Hooper vs. City of Tulsa 10th Circuit
I would appreciate any thoughts on the options for enforcement of municipal ordinances against Indians in Indian Territory after Hooper case. If municipal court doesnt have jurisdiction to enforce its ordinances how can tribal courts enforce ordinances of the municipality?
JUSTIN HOOPER,
Plaintiff - Appellant,
v.
THE CITY OF TULSA,
Defendant - Appellee.
CHEROKEE NATION; CHICKASAW
NATION; CHOCTAW NATION OF
OKLAHOMA; QUAPAW NATION;
SEMINOLE NATION OF OKLAHOMA;
MUSCOGEE (CREEK) NATION; STATE
OF OKLAHOMA; OKLAHOMA
ASSOCIATION OF MUNICIPAL
ATTORNEYS,
Amici Curiae.
No. 22-5034
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:21-CV-00165-WPJ-JFJ)
John
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com
I'm working on an email to OMAG Member Police Chiefs and City
Attorneys/Prosecutors in the McGirt affected area and I'll be happy to
share it here if there's enough interest. But I'll offer a summary of my
initial thoughts in this email.
As to David's question, I suppose a Tribe could adopt a Tribal Code
provision that essentially adopted, by reference, the municipal code of
each Municipality within their reservation limits. I've heard that some of
the Tribes have done something similar post-McGirt as it relates to
adopting Titles 21, 47 and 63*. *I'm not personally a fan of them doing
this - the underlying logic behind the Supreme Court's jurisdictional cases
relates to the power of Tribes and Tribal members to make their own laws
and be governed by them. By adopting Municipal ordinances by reference,
they certainly would be exercising that power and, by doing so, essentially
ceding power to the municipalities to change the ordinances that apply to
their members.
My first comment is essentially it ain't over 'till it's over. Tulsa can
file a Cert Petition (and I really hope they do). I believe their
deadline is 9/26/2023 unless they seek rehearing en banc. If they are
looking filing a Cert Petition, they likely will be talking about possibly
seeking rehearing en banc if for no other reason than to ensure that
there's no chance their Cert Petition gets considered at the Court's first
conference after their summer recess (aka the "long" conference).
My next comment is about the binding nature of Hooper. My recollection is
that only Supreme Court opinions are binding precedent on the Court of
Crims when it comes to issues of Federal law and that 10th Circuit
opinions, while persuasive, are not binding. I'm not saying we can simply
ignore Hooper (if I'm right, which I'm not sure whether I am, about the
effect of 10th Circuit opinions on State and local prosecutions). In fact,
even if I am right, I couldn't fault a Municipal Judge for abiding by
Hooper.
I think Municipal Judges are bound to evaluate their jurisdiction in light
of the most recent analysis from Castro-Huerta. Two steps. Step 1 - is
there express Federal preemption. The answer should be no in light of
Castro-Huerta. Step 2 - is the exercise of Oklahoma's inherent sovereign
jurisdiction (which we are vested with) preempted via a Bracker balancing
analysis which goes to whether the exercise would infringe on Tribal self
governance. Of note is footnote 5 in *Hooper. *OAMA's Amicus brief argued
that Tulsa had jurisdiction over Mr. Hooper since he was a Choctaw Indian
and the crime occured within the Creek reservation. Applying Bracker,
that would mean that Tulsa would have had jurisdiction without even
reaching Section 14 of the Curtis Act (since, under Bracker, an Indian
who acts outside their own Indian Country, including within the Indian
Country of another Tribe, is subject to inherent State jurisdiction). The
Court declined to consider that argument in footnote 5 but did state that
it would "leave resolution of this issue for a case where it is properly
raised by the parties." But applying Bracker, if the Defendant is a
member of the Tribe within whose reservation the crime occured, then
clearly we could not exercise jurisdiction pursuant to the State's inherent
jurisdiction.
Castro-Huerta makes clear that the purpose of express Congressional
grants of jurisdiction are to allow jurisdiction to be exercised when it
would otherwise be preempted under Step 2 of the Castro-Huerta analysis.
