City of Tulsa v. Shaffer

Note: The author of this brief is unknown.



Oklahoma Municipalities Provisionally Incorporated Under Arkansas Law Prior to

Statehood Have No Jurisdiction Over On-Reservation Offenses Committed By or Against

Indians.



INTRODUCTION



Last year the Supreme Court held in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), that the

Muscogee (Creek) Reservation is intact; that it is "Indian country” under 18 U.S.C. §1151(a); and

that Oklahoma has no criminal jurisdiction over a crime by an Indian within the boundaries of the

reservation. The Oklahoma Court of Criminal Appeals (OCCA) has more recently concluded that

the Cherokee Reservation, like the Creek Reservation, is also intact and "Indian country,” and that

Oklahoma had no jurisdiction over an Indian defendant for on-reservation crimes. Hogner v. State,

2021 OK CR 4 ¶18, __ P. 3d. __ (Okla. Crim. App. 2021) (holding "the District Court

appropriately applied McGirt”); see also Spears v. State, 2021 OK CR 7, __ P.3d __ (Okla. Crim.

App. 2021).1 The McGirt, Hogner, Spears, and Cole rulings are binding on Oklahoma

municipalities, including the City of Tulsa (Tulsa), a sub-division of Oklahoma organized and

chartered under Oklahoma law and located within the two reservations. 2 As recognized in McGirt, Oklahoma (and its municipalities) may lawfully exercise criminal jurisdiction only over non-Indian perpetrators of offenses against non-Indians in Indian country. McGirt, 140 S. Ct. at 2479, citing United States v. McBratney, 104 U.S. 621, 624 (1882). This authority and power is significant. McGirt, 140 S. Ct. at 2460. However, Tulsa has no



1 OCCA also concluded Oklahoma had no jurisdiction over a non-Indian defendant convicted of a crime against a Cherokee citizen that occurred on the Cherokee Nation's Reservation. See Cole v. State, 2021 OK CR 10 ¶16, __ P.3d __(Okla. Crim. App. 2021).



2 Tulsa's municipal limits also include a portion of the Osage Reservation. At this writing, OCCA has not determined whether a McGirt analysis will result in the conclusion that the boundaries of the Osage Reservation remain intact. See Young v. State, PCD-2020-954 Order Remanding for Evidentiary Hearing and Ruling on Application for Post-Conviction Relief (Jan. 27, 2021).



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jurisdiction over offenses by or against Indians within the Cherokee Reservation, which, according

to Tulsa, includes a quarter of Tulsa's land area and sixteen percent of its people.3 Depending on

the Indian or non-Indian status of the offender and/or the victim in each case, criminal jurisdiction

for such offenses resides with the federal government under the Major Crimes Act, 18 U.S.C. §

1153, or the General Crimes Act, 18 U.S.C. § 1152, or with the Cherokee Nation under its inherent

sovereignty.4 Yet despite McGirt, or perhaps in defiance of it, Tulsa continues to prosecute on-

reservation crimes by or against Indians that occur within city limits within the boundaries of the

Creek or Cherokee Reservations. Tulsa's justification for such prosecutions, which has recently

been adopted by the Presiding Judge of the Tulsa Municipal Criminal Court,5 is based on the

unprecedented argument that its jurisdiction to prosecute violations of the Tulsa municipal code

by or against Indians in Indian country arises from its pre-statehood incorporation as a municipality

governed by Arkansas law. In making this argument, Tulsa seeks to elevate section 14 of the Act

of June 28, 1898, ch. 517, 30 Stat. 495 (Curtis Act), into a congressional grant of uber-sovereignty

that supersedes that of Oklahoma, the United States, and the Cherokee and Muscogee Nations.



This radical argument illustrates a fundamental misunderstanding of law and turns history on its

head.



I. TULSA'S CLAIMED JURISDICTION TO PROSECUTE MUNICIPAL ON-

RESERVATION OFFENSES BY OR AGAINST INDIANS IS CONTRARY TO

MCGIRT, HOGNER, SPEARS, AND COLE.



3 See Brief of City of Tulsa as Amicus Curiae, McGirt v. Oklahoma, Case No. 18-952 (March 3, 2020)

at 28 (McGirt Tulsa Amicus).



4 See Indian Country Criminal Jurisdiction Chart: https://www.justice.gov/usao-

wdok/page/file/1300046/download (last visited 4-7-2021).



