Tulsa Attorney BlogTulsa City Judge Rules McGirt Does Not Apply to Tulsa Municipal Court

Municipal Courts Are a Political Subdivision of the State of Oklahoma

Video Transcribed:  Tulsa City judge rules that the McGirt precedent does not apply to the City of Tulsa.

McGirt attorney, James Wirth. And we’re talking about the subject matter jurisdiction for crimes committed within the City of Tulsa limits by Native Americans.

All right so, we go back to July 9th of 2020, the United States Supreme Court ruled in McGirt that the Muskogee Creek Nation reservation was never disestablished and, therefore, a good portion of Northeast Oklahoma is still Indian territory.

That precedent is moving out from there and applying to other tribes, including it’s widely expected to apply to the Cherokee Nation, which between the Cherokee Nation and the Muskogee Creek Nation, that includes the totality of the City of Tulsa.

All right and, now, the issue becomes well, if the State of Oklahoma lacks jurisdiction to prosecute Indians in tribal territory, what about municipal courts?

And it’s been pretty widely believed that municipal courts as well, lack jurisdiction. After all, municipal courts and the municipality are a political subdivision of the State of Oklahoma.

When you go to municipal court and you need to appeal a ruling, where do you appeal it? You appeal it to state court, district court. And from there, you can go to the Oklahoma Court of Civil Appeals or the Oklahoma Court of Criminal Appeals, and to the Oklahoma Supreme Court.

So, how can the State of Oklahoma lack jurisdiction, but yet a political subdivision of the state, like a municipal court, have jurisdiction? That’s the question that is before Judge McCune in municipal court.

And we have a ruling that came out on February 2nd of 2021. And according to Judge McCune, in his ruling as the presiding judge there, the municipal court does have jurisdiction.

Now, this decision is likely to be appealed. We’re likely to hear a lot more on this. But, as of right now, the judges in Tulsa Municipal Court are denying McGirt motions, and saying they do have jurisdiction. And what they’re hanging their hat on is the Curtis Act from 1898.

And there’s some language in there that they’re specifically going after in section 14. And this has to do with the establishment of cities in Indian territory.

And what it says is, “And all inhabitants of such cities and towns without regard to race,” and that’s the main section we’re talking about here is without regard to race, “Shall be subject to all laws and ordinances of such city or town governments and shall have equal rights, privileges and protections therein.”

So, they’re using this as authority from federal law for municipal courts to have jurisdiction over Native Americans there. And there’s a couple of issues with that.

First off, there’s never been any case interpreting race here to be dealing with Indians, who are widely considered to be not necessarily a race under the law, but a political group that is established. So, there are not any good court cases on that.

And each side in this case where the defendant is requesting the charges to be dismissed, and the prosecutors asserting they do have jurisdiction, each side cited authority, none of which was directly on point, but each made somewhat of a compelling case.

So, it was not maybe an easy decision for Judge McCune, but there are a couple of things that bring up here. At the time that this went into effect, the Curtis Act, Oklahoma was not a state.

So, it was Indian territory and municipalities that were created during that time, cities and towns that were created at that time, arguably, were political subdivisions of the United States government. When Oklahoma became a state, at some point, it transferred and became a political subdivision of the State of Oklahoma.

Also, most of the Curtis Act has been repealed or undone, vacated through case law, or through other statutes since that time. So, the argument here is that section 14 is preserved.

And if this is preserved, then that gives the state that grants the city jurisdiction in order to charge these, even though the court that it would be appealed to, and even though the political subdivision of which it is a subdivision of, does not have jurisdiction. So, it doesn’t make a lot of sense.

And Judge McCune in his order acknowledges the strangeness of that scenario, where a court, like the municipal court, does have jurisdiction, but the court that it would normally be appealed to, on his rulings, does not have jurisdiction.

And he finds that there is the authority, under those circumstances, to appeal to federal court.

So, that three is still a process of appeals there. And this decision is likely to be appealed because it’s not just going to apply to the City of Tulsa as precedent if it goes up on appeal.

It’s likely to apply to any municipality in a city within tribal historic reservation boundaries that are covered by the McGirt precedent.

So, we’re going to be seeing a lot more of this. But, as of right now, the City of Tulsa is acting as if McGirt does not apply to it. It’s likely to go up on appeal, and we’ll get a decision later.

If you’re dealing with these circumstances, you’re going to want to talk to an attorney about your specifics. To schedule a consultation for that with somebody at my office, you can go to makelaweasy.com.

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