That's where Section 14 comes in. With all due respect to the 10th Circuit,
I think they wildly missed the mark on this one. Their logic was
essentially - Section 14 did several things for municipalities, but only
for certain municipalities. Those were the municipalities authorized and
organized per Mansfield's Digest. Once Oklahoma became a State, the laws
applicable to municipalities within the borders changed from the laws in
Mansfield's Digest to Oklahoma State law. Since Section 14 didn't provide
for any powers or authority for municipalities organized under Oklahoma
law, it no longer applies. Basically, that Section 14's grant was
conditional, and that condition was that it only applied when we were
operating under the territorial laws.
Respectfully, that's just wrong. Congress is (supposedly) limited in its
authority and when it acts it must do so pursuant to some authorization in
the Constitution. When Congress touched upon Indian affairs, it exercised
Art. I, Sec. 8 authority. When Congress acted as the territorial
legislature for the Indian Territory, it exercised Art. IV, Sec. 3
authority. When Congress subjected Indians to Municipal ordinances it
exercised Art. I, Sec. 8 authority. When Congress opened the door to
Statehood and provided that the first set of State laws would be the laws
from the Oklahoma Territory, it exercised Art. IV, Sec. 3 authority.
Mansfield's Digest was put into place by Congress per Art. IV, Sec. 3.
Congress exercised this power just about anytime it passed an Organic Act
so that there would be an initial set of local, territorial laws. What was
unique about the Indian Territory is that there was not a local,
territorial legislature who could then amend those local laws and adopt new
ones. So Congress filled that void, acting as the territorial legislature
when it pulled more provisions from Mansfield's into the Indian Territory
and also when it modified, via Section 14, the process for municipal
incorporation. But since two territories were being combined into 1 State,
Congress had to address what the initial, first set of State laws would be.
It went with the laws from the Oklahoma Territory. But this was just a
shift in local laws. Mansfield's Digest, when applicable to Indian
Territory, was not a set of Federal laws. They were local laws, and then
the local laws changed to the first set of Oklahoma laws.
This might be a bad analogy, but imagine this. The Oklahoma Legislature
adopts a provision in Title 21 that states that "A Municipality that has
adopted a Council Manager Form of Government pursuant to 11 O.S. 10-101
through 10-121, shall have the power to enforce ordinances related to [fill
in the blank felony charge that we currently can't prosecute]." 9 years
later, the Legislature overhauls several Titles and decides to move the
Municipal Code to a new Title 86. And let's just say that they made
substantive changes to the statutes on the CM form of government. None of
the cities and towns ceased to exist. It would just be that the statutes
that govern their organization and authorization to act would have changed.
Would anyone seriously argue that the statute in Title 21 would no longer
apply? Or would we fully expect the Court to look and reason that the same
legislature that adopted the Title 21 authorization was the same
legislature that made the change in the laws applicable to the entities
that could use that Title 21 authorization?
Congress created the local laws for municipal incorporation. Congress
granted those municipalities authority to prosecute Indians. Congress
entered into an Agreement with the Creek Nation that expressly stated that
Section 14 would remain in full force and effect within the Creek
reservation. Congress then shifted the body of local laws, including the
laws related to municipalities and municipal incorporation, to a new set of
local laws and gave up its authority to further tinker in those local laws
by admitting Oklahoma as a State. Essentially, Hooper would require that
Congress have come back and stated that Municipalities organized and
authorized under Oklahoma law can exercise jurisdiction. Why would it need
to say that - it already said they could exercise jurisdiction before it
then said that a new set of local laws apply (and keep in mind, local laws,
be they territorial laws or State laws, cannot grant jurisdiction over
Indians within Indian Country - only a Congressional grant under Art. I,
Sec. 8 can do so).
The Tribes have been making an argument off and on that the real issue is
the source of sovereign authority. Their argument is essentially that,
since there was no State, there was no inherent State sovereignty that the
Municipalities could exercise. As such, municipalities within the Indian
Territory were instrumentalities or political subdivisions of the Federal
government. Congress granted jurisdiction via Section 14 to its own
political subdivisions. But the underlying source of Municipal authority
shifted to the inherent sovereign authority of the State of Oklahoma at
Statehood. And Congress never granted Oklahoma political subdivisions any
authority to exercise jurisdiction over Indians within Indian Country. So,
the argument goes, the municipalities could only exercise this grant of
jurisdiction so long as they were acting under Federal authority. If the
Court had incorporated this logic in Hooper, I would disagree but not
with as much frustration! But they essentially would have required Congress
to restate, per Art. I Sec. 8, the grant of authority when Congress
exercised its Art. IV, Sec. 3 authority to alter the local laws that would
apply to municipal governments when Oklahoma became a State. It wasn't
about the underlying source of authority, just the local laws that governed
the organization and powers of the municipalities.
Ok, maybe that was more than a summary...but it wasn't my full thinking at
least.
Matt
On Thu, Jun 29, 2023 at 2:26 PM david davis ddavislaw@live.com wrote:
I would appreciate any thoughts on the options for enforcement of
municipal ordinances against Indians in Indian Territory after Hooper
case. If municipal court doesnt have jurisdiction to enforce its
ordinances how can tribal courts enforce ordinances of the municipality?
JUSTIN HOOPER,
Plaintiff - Appellant,
v.
THE CITY OF TULSA,
Defendant - Appellee.
CHEROKEE NATION; CHICKASAW
NATION; CHOCTAW NATION OF
OKLAHOMA; QUAPAW NATION;
SEMINOLE NATION OF OKLAHOMA;
MUSCOGEE (CREEK) NATION; STATE
OF OKLAHOMA; OKLAHOMA
ASSOCIATION OF MUNICIPAL
ATTORNEYS,
Amici Curiae.
No. 22-5034
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:21-CV-00165-WPJ-JFJ)
John
CONFIDENTIALITY NOTE: *This transmission is protected by the Electronic
Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be
delivered only to the named addressee(s) This e-mail message is intended
only for the personal use of the recipient(s) named above. This message is
or may be an attorney-client communication and as such privileged and
confidential. If you are not an intended recipient, you may not review,
copy or distribute this message. If you have received this communication in
error, please notify us immediately by e-mail and delete the original
message. *
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.com
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Because Tulsa’s ordinances do not apply to tribal members, is Tulsa required to provide municipal services to tribal members?
Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
' 405.217.7700 | 6 405.366.5425 | • rick.knighton@normanok.govmailto:rick.knighton@normanok.gov | þ www.normanok.govhttp://www.normanok.gov/
This e-mail is the property of the City Attorney’s office, City of Norman, Oklahoma, and the information contained in this e-mail is protected by the attorney-client and/or the attorney work product privilege. It is intended only for the use of the individual named above and the privileges are not waived by virtue of this having been sent by e-mail. If the person actually receiving this message or any other reader of the message is not the named recipient or the employee or agent responsible to deliver it to the named recipient, any use, dissemination, distribution, or copying of the communication is strictly prohibited. If you have received this e-mail in error, please immediately notify us and return the original message.
From: Matt Love matt.love@gmail.com
Sent: Thursday, June 29, 2023 4:36 PM
To: david davis ddavislaw@live.com
Cc: oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] Re: Hooper vs. City of Tulsa 10th Circuit
I'm working on an email to OMAG Member Police Chiefs and City Attorneys/Prosecutors in the McGirt affected area and I'll be happy to share it here if there's enough interest. But I'll offer a summary of my initial thoughts in this email.
As to David's question, I suppose a Tribe could adopt a Tribal Code provision that essentially adopted, by reference, the municipal code of each Municipality within their reservation limits. I've heard that some of the Tribes have done something similar post-McGirt as it relates to adopting Titles 21, 47 and 63. I'm not personally a fan of them doing this - the underlying logic behind the Supreme Court's jurisdictional cases relates to the power of Tribes and Tribal members to make their own laws and be governed by them. By adopting Municipal ordinances by reference, they certainly would be exercising that power and, by doing so, essentially ceding power to the municipalities to change the ordinances that apply to their members.
My first comment is essentially it ain't over 'till it's over. Tulsa can file a Cert Petition (and I really hope they do). I believe their deadline is 9/26/2023 unless they seek rehearing en banc. If they are looking filing a Cert Petition, they likely will be talking about possibly seeking rehearing en banc if for no other reason than to ensure that there's no chance their Cert Petition gets considered at the Court's first conference after their summer recess (aka the "long" conference).
My next comment is about the binding nature of Hooper. My recollection is that only Supreme Court opinions are binding precedent on the Court of Crims when it comes to issues of Federal law and that 10th Circuit opinions, while persuasive, are not binding. I'm not saying we can simply ignore Hooper (if I'm right, which I'm not sure whether I am, about the effect of 10th Circuit opinions on State and local prosecutions). In fact, even if I am right, I couldn't fault a Municipal Judge for abiding by Hooper.