5 See City of Tulsa v. Shaffer, Case No. 6108204, Memorandum and Order (Feb. 2, 2021) (Shaffer).



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Tulsa asserts criminal jurisdiction over offenses on the Cherokee and Muscogee

Reservations over all persons "without regard to race,” including jurisdiction over offenses by or

against Indians, even though the State of Oklahoma (Oklahoma) has no such jurisdiction under the

historic ruling in McGirt and the OCCA's rulings in Hogner, Spears, and Cole. In an about-face

from the view Tulsa urged as amicus in McGirt,6 Tulsa now claims that, despite these precedents,

it derives criminal jurisdiction over crime on the Cherokee and Creek Reservations from an

isolated and temporary provision in section 14 of the Curtis Act, a pre-statehood congressional act

meant to force the Five Tribes to allot their reservations. § 14, 30 Stat. 495. That section provided

that "all inhabitants” of cities and towns organized under Arkansas law, "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.” Id. Not only is Tulsa's reliance on this provision faulty, as discussed in more detail in part II, it merely repeats a failed argument in McGirt that the Curtis Act and other pre-statehood federal statutes granted jurisdiction to Oklahoma over crimes committed by Indians on the Muscogee

Reservation. These statutes included §28 of the Curtis Act (concerning abolishment of Creek

courts), and the Act of June 7, 1897, ch. 3, 30 Stat. 62, 83 (granting federal courts in Indian

Territory "exclusive jurisdiction” to try "all criminal causes for the punishment of any offense

irrespective of race”). McGirt, 140 S. Ct. at 2476. Tulsa's reliance on pre-statehood statutes is

contrary to McGirt, which rejected Oklahoma's similar argument, noting that the statutes were

only "statutory artifacts” from Oklahoma's "territorial history.” Id.



6 In McGirt, Tulsa accepted that if Oklahoma were determined to have no criminal jurisdiction for

on-reservation offenses committed by or against Indians, Tulsa would likewise have no jurisdiction.

See McGirt Tulsa Amicus at 6, 26-28, 30.



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II. THE CURTIS ACT WAS TEMPORARY AND PROVISIONAL AND DOES NOT

AUTHORIZE TULSA TO EXERCISE JURISDICTION OVER MUNICIPAL ON-

RESERVATION OFFENSES BY OR AGAINST INDIANS.



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Tulsa asserts criminal jurisdiction over offenses on the Cherokee and Muscogee

Reservations over all persons "without regard to race,” including jurisdiction over offenses by or

against Indians, even though the State of Oklahoma (Oklahoma) has no such jurisdiction under the

historic ruling in McGirt and the OCCA's rulings in Hogner, Spears, and Cole. In an about-face

from the view Tulsa urged as amicus in McGirt,6 Tulsa now claims that, despite these precedents,

it derives criminal jurisdiction over crime on the Cherokee and Creek Reservations from an

isolated and temporary provision in section 14 of the Curtis Act, a pre-statehood congressional act

meant to force the Five Tribes to allot their reservations. § 14, 30 Stat. 495. That section provided

that "all inhabitants” of cities and towns organized under Arkansas law, "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.” Id. Not only is Tulsa's reliance on this provision faulty, as discussed in more detail in part II,

it merely repeats a failed argument in McGirt that the Curtis Act and other pre-statehood federal

statutes granted jurisdiction to Oklahoma over crimes committed by Indians on the Muscogee

Reservation. These statutes included §28 of the Curtis Act (concerning abolishment of Creek

courts), and the Act of June 7, 1897, ch. 3, 30 Stat. 62, 83 (granting federal courts in Indian

Territory "exclusive jurisdiction” to try "all criminal causes for the punishment of any offense

irrespective of race”). McGirt, 140 S. Ct. at 2476. Tulsa's reliance on pre-statehood statutes is

contrary to McGirt, which rejected Oklahoma's similar argument, noting that the statutes were

only "statutory artifacts” from Oklahoma's "territorial history.” Id.

6 In McGirt, Tulsa accepted that if Oklahoma were determined to have no criminal jurisdiction for

on-reservation offenses committed by or against Indians, Tulsa would likewise have no jurisdiction.

See McGirt Tulsa Amicus at 6, 26-28, 30.

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II. THE CURTIS ACT WAS TEMPORARY AND PROVISIONAL AND DOES NOT

AUTHORIZE TULSA TO EXERCISE JURISDICTION OVER MUNICIPAL ON-

RESERVATION OFFENSES BY OR AGAINST INDIANS.

A. The Criminal Jurisdiction of Municipalities in Indian Territory under Section 14 of the

Curtis Act was Limited and Temporary. In 1890, Congress passed the Act of May 2, 1890, ch. 182, 26 Stat. 81 (1890 Act). The

1890 act established Oklahoma Territory, to be governed by a territorial government based on

Nebraska laws. Id., § 1-28. The 1890 act left the eastern portion of Indian Territory intact, subject

to federal and tribal jurisdiction, id., §§ 29-44, but authorized Arkansas law to be applied there,

because Indian Territory "was without a local legislature to legislate to meet local needs.” Inc.

Town of Hartshorne v. Inc. Town of Haileyville, 1909 OK 240, 104 P. 49, 50 (1909). By 1898, non-citizens had begun settling Tulsa along newly established railroad lines.

These inhabitants had no title to the lots and blocks upon which they built improvements, and no

local self-government. The Curtis Act was "enacted to afford immediate local municipal

governments” in Indian Territory towns on a provisional basis. Inc. Town of Hartshorne, 104 P.

at 50. Section 14 of the Curtis Act, which included the provision touted by Tulsa as its

congressional grant of jurisdiction in Indian country (i.e., that "all inhabitants” would be subject

to ordinances of towns organized under Arkansas law "without regard to race”), reserved towns

with populations of 200 or more from the inevitable allotment process. § 14, 30 Stat. 495. Section

14 further authorized Indian Territory towns with populations of 200 or more to incorporate

through a petition and election process.7 Such townsites were clearly established under federal

7 The Curtis Act provided a provisional process for Indian Territory towns to form governments

prior to allotment and statehood. The McGirt dissenters recognized that non-Indian settlers who

founded "flourishing towns” along railway lines needed government. The Curtis Act permitted such

governments to have the same powers and rights as Arkansas municipalities on a temporary basis.

McGirt, 140 S. Ct. at 2484, 2490, J. Roberts, dissenting.

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authority. Id.,104 P. at 50 (confirming that municipalities can only be created through the exercise

of the power of the sovereignty). These townsites, as authorized by section 14, were organized

under Arkansas state law and possessed only the "powers” of similar Arkansas municipalities.8 Tulsa's theory that section 14 grants Tulsa jurisdiction over on-reservation crimes

committed by or against Indians ignores the complexities of that section. For example, section 14

provided that for its purposes "all the laws of said State of Arkansas herein referred to, so far as

applicable, are hereby put in force in said Territory.” § 14, 30 Stat. 495. It authorized the United

States Courts serving Indian Territory to exercise "jurisdiction to enforce the same, and to punish

any violation thereof,” and required the city or town councils to "pass such ordinances as may be

necessary for the purpose of making the laws extended over them applicable to them and for

carrying the same into effect.” Id. It provided that the "mayors of such cities and towns, in addition

to their other powers,” would have "the same jurisdiction in all civil and criminal cases arising

within the corporate limits of such cities and towns as, and coextensive with, United States

commissioners in the Indian Territory.” Id. The United States commissioners' jurisdiction had been earlier defined in the 1890 Act, §

39, 26 Stat. at 98-99,9 and included "all the powers of commissioners of circuit courts of the United

States;” authority to serve as ex officio notaries public to "solemnize marriages;” and authority to

"exercise all the powers conferred by the laws of Arkansas upon justices of the peace,” subject to

8 The status of a city or town as incorporated under Arkansas law before statehood should not be

confused with plats showing approximately 150 towns, including Tulsa and Red Fork, that contained

lots that were sold as required by the Curtis Act. McGirt, 140 S. Ct. at 2490. See HASTAIN'S TOWNSHIP

PLATS OF CREEK NATION (1910) (Hastain's) The Curtis Act's requirements for sale of town lots were

based on a town's population, not incorporation. 9 Sections 29-44 of the 1890 Act included provisions concerning the jurisdiction of the United States courts in what remained of Indian Territory after Oklahoma Territory was established in what is now western and north central Oklahoma as authorized by sections 1-28.



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the limitation that they would have no jurisdiction to try any cause where the value of the thing or

the amount in controversy exceeded $100 (one of the many limitations that Tulsa chooses to

ignore). Id.

The "mayors' courts and United States commissioners' courts were. . . given equally the

jurisdiction of justices of the peace courts of Arkansas.” Missouri, K. & T. Ry. Co. v. Phelps, 76

S.W. 285, 286 (Indian Terr. 1903), citing the 1890 Act and the Curtis Act, § 14, 30 Stat. 495, 499.

Strict implementation of Arkansas laws was required for purposes of a mayor's performance of

prosecutorial/judicial functions under section 14. "And as the city council is the creation of the

statute, and derives all its powers from it, it can pass no ordinance except such as the [Arkansas]

legislature, by statute, has authorized it to do.” In re English, 61 S.W. 992, 993 (Indian Terr. 1901)

(finding that a city ordinance was invalid under Arkansas law). Provisions in section 14 concerning municipal jurisdiction were clearly meant to provide

stop-gap remedies that did not survive statehood. Today, Tulsa's municipal judges (not mayors)

enforce Tulsa municipal codes consistent with Oklahoma statutes and the Oklahoma

Constitution—not Arkansas laws as previously required by section 14. B. The Creek and Cherokee Allotment Agreements Do Not Confirm Tulsa's Broad

Interpretation of Section 14 of the Curtis Act.

Tulsa relies on the provision in the 1901 Creek Allotment Act that "[n]o Act of Congress

or treaty provision inconsistent with this agreement shall be in force in said nation, except section

fourteen of [the Curtis Act], which shall continue in force as if this agreement had not been made.”

Creek Agreement, 31 Stat. 861, 872. The Cherokee Agreement contains a similar provision

continuing §14. See Act of July 1, 1902, ch. 1375, §73, 32 Stat. 716, 727. The Cherokee

Agreement, like the Creek Agreement, reserved town sites from allotment if set apart under the

1898 Curtis Act; contained detailed provisions concerning surveys, appraisals, establishment and

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disposition of town sites; and required compensation to occupants who had made improvements

on the lands. §§ 24(a), 38-44, 32 Stat. 719, 722-23; see Murphy v. Royal, 875 F.3d 896, 943 (10th

Cir. 2017), aff'd Murphy v. Sharp, 140 S. Ct. 2412 (2020) (Creek Agreement, ¶¶ 2,10, 11-14, 17,

24(a)). Tulsa ignores this context and reason for keeping section 14 of the Curtis Act in force while

the dispositions of Cherokee and Creek town site allotments were finalized.10 Section 14, together with section 15, was aimed at rewarding and protecting non-Indian

residents of cities and towns who had built improvements without authorization. §§ 14-15, 30 Stat.

495,499-501. Section 15 protected town sites from allotment, and afforded town residents, both

Indian and non-Indian, the opportunity to purchase town lots on which they had made

improvements. Section 14 fit into that general framework, by giving town residents an opportunity

to begin organizing towns and recognizing municipal authority governed by federal and Arkansas

law until a state was formed. The Creek and Cherokee Agreements addressed requirements for

town sites, likely superseding many of the Curtis Act provisions related to towns. See Murphy, 875

F.3d at 943 (describing the town site requirements in the Creek Agreement, §§ 11–22, 31 Stat.

861, 864-867). See superseding provisions in the Cherokee Agreement, §§ 38-57, 32 Stat. 719-

10 The Presiding Judge of the Tulsa Municipal Criminal Court in Shaffer considered whether the

Oklahoma Indian Welfare Act (OIWA), Act of June 26, 1936, ch. 831, 49 Stat. 1967, codified at 25

U.S.C. §§ 5201-5210, repealed section 14 of the Curtis Act. See Shaffer. The municipal judge

recognized that it "is clear” that it has been "determined that the OIWA repealed the portion of the

Curtis Act [in section 28] dealing with tribal courts” (thus enabling the Muscogee (Creek) Nation to

establish tribal courts), in Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1447 (D.C. Cir. 1988).

Notwithstanding the OIWA's general repealer ("[a]ll Acts or parts of Acts inconsistent herewith are

hereby repealed,”), the judge nevertheless chose to interpret the Hodel ruling to be limited to repeal

of section 28, and found that "the OIWA does not repeal Section 14 of the Curtis Act.” The municipal

judge failed to note that in Hodel, the Court expressly gave broad effect to the repealer, and rejected

an interpretation of the OIWA that "would result in a perpetuation of the piecemeal legislation

rather than its elimination.” Id. at 1445-46. In any event, it is not necessary to find that the OIWA

repealed section 14 for purposes of municipal jurisdiction, because any grant of authority for pre-

statehood (and pre-allotment) municipalities was meant to be, and was, temporary.



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725. The Creek and Cherokee Agreements' references to the continuation of section 14 in force

does not state or establish any intent that Congress intended municipalities to possess jurisdiction

in Indian country greater than state jurisdiction.11 C. The 1906 Oklahoma Enabling Act Confirms That Power Granted to Indian Territory Towns

under the Curtis Act Was Temporary.



After Oklahoma Territory was carved from Indian Territory in 1890, its territorial laws

were based on Nebraska laws, while courts in Indian Territory continued to implement certain

Arkansas laws specified by Congress. §§ 11, 2-35, 38-39, 41, 26 Stat. 81. The Oklahoma Enabling

Act changed this by providing that "the laws in force in the Territory of Oklahoma, as far as

applicable shall extend over and apply to said state [Oklahoma] until changed by the legislature

thereof.” Act of June 16, 1906, ch. 3335, § 13, 34 Stat. 267. (emphasis added). This enabled

Oklahoma courts, until such time as Oklahoma adopted its own criminal laws, to apply Oklahoma

Territory criminal laws to crimes subject to state jurisdiction, such as crimes by non-Indians

against non-Indians in Indian country. See McBratney, 104 U.S. at 624. The Enabling Act did not

continue the applicability of Nebraska or Arkansas laws; it did not even mention those laws. The Enabling Act also provided that officers of the state government formed under the new

constitution would exercise all the functions of state officers, and provided that "all laws in force

11 The cases cited by the municipal judge in the Shaffer order shed no light on whether municipal

courts in incorporated Indian Territory towns have present-day jurisdiction to prosecute on-

reservation crime by or against Indians. See Shaffer and Choctaw and Chickasaw Nations v. City of

Atoka, 207 F. 2d. 42 (10th Cir. 1953) and United States v. City of McAlester, 604 F.2d 42 (10th Cir.

1979). Both involved pre-statehood condemnation judgments obtained in United States Courts for

Indian Territory. In 1903 and 1907 judgments the Central District United States Court approved,

under §11 of the Curtis Act, the taking of unallotted tribal lands for specific municipal purposes.

Central to the challenges decades later was the claim that the United States had been an

indispensable party and had not consented to the pre-statehood taking. The decisions in favor the

municipalities were specific to the language in §11 and offer no support for Tulsa's current argument

under §14.

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in the Territory of Oklahoma at the time of the admission of said State into the Union shall be in

force throughout said State, except as modified or changed by this Act or by the constitution of the

State.” Id., § 21. It further provided that the laws of the United States would "have the same force

and effect within said State as elsewhere within the United States.” Id. These federal laws included

the General Crimes Act, 18 U.S.C. § 1152, and the Major Crimes Act, 18 U.S.C. § 1153, as

recognized in McGirt, 140 S. Ct. at 2470.12 The Enabling Act established that the new state would immediately operate under "a body of laws

applying with practical uniformity throughout the state.” Jefferson v. Fink, 247 U.S. 288, 291-93

(1918). Oklahoma's Constitution, in keeping with this policy of uniformity, required that "all laws

in force in the territory of Oklahoma” would remain in effect "until they expire by their own

limitation or are altered or repealed by law.” Id. at 293-294, citing Okla. Const., art. 25, § 2. Only

three months after statehood, the Oklahoma legislature established that cities and towns in

Oklahoma, including those in the former Indian Territory, would operate under Oklahoma state

law, as discussed in more detail in part III.B-C of this memo. III. TULSA DOES NOT HAVE GREATER JURISDICTION OVER INDIAN

COUNTRY THAN OKLAHOMA.



A. Tulsa Originated as a Creek Tribal Town. The citizens of the Muscogee Nation, traditionally a confederacy of tribal towns, were

forcibly removed from their ancestral homelands in Alabama to a treaty-created reservation in





12 Section 16 of the Enabling Act, as amended in 1907, required the transfer to the new federal courts

of prosecutions of "all crimes and offenses” committed within Indian Territory "which, had they been

committed within a State, would have been cognizable in the Federal courts.” Act of Mar. 4, 1907, ch.

2911, § 1, 34 Stat. 1286. Conversely, section 20 of the Enabling Act, as amended in 1907, established

Oklahoma courts as successors to federal courts in Indian Territory for those civil and criminal cases

that were not otherwise transferred to the new federal courts. §3, 34 Stat. 1286; see McGirt, 140 S. Ct.

at 2477.



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Indian Territory. Harjo v. Kleppe, 420 F. Supp. 1110, 1118 (D.D.C. 1976). The first Creeks to

arrive near present-day Tulsa in 1836 were the Locvpoka, who established their tribal town on the

east side of the Arkansas River.13 COBB, RUSSELL, "THE GREAT OKLAHOMA SWINDLE: RACE,

RELIGION, AND LIES IN AMERICA'S WEIRDEST STATE,” 48 (2020) (COBB). They placed coals and ash brought from their ancestral sacred fires at the base of a towering

tree, the historic Council Oak tree, located on the grounds of Creek Nation Council Oak Park.

COBB 48.14 The tribal town numbered only 247 in 1857.15 The town's members were nearly

annihilated in the Civil War, but some of its survivors rebuilt the town.16 B. The City of Tulsa's Incorporation Under Arkansas Law Before Enactment of the 1898

Curtis Act and Its Pre-Statehood Implementation of Arkansas Laws Enabled Non-Indian

Residents to Temporarily Perform Municipal Functions Pending Allotment and Statehood. In the fall of 1895, a federal judge sitting in the Vinita district ruled that Indian Territory

towns could organize municipal governments under Arkansas law. DEBO, ANGIE, "THE ROAD TO

DISAPPEARANCE” 341, 364 (1941) (DEBO, ROAD). Two years later, Tulsa formed a temporary

government through a petition process. On December 16, 1897, at least twenty "qualified voters”

filed a petition to incorporate Tulsa under Arkansas law. See Petition to Incorporate Tulsa, Indian

Territory. The United States Court in Indian Territory approved the petition on January 18, 1898,17





13 The word "Tulsa” derives from the Creek word, "Tallasi,” meaning "old town.” Where It All Began:



Muscogee (Creek) Nation Reflects Arrival to Indian Territory, History of Council Oak Tree, Muscogee

(Creek) Nation, News Release, 10-24-2018. The town was later referred to as "Tulsey Town.” DEBO,

"TULSA: FROM CREEK TOWN TO OIL CAPITOL,” 23.



14 The park is located at 1750 S. Cheyenne Avenue, Tulsa, Oklahoma.



15 Other Creek tribal towns that resettled near the Locvpoka on the Creek Reservation included Red

Fork, Broken Arrow, Glenpool, Sapulpa, and Sand Springs. COBB 47.



16 One of those returning survivors, Tuckabache, owned, as his allotment, 160 prime acres just south

of present-day downtown Tulsa. COBB 49, 51-52. See Hastain's (identifying Tuckabache allotment in

Section 13, south of land reserved from allotment for town of Tulsa).



17 Federal districts courts were not exercising legislative authority in incorporating such towns, but

rather making adjudicatory determinations as to population, number of petitioners, and other facts



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a few months before the Curtis Act was passed. See Court Proceedings of Northern District, Indian

Territory.18 At the time of incorporation, the town covered only a few blocks, as shown by the

smattering of structures built along the railroad line and Tulsa's Main Street.19 The population of

Tulsa in 1898 was 1,500. See Sanford Map. Tulsa operated its new government only briefly under Arkansas law during the provisional period before Oklahoma became a state by Proclamation of Nov. 16, 1907, 35 Stat. 2160-61.



During that time, the "Incorporated City of Tulsa, Indian Territory” approved a modest number of

ordinances, many of which addressed the needs of a newly formed town government by providing

for elections, official city positions, taxes, bond issues, and trade licenses. Other ordinances

concerned necessary infrastructure and essential services, including distribution of electricity and

natural gas, construction of streets, sidewalks, streetcars, trash collection, fire protection,

waterworks, and sewer services. Tulsa passed a few criminal ordinances regarding vagrancy,

morality, gambling, but otherwise generally applied the criminal laws of Arkansas before

statehood. See Ordinance No. 25.20 Certainly today, Tulsa does not prosecute any offenses under

Arkansas statutes, but under ordinances it passed by authority of Oklahoma.



C. Tulsa Was Established Under Oklahoma Law Almost Immediately After Statehood.



as required by Arkansas law. Inc. Town of Hartshorne, 104 P. at 50 (citing Manfs. Dig. Ark. 1889

c.29 (Ind. T. Ann. St. 1899, c.15)). 18 The Tulsa City Clerk produced the 1897 petition for incorporation and the 1898 court proceedings.



The boundary description and map reported to have been submitted with the petition were not

produced. However, we know Tulsa was very small in 1898. An insurance company map of the time

shows a few buildings and businesses built along the railway line. The 1898 town did not extend into

the Cherokee Reservation. See Sanborn-Perris Fire Insurance Map, Tulsa, Creek Nation, Indian

Territory, November 1898 (Sanborn Map). 19 The 1898 structures along S. and N. Rail Road Avenue, Archer, Lindsey, Main, 4th, 5th, and 6th Streets included, among other smaller structures, two hotels, general stores, drug stores, hardware

stores, a bank, a lumber company, a flour mill, liveries, and an agricultural supply business. See

Sanborn Map. 20 The ordinances from 1900-1905 are available from the Tulsa City Clerk.



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Tulsa's claim that its present jurisdiction is untethered to that of Oklahoma is simply

wrong. Soon after Oklahoma became a state Tulsa changed its status from an Indian Territory town

to an Oklahoma municipality. As recognized by Oklahoma in McGirt, such "municipalities are

creatures of state law.” Brief of Appellee, McGirt v. Oklahoma, Case No. 18-952, at 28-29 (March

13, 2020). The Oklahoma Constitution, approved on September 17, 1907, art. 18, § 1, prohibited the

creation of municipal corporations "by special laws,” and authorized the state legislature, "by

general laws,” to provide for the incorporation and organization of cities and towns. It authorized

a municipal corporation "now existing” in Oklahoma to continue "with all of its present rights and

powers until otherwise provided by law.” Id., art. 18, § 2. The Constitution further provided that

upon final approval of a municipal charter, "it shall become the organic law of such city and

supersede any existing charter and all amendments thereof and all ordinances inconsistent with it.”

Id., art. 18, § 3(a). On December 27, 1907, Oklahoma's first Governor declared Tulsa to have "all the powers,

duties, and privileges of a city of the first class under the laws of the state of Oklahoma.” See

Proclamation by C.N. Haskell, Governor of Oklahoma. Seven weeks later, the Oklahoma

Legislature enacted a statute amending former Oklahoma territorial law, and declaring cities and

towns in the former Indian Territory to be "cities of the first class under the laws of this State.”

See Ok. Sess. Laws, ch. 12, art. I, § 1 [S.B. No. 114] (Feb. 20, 1908) at 183-84 (emphasis added).





This statute further provided that the officers of said cities were to continue in office until the next

general election for city officers, and made municipal authority uniform throughout Oklahoma by

requiring that city officers "shall exercise the duties of the respective offices under the laws of this

State corresponding to the offices to which they were elected or appointed.” Id. (emphasis added).





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The Oklahoma Legislature enacted a law soon after that, authorizing any city with a

population of more than 2,000 inhabitants to adopt a charter for "its own government,” and

providing that, upon ratification by votes and approval by the Governor, the charter would

"become the organic law of such city and supersede any existing charter and all amendments

thereof and all ordinances inconsistent with it.” See Ok. Sess. Laws, ch. 12, art. IV, § 1 [S.B. No.

149] (May 22, 1908) at 190-91. Consistent with this law, Tulsa abandoned its provisional

government incorporated under Arkansas law and adopted its charter under provisions of the

Oklahoma Constitution, article 18. See Excerpts of Charter of the City of Tulsa, State of Oklahoma,

adopted July 3, 1908, approved by Gov. C.N Haskell January 5, 1909 (Charter). The Charter

specifically provided that duties of the municipal judge and city attorney under the new Oklahoma

Charter would be performed by the present "police judge” and present "city attorney” only until a

Board of Commissioners was elected. See Charter at 6; see also State ex rel. West v. Ledbetter,

1908 OK 196, 97 P. 834 (addressing §10 of Schedule to Oklahoma Constitution permitting officers

of former Indian Territory municipalities to perform duties until their successors were elected). The brief period in which Tulsa was organized as an Indian Territory town was over, and Tulsa has been operating as a sub-division of Oklahoma ever since. Tulsa has no claim to any authority under its pre-statehood incorporation decree, whether adopted under authority of the 1895 federal court order or section 14 of the Curtis Act.



D. Tulsa is a Political Subdivision of Oklahoma With No Power Independent of State Power.



Tulsa is a political subdivision of Oklahoma. Fine Airport Parking, Inc. v. City of Tulsa,

71 P.3d 5, 11 (Okla. 2003) (noting Oklahoma is the "sovereign and [Tulsa] is a political

subdivision”). Tulsa's municipal powers are limited by Oklahoma's Constitution and Oklahoma

laws that bind it by the charter it adopted pursuant to Okla. Const., art. 18, §3. Tulsa's powers are



Page 14 of 20



also limited by the United States Constitution and federal law. City of Tulsa Charter, art. 1, §§1-

2. See Hunter v. City of Pittsburgh, 207 U.S. 161, 177 (1907) (affirming the "well settled” doctrine

that municipal corporations are political subdivisions of states and can exercise only such powers

as states permit). Tulsa's jurisdiction in Indian country is only as extensive as Oklahoma's jurisdiction. Thus,

when McGirt confirmed that Oklahoma has no criminal jurisdiction for offenses committed by or

against Indians within the boundaries of the intact Muscogee Reservation, Tulsa's jurisdiction was

similarly limited. Indeed, Tulsa acknowledged this would be the result in its McGirt amicus brief

filed in favor of Oklahoma. McGirt Tulsa Amicus at 29. Tulsa conceded Oklahoma and Tulsa

would have no jurisdiction over on-reservation crimes committed by or against Indians, and

warned that if "the entire City is 'Indian country,' state criminal jurisdiction would be stripped in

any crime involving an Indian perpetrator or victim.” Id. at 29. This would mean, according to

Tulsa, that Tulsa's courts "could not enforce Oklahoma law in crimes involving Indians.” Id. at



29. Although Tulsa's tune has now changed, nowhere does it acknowledge that its renegade theory

regarding §14 of the Curtis Act would upend the jurisdictional arrangement regarding other forms

of Indian country under 18 U.S.C. §1151(c): That is not to say that there has never been any 'Indian country' in Tulsa—there are several restricted allotments and trust lands that remain Indian country under Section 1151(c), and

even a casino located on land 'still owned by the Creek Nation.'



Id. at 28. Tulsa gives no thought to how its new theory would upend settled tribal and federal

prosecutions for crimes that occurred on tribal trust land or on restricted allotments. In McGirt,

Oklahoma was faulted for ignoring such potential counter disruption; Tulsa should not be

permitted to do the same here. McGirt, 140 S. Ct. at 2470-71.





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Tulsa's new-found argument also ignores established authority concerning criminal

jurisdiction in Indian country. It is well-recognized in Oklahoma that "[s]tates have no [criminal]

authority over Indians in Indian Country unless it is expressly conferred by Congress.” Cheyenne-

Arapaho Tribes of Okla. v. Oklahoma, 618 F.2d 665, 668 (10th Cir. 1980) (finding Oklahoma

hunting and fishing laws inapplicable in Indian country); see also Hackford v. Utah, 845 F.3d 1325

(10th Cir 2020) (quoting Cheyenne-Arapaho Tribes in relation to jurisdictional challenge to state

authority over a traffic offense); Ross v. Neff, 905 F.2d 1349, 1352 (10th Cir. 1990) (involving

illegal arrest on Cherokee trust land and stating that "Indian country is subject to exclusive federal

or tribal criminal jurisdiction '[e]xcept as otherwise expressly provided by law.' 18 U.S.C. Sec.

1152.”); United States v. Burnett, 777 F.2d 593, 596 (10th Cir.1985) ("Oklahoma has not acted to

assume [criminal] jurisdiction under P.L. 280.”). These general principles apply equally to the

criminal jurisdiction and law enforcement authority of municipalities. Criminal jurisdiction in

Indian country nationwide is uniformly defined by federal statutes that do not differentiate between

municipal and state jurisdiction.



E. Tulsa Has Erroneously Claimed that it Can Usurp Federal and Tribal Criminal Jurisdiction

Over On-Reservation Crimes By or Against Indians Simply by Expanding Its Jurisdictional

Boundaries.



Tulsa makes the bold assertion that not only did its incorporation as an Indian Territory

town in 1898 give it criminal jurisdiction over on-reservation crimes "without regard to race” in

the small Creek town site of the time, but that its "jurisdiction” grew as Tulsa grew, eventually

encompassing parts of the Cherokee Reservation. Yet, this argument creates an absurdity. Criminal

jurisdiction in Indian country is not so fluid as to depend on the vagaries of approvals by the

majority of municipal citizens seeking or objecting to annexation under state laws governing



Page 16 of 20



annexation. Congress has never passed a law conferring jurisdiction on Oklahoma, McGirt, 140

S. Ct. at 2478. The history of Tulsa's establishment and expansion demonstrates the absurdity of Tulsa's

argument. When the St. Louis and San Francisco Railway Company extended its railroad line

from Vinita to Tulsa in 1882, Tulsa's population was 200, but growing. Tulsa soon became

occupied primarily by non-citizens with no claim to Creek land. Johnson v. Riddle, 240 U.S 467,

476-77 (1916). The non-Indian "intruders” settled in and around the railroad lines and built

improvements on Creek tribal land they did not and could not own. "[S]peculators were purchasing

town lots in order to establish a claim that might be validated in case of allotment.” DEBO, ROAD

341, 364. The Dawes Commission's official survey and Tulsa town site plat, completed and approved

in 1902 for purposes of reserving the Tulsa town site from Creek allotment, limited Tulsa to 654.56

acres (only 14 acres more than the 640 acres contained in one square mile).21 Although Tulsa had

attempted earlier to incorporate a larger area of approximately 1440 acres, only the smaller Creek

tribal acreage, identified in the official government survey and townsite plat, was reserved from

allotment for Tulsa. See Tulsa Code of Ordinances, Appendix C. Congress intended for townsite

boundaries approved by the Secretary of the Interior to control the municipal boundaries of

incorporated Indian Territory towns. Inc. Town of Hartshorne, 104 P. at 51. Tulsa, when it later

chartered under Oklahoma law in 1908, apparently included a small area of the Cherokee Nation



21 See Government Survey of Tulsa, Indian Territory by J. Gus Patton, C.E., approved by Department of Interior April 11, 1902; See Original Townsite Plat, Tulsa, Creek Nation, Indian

Territory, filed June 13, 1902 (Orig.Plat); See City of Tulsa, Annexation History of Tulsa, Figures at

4, 8, 14,17 (Annexation History).



Page 17 of 20



Reservation within its municipal boundaries. It is unclear how this portion of the Cherokee Nation

was acquired and whether the Cherokee Nation consented to its acquisition or inclusion.22 After allotment and the sale of Tulsa townsite lots, the city was firmly in the hands of non-citizens, but remained surrounded by Creek allotments. See Hastain's. Tulsa has grown beyond its original Indian Territory boundaries since statehood, primarily through the process of state-approved annexation. Tulsa presently encompasses over 200,000 acres (more than 300 times its

original 654.56-acre area), and its municipal limits extend well beyond its Creek townsite

beginnings and into a portion of the Cherokee Reservation. See Annexation History at 4, 17.

Tulsa's claim that Congress intended that Arkansas laws would continue to apply "without regard

to race” after statehood to an undefined and ever-expanding municipal area defies logic, and

reflects a fundamental misunderstanding of how federal, state, and tribal laws apply in the exercise

of jurisdiction over Indian country.





IV. TULSA'S ATTEMPT TO EXERCISE JURISDICTION OVER CRIMES BY OR

AGAINST INDIANS IN INDIAN COUNTRY IS UNWORKABLE.



A. The Adoption of Tulsa's New-Found Theory Would Produce Unintended and

Disconsonant Results. Tulsa advocates a municipal jurisdiction that would create odd and unworkable results.





Consider where Tulsa's approach would lead: 1) Tulsa, but not cities in former Oklahoma

Territory, would have jurisdiction over Indian crimes committed within municipal limits that are

also within reservation boundaries; 2) Only towns such as Tulsa – not Indian Territory towns that

did not incorporate under Arkansas law prior to statehood – would have criminal jurisdiction over



22 A 1903 map of Tulsa shows Tulsa's boundaries extending slightly into the Cherokee Nation to

encompass a strip of land just under 10 acres, called "North Tulsa” addition. See Survey, North

Tulsa, Indian Territory, Cherokee Nation, March 6, 1903; City of Tulsa, Indian Territory Ordinance

No. 84; and Charter at art. II §1.



Page 18 of 20





Indian crimes committed within intact reservations;23 3) Because the Curtis Act applied only to

the Five Tribes, only pre-statehood incorporated cities within Five Tribes Reservations would have

jurisdiction to prosecute Indian crime within their municipal boundaries; 4) Tulsa's uber-sovereign

status, and presumably that of similarly situated Indian Territory towns, would extend beyond the

original land area reserved from allotment to include past and future annexations; and 5) Tulsa

would have jurisdiction over Indian crime occurring on restricted allotments or tribal lands within

the city limits within intact reservations even though Tulsa previously conceded it had no

jurisdiction there. See McGirt Tulsa Amicus at 28. This piece-meal approach produces absurd

results and is not defensible B. The Only Available "Appeal” from Tulsa Municipal Convictions is to a State Court. Tulsa is a municipal court of record with limited jurisdiction. