motion to dismiss. There, Henryetta’s attorneys argued the Muscogee Nation lacks standing to intervene on behalf of non-member Indians since they are not the nation’s own citizens and the city’s prosecution of them does not interfere with tribal self government.

Kunzweiler raised similar standing arguments in his case, which U.S. District Judge Gregory Frizzell rejected in the Northern District of Oklahoma.

“In United States v. Lara, the Supreme Court wrote that, in 25 U.S.C. § 1301(2), Congress recognized and affirmed in each tribe the inherent tribal power to prosecute non-member Indians for misdemeanors,” Frizzell wrote. “For the foregoing reason, the motion to dismiss of defendant Steve Kunzweiler (…) is dismissed.”

Unique to the Henryetta lawsuit appears to be the revival of the argument the 19th-century Curtis Act granted the municipality criminal jurisdiction over tribal citizens. While the 10th Circuit Court of Appeals found in late 2023 that the act did not authorize the City of Tulsa to prosecute tribal citizens, the City of Henryetta now argues that it was built differently from its fellow Curtis Act towns because it never reincorporated under Oklahoma’s laws.

“In Hooper, the circuit court panel’s primary argument against City of Tulsa’s reliance upon the Curtis Act was the fact that City of Tulsa adopted a new charter after statehood, reincorporating under Oklahoma law. As such, ‘Tulsa is no longer entitled to Congress’s limited grant of jurisdiction in Section 14,'” the city’s motion to dismiss reads. “Like Tulsa, Henryetta organized pre statehood in late 1901 and fell under Section 14 of the Curtis Act. Unlike Tulsa, however, Henryetta did not reincorporate or adopt a new charter after statehood. Accordingly, Henryetta is still protected by Section 14 of the Curtis Act, which has not been repealed by Congress.”

Henryetta lacks cross-deputization agreement, creating legal uncertainty

The City of Henryetta does not have a cross-deputization agreement with the Muscogee Nation, according to a declaration filed by Muscogee Nation Attorney General Geri Wisner.

“Consequently, Henryetta’s police officers lack authority to stop, detain, investigate, or ticket nation citizens and other Indians within the (Muscogee) Reservation,” Wisner wrote.

The legal implications of city police officers arresting and ticketing Indians without cross-deputization agreements in place are unclear. Courts will likely have to determine in the future whether cities enforcing their laws on tribal citizens without a cross-deputization agreement violates those tribal citizens’ rights.

While not quite law, a federal magistrate judge’s recommendation earlier this summer appears to hint that a city entering into a cross-deputization agreement is a complete shield from 42 U.S.C. 1983 lawsuits brought by tribal citizens against cross-commissioned officers. If the Eastern District of Oklahoma adopts the magistrate judge’s recommendation, the Muscogee Nation’s lawsuit against the City of Henryetta could raise questions about whether the converse of the ruling would also be true: a law enforcement officer without a cross-deputization agreement might be definitionally engaged in the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws,” under the color of state law since they lack legal authority for their actions.

The magistrate judge declined to answer that hypothetical scenario in his recommendation.

“The undersigned magistrate judge declines to speculate whether plaintiff would have had a viable § 1983 claim against the individual defendants had they not been cross-commissioned, as that question is not before the court,” Magistrate Judge Gerald L. Jackson wrote.

The court has yet to adopt or reject Jackson’s recommendation as of the publication of this article.

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