I think Municipal Judges are bound to evaluate their jurisdiction in light of the most recent analysis from Castro-Huerta. Two steps. Step 1 - is there express Federal preemption. The answer should be no in light of Castro-Huerta. Step 2 - is the exercise of Oklahoma's inherent sovereign jurisdiction (which we are vested with) preempted via a Bracker balancing analysis which goes to whether the exercise would infringe on Tribal self governance. Of note is footnote 5 in Hooper. OAMA's Amicus brief argued that Tulsa had jurisdiction over Mr. Hooper since he was a Choctaw Indian and the crime occured within the Creek reservation. Applying Bracker, that would mean that Tulsa would have had jurisdiction without even reaching Section 14 of the Curtis Act (since, under Bracker, an Indian who acts outside their own Indian Country, including within the Indian Country of another Tribe, is subject to inherent State jurisdiction). The Court declined to consider that argument in footnote 5 but did state that it would "leave resolution of this issue for a case where it is properly raised by the parties." But applying Bracker, if the Defendant is a member of the Tribe within whose reservation the crime occured, then clearly we could not exercise jurisdiction pursuant to the State's inherent jurisdiction.
Castro-Huerta makes clear that the purpose of express Congressional grants of jurisdiction are to allow jurisdiction to be exercised when it would otherwise be preempted under Step 2 of the Castro-Huerta analysis. That's where Section 14 comes in. With all due respect to the 10th Circuit, I think they wildly missed the mark on this one. Their logic was essentially - Section 14 did several things for municipalities, but only for certain municipalities. Those were the municipalities authorized and organized per Mansfield's Digest. Once Oklahoma became a State, the laws applicable to municipalities within the borders changed from the laws in Mansfield's Digest to Oklahoma State law. Since Section 14 didn't provide for any powers or authority for municipalities organized under Oklahoma law, it no longer applies. Basically, that Section 14's grant was conditional, and that condition was that it only applied when we were operating under the territorial laws.
Respectfully, that's just wrong. Congress is (supposedly) limited in its authority and when it acts it must do so pursuant to some authorization in the Constitution. When Congress touched upon Indian affairs, it exercised Art. I, Sec. 8 authority. When Congress acted as the territorial legislature for the Indian Territory, it exercised Art. IV, Sec. 3 authority. When Congress subjected Indians to Municipal ordinances it exercised Art. I, Sec. 8 authority. When Congress opened the door to Statehood and provided that the first set of State laws would be the laws from the Oklahoma Territory, it exercised Art. IV, Sec. 3 authority. Mansfield's Digest was put into place by Congress per Art. IV, Sec. 3. Congress exercised this power just about anytime it passed an Organic Act so that there would be an initial set of local, territorial laws. What was unique about the Indian Territory is that there was not a local, territorial legislature who could then amend those local laws and adopt new ones. So Congress filled that void, acting as the territorial legislature when it pulled more provisions from Mansfield's into the Indian Territory and also when it modified, via Section 14, the process for municipal incorporation. But since two territories were being combined into 1 State, Congress had to address what the initial, first set of State laws would be. It went with the laws from the Oklahoma Territory. But this was just a shift in local laws. Mansfield's Digest, when applicable to Indian Territory, was not a set of Federal laws. They were local laws, and then the local laws changed to the first set of Oklahoma laws.
This might be a bad analogy, but imagine this. The Oklahoma Legislature adopts a provision in Title 21 that states that "A Municipality that has adopted a Council Manager Form of Government pursuant to 11 O.S. 10-101 through 10-121, shall have the power to enforce ordinances related to [fill in the blank felony charge that we currently can't prosecute]." 9 years later, the Legislature overhauls several Titles and decides to move the Municipal Code to a new Title 86. And let's just say that they made substantive changes to the statutes on the CM form of government. None of the cities and towns ceased to exist. It would just be that the statutes that govern their organization and authorization to act would have changed. Would anyone seriously argue that the statute in Title 21 would no longer apply? Or would we fully expect the Court to look and reason that the same legislature that adopted the Title 21 authorization was the same legislature that made the change in the laws applicable to the entities that could use that Title 21 authorization?
Congress created the local laws for municipal incorporation. Congress granted those municipalities authority to prosecute Indians. Congress entered into an Agreement with the Creek Nation that expressly stated that Section 14 would remain in full force and effect within the Creek reservation. Congress then shifted the body of local laws, including the laws related to municipalities and municipal incorporation, to a new set of local laws and gave up its authority to further tinker in those local laws by admitting Oklahoma as a State. Essentially, Hooper would require that Congress have come back and stated that Municipalities organized and authorized under Oklahoma law can exercise jurisdiction. Why would it need to say that - it already said they could exercise jurisdiction before it then said that a new set of local laws apply (and keep in mind, local laws, be they territorial laws or State laws, cannot grant jurisdiction over Indians within Indian Country - only a Congressional grant under Art. I, Sec. 8 can do so).
The Tribes have been making an argument off and on that the real issue is the source of sovereign authority. Their argument is essentially that, since there was no State, there was no inherent State sovereignty that the Municipalities could exercise. As such, municipalities within the Indian Territory were instrumentalities or political subdivisions of the Federal government. Congress granted jurisdiction via Section 14 to its own political subdivisions. But the underlying source of Municipal authority shifted to the inherent sovereign authority of the State of Oklahoma at Statehood. And Congress never granted Oklahoma political subdivisions any authority to exercise jurisdiction over Indians within Indian Country. So, the argument goes, the municipalities could only exercise this grant of jurisdiction so long as they were acting under Federal authority. If the Court had incorporated this logic in Hooper, I would disagree but not with as much frustration! But they essentially would have required Congress to restate, per Art. I Sec. 8, the grant of authority when Congress exercised its Art. IV, Sec. 3 authority to alter the local laws that would apply to municipal governments when Oklahoma became a State. It wasn't about the underlying source of authority, just the local laws that governed the organization and powers of the municipalities.
Ok, maybe that was more than a summary...but it wasn't my full thinking at least.
Matt
On Thu, Jun 29, 2023 at 2:26 PM david davis <ddavislaw@live.commailto:ddavislaw@live.com> wrote:
I would appreciate any thoughts on the options for enforcement of municipal ordinances against Indians in Indian Territory after Hooper case. If municipal court doesnt have jurisdiction to enforce its ordinances how can tribal courts enforce ordinances of the municipality?
JUSTIN HOOPER,
Plaintiff - Appellant,
v.
THE CITY OF TULSA,
Defendant - Appellee.
CHEROKEE NATION; CHICKASAW
NATION; CHOCTAW NATION OF
OKLAHOMA; QUAPAW NATION;
SEMINOLE NATION OF OKLAHOMA;
MUSCOGEE (CREEK) NATION; STATE
OF OKLAHOMA; OKLAHOMA
ASSOCIATION OF MUNICIPAL
ATTORNEYS,
Amici Curiae.
No. 22-5034
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:21-CV-00165-WPJ-JFJ)
John
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com
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There goes Rick poking the bear!
This goes to the fundamental problem with Indian Country jurisdiction in
Oklahoma. Every single person we'd be talking about is a citizen of the
United States and the State of Oklahoma. If they live in Tulsa, that means
they get to vote for their City Councilmember who will vote on ordinances
that, if they are Indian, may not apply to them. I say "may" because Tribal
Member Indians are protected while acting within their own reservation (but
not outside, including within another Tribe's reservation) while Indians in
General are protected while acting within all Indian Country (or maybe not
if the Court sticks with its introduction of Bracker into the criminal
jurisdictional analysis). Even if a Tulsa resident is a Creek Indian and
acting within the portions of Tulsa that are within the Creek reservation,
they are still paying sales tax...now, they shouldn't be (unless Hooper gets
reversed - since Section 14 does more than grant criminal jurisdiction, it
also grants jurisdiction to tax) since they shouldn't be subject to State
taxing power for on reservation activity. But I don't know that all that
many people are applying for refunds of their income and sale tax paid for
on reservation activity.
Also keep in mind that an Indian can be the victim of a crime perpetrated
by a non-Indian. We have jurisdiction over that non-Indian thanks to
Castro-Huerta.
I can't emphasize enough the importance of getting Hooper reversed. As a
general rule, we should not be able to get sales tax for sales to a Tribal
member Indian that occur within their own Tribe's reservation. Section 14
didn't just address the applicability of ordinances to Indians, it also
addressed the ability to tax. If Section 14 applies to us still, then that
gives us a very strong argument to continue to receive sales tax like
normal. If it doesn't apply to us, well, then sales tax as to Tribal Member
Indians will be the next shoe to drop. In many communities, there are large
shares of their populations that are members of the Tribe within whose
reservation the City/Town is located...If they lose all that sales tax, I
don't see how they survive.
Matt
On Fri, Jun 30, 2023 at 2:09 PM Rick Knighton Rick.Knighton@normanok.gov
wrote:
Because Tulsa’s ordinances do not apply to tribal members, is Tulsa
required to provide municipal services to tribal members?
Rickey J. Knighton II | Assistant City Attorney | City of Norman
201 West Gray | P.O. Box 370 | Norman, Oklahoma 73070
' 405.217.7700 | 6 405.366.5425 | + rick.knighton@normanok.gov | þ
www.normanok.gov
This e-mail is the property of the City Attorney’s office, City of Norman,
Oklahoma, and the information contained in this e-mail is protected by the
attorney-client and/or the attorney work product privilege. It is intended
only for the use of the individual named above and the privileges are not
waived by virtue of this having been sent by e-mail. If the person actually
receiving this message or any other reader of the message is not the named
recipient or the employee or agent responsible to deliver it to the named
recipient, any use, dissemination, distribution, or copying of the
communication is strictly prohibited. If you have received this e-mail in
error, please immediately notify us and return the original message.
From: Matt Love matt.love@gmail.com
Sent: Thursday, June 29, 2023 4:36 PM
To: david davis ddavislaw@live.com
Cc: oama@lists.imla.org
Subject: EXTERNAL EMAIL : [Oama] Re: Hooper vs. City of Tulsa 10th
Circuit
I'm working on an email to OMAG Member Police Chiefs and City
Attorneys/Prosecutors in the McGirt affected area and I'll be happy to
share it here if there's enough interest. But I'll offer a summary of my
initial thoughts in this email.
As to David's question, I suppose a Tribe could adopt a Tribal Code
provision that essentially adopted, by reference, the municipal code of
each Municipality within their reservation limits. I've heard that some of
the Tribes have done something similar post-McGirt as it relates to
adopting Titles 21, 47 and 63*. *I'm not personally a fan of them doing
this - the underlying logic behind the Supreme Court's jurisdictional cases
relates to the power of Tribes and Tribal members to make their own laws
and be governed by them. By adopting Municipal ordinances by reference,
they certainly would be exercising that power and, by doing so, essentially
ceding power to the municipalities to change the ordinances that apply to
their members.
My first comment is essentially it ain't over 'till it's over. Tulsa
can file a Cert Petition (and I really hope they do). I believe their
deadline is 9/26/2023 unless they seek rehearing en banc. If they are
looking filing a Cert Petition, they likely will be talking about possibly
seeking rehearing en banc if for no other reason than to ensure that
there's no chance their Cert Petition gets considered at the Court's first
conference after their summer recess (aka the "long" conference).
My next comment is about the binding nature of Hooper. My recollection
is that only Supreme Court opinions are binding precedent on the Court of
Crims when it comes to issues of Federal law and that 10th Circuit
opinions, while persuasive, are not binding. I'm not saying we can simply
ignore Hooper (if I'm right, which I'm not sure whether I am, about the
effect of 10th Circuit opinions on State and local prosecutions). In fact,
even if I am right, I couldn't fault a Municipal Judge for abiding by
Hooper.
I think Municipal Judges are bound to evaluate their jurisdiction in light
of the most recent analysis from Castro-Huerta. Two steps. Step 1 - is
there express Federal preemption. The answer should be no in light of
Castro-Huerta. Step 2 - is the exercise of Oklahoma's inherent
sovereign jurisdiction (which we are vested with) preempted via a
Bracker balancing analysis which goes to whether the exercise would
infringe on Tribal self governance. Of note is footnote 5 in *Hooper. *
OAMA's Amicus brief argued that Tulsa had jurisdiction over Mr. Hooper
since he was a Choctaw Indian and the crime occured within the Creek
reservation. Applying Bracker, that would mean that Tulsa would have
had jurisdiction without even reaching Section 14 of the Curtis Act (since,
under Bracker, an Indian who acts outside their own Indian Country,
including within the Indian Country of another Tribe, is subject to
inherent State jurisdiction). The Court declined to consider that argument
in footnote 5 but did state that it would "leave resolution of this issue
for a case where it is properly raised by the parties." But applying
Bracker, if the Defendant is a member of the Tribe within whose
reservation the crime occured, then clearly we could not exercise
jurisdiction pursuant to the State's inherent jurisdiction.
Castro-Huerta makes clear that the purpose of express Congressional
grants of jurisdiction are to allow jurisdiction to be exercised when it
would otherwise be preempted under Step 2 of the Castro-Huerta analysis.
That's where Section 14 comes in. With all due respect to the 10th Circuit,
I think they wildly missed the mark on this one. Their logic was
essentially - Section 14 did several things for municipalities, but only
for certain municipalities. Those were the municipalities authorized and
organized per Mansfield's Digest. Once Oklahoma became a State, the laws
applicable to municipalities within the borders changed from the laws in
Mansfield's Digest to Oklahoma State law. Since Section 14 didn't provide
for any powers or authority for municipalities organized under Oklahoma
law, it no longer applies. Basically, that Section 14's grant was
conditional, and that condition was that it only applied when we were
operating under the territorial laws.
Respectfully, that's just wrong. Congress is (supposedly) limited in its
authority and when it acts it must do so pursuant to some authorization in
the Constitution. When Congress touched upon Indian affairs, it exercised
Art. I, Sec. 8 authority. When Congress acted as the territorial
legislature for the Indian Territory, it exercised Art. IV, Sec. 3
authority. When Congress subjected Indians to Municipal ordinances it
exercised Art. I, Sec. 8 authority. When Congress opened the door to
Statehood and provided that the first set of State laws would be the laws
from the Oklahoma Territory, it exercised Art. IV, Sec. 3 authority.
Mansfield's Digest was put into place by Congress per Art. IV, Sec. 3.
Congress exercised this power just about anytime it passed an Organic Act
so that there would be an initial set of local, territorial laws. What was
unique about the Indian Territory is that there was not a local,
territorial legislature who could then amend those local laws and adopt new
ones. So Congress filled that void, acting as the territorial legislature
when it pulled more provisions from Mansfield's into the Indian Territory
and also when it modified, via Section 14, the process for municipal
incorporation. But since two territories were being combined into 1 State,
Congress had to address what the initial, first set of State laws would be.
It went with the laws from the Oklahoma Territory. But this was just a
shift in local laws. Mansfield's Digest, when applicable to Indian
Territory, was not a set of Federal laws. They were local laws, and then
the local laws changed to the first set of Oklahoma laws.
This might be a bad analogy, but imagine this. The Oklahoma Legislature
adopts a provision in Title 21 that states that "A Municipality that has
adopted a Council Manager Form of Government pursuant to 11 O.S. 10-101
through 10-121, shall have the power to enforce ordinances related to [fill
in the blank felony charge that we currently can't prosecute]." 9 years
later, the Legislature overhauls several Titles and decides to move the
Municipal Code to a new Title 86. And let's just say that they made
substantive changes to the statutes on the CM form of government. None of
the cities and towns ceased to exist. It would just be that the statutes
that govern their organization and authorization to act would have changed.
Would anyone seriously argue that the statute in Title 21 would no longer
apply? Or would we fully expect the Court to look and reason that the same
legislature that adopted the Title 21 authorization was the same
legislature that made the change in the laws applicable to the entities
that could use that Title 21 authorization?
Congress created the local laws for municipal incorporation. Congress
granted those municipalities authority to prosecute Indians. Congress
entered into an Agreement with the Creek Nation that expressly stated that
Section 14 would remain in full force and effect within the Creek
reservation. Congress then shifted the body of local laws, including
the laws related to municipalities and municipal incorporation, to a new
set of local laws and gave up its authority to further tinker in those
local laws by admitting Oklahoma as a State. Essentially, Hooper would
require that Congress have come back and stated that Municipalities
organized and authorized under Oklahoma law can exercise jurisdiction. Why
would it need to say that - it already said they could exercise
jurisdiction before it then said that a new set of local laws apply (and
keep in mind, local laws, be they territorial laws or State laws, cannot
grant jurisdiction over Indians within Indian Country - only a
Congressional grant under Art. I, Sec. 8 can do so).
The Tribes have been making an argument off and on that the real issue is
the source of sovereign authority. Their argument is essentially that,
since there was no State, there was no inherent State sovereignty that the
Municipalities could exercise. As such, municipalities within the Indian
Territory were instrumentalities or political subdivisions of the Federal
government. Congress granted jurisdiction via Section 14 to its own
political subdivisions. But the underlying source of Municipal authority
shifted to the inherent sovereign authority of the State of Oklahoma at
Statehood. And Congress never granted Oklahoma political subdivisions any
authority to exercise jurisdiction over Indians within Indian Country. So,
the argument goes, the municipalities could only exercise this grant of
jurisdiction so long as they were acting under Federal authority. If the
Court had incorporated this logic in Hooper, I would disagree but not
with as much frustration! But they essentially would have required Congress
to restate, per Art. I Sec. 8, the grant of authority when Congress
exercised its Art. IV, Sec. 3 authority to alter the local laws that would
apply to municipal governments when Oklahoma became a State. It wasn't
about the underlying source of authority, just the local laws that governed
the organization and powers of the municipalities.
Ok, maybe that was more than a summary...but it wasn't my full thinking at
least.
Matt
On Thu, Jun 29, 2023 at 2:26 PM david davis ddavislaw@live.com wrote:
I would appreciate any thoughts on the options for enforcement of
municipal ordinances against Indians in Indian Territory after Hooper
case. If municipal court doesnt have jurisdiction to enforce its
ordinances how can tribal courts enforce ordinances of the municipality?
JUSTIN HOOPER,
Plaintiff - Appellant,
v.
THE CITY OF TULSA,
Defendant - Appellee.
CHEROKEE NATION; CHICKASAW
NATION; CHOCTAW NATION OF
OKLAHOMA; QUAPAW NATION;
SEMINOLE NATION OF OKLAHOMA;
MUSCOGEE (CREEK) NATION; STATE
OF OKLAHOMA; OKLAHOMA
ASSOCIATION OF MUNICIPAL
ATTORNEYS,
Amici Curiae.
No. 22-5034
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:21-CV-00165-WPJ-JFJ)
John
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s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.com
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It is not a very good system, but the Cherokee Nation has an agreement that allows municipalities with cross-deputization agreements to enforce Cherokee law. There are some major kinks, but it appears to be working for traffic offenses. Not sure how it works in non-traffic situations.
Good Luck!
Mark H. Ramsey
For the Firm
Taylor, Foster, Mallett,
Downs, Ramsey & Russell, P.C.
P.O. Box 309
Claremore, OK 74018
918-343-4100
918-343-4900 fax
mramsey@soonerlaw.commailto:apixley@soonerlaw.com
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From: david davis ddavislaw@live.com
Sent: Thursday, June 29, 2023 2:26 PM
To: oama@lists.imla.org
Subject: [Oama] Hooper vs. City of Tulsa 10th Circuit
Notice: This email is from an external source. Do not open attachments or click on links from unknown senders or unexpected e-mail.
I would appreciate any thoughts on the options for enforcement of municipal ordinances against Indians in Indian Territory after Hooper case. If municipal court doesnt have jurisdiction to enforce its ordinances how can tribal courts enforce ordinances of the municipality?
JUSTIN HOOPER,
Plaintiff - Appellant,
v.
THE CITY OF TULSA,
Defendant - Appellee.
CHEROKEE NATION; CHICKASAW
NATION; CHOCTAW NATION OF
OKLAHOMA; QUAPAW NATION;
SEMINOLE NATION OF OKLAHOMA;
MUSCOGEE (CREEK) NATION; STATE
OF OKLAHOMA; OKLAHOMA
ASSOCIATION OF MUNICIPAL
ATTORNEYS,
Amici Curiae.
No. 22-5034
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:21-CV-00165-WPJ-JFJ)
John
CONFIDENTIALITY NOTE: This transmission is protected by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521 and intended to be delivered only to the named addressee(s) This e-mail message is intended only for the personal use of the recipient(s) named above. This message is or may be an attorney-client communication and as such privileged and confidential. If you are not an intended recipient, you may not review, copy or distribute this message. If you have received this communication in error, please notify us immediately by e-mail and delete the original message.
s/ David A. Davis
LAW OFFICE OF DAVID A. DAVIS
4312 N. Classen Blvd.
OKLAHOMA CITY, OK 73118
405 840-6353
405 557-0777 (FAX)
ddavislaw@live.commailto:ddavislaw@live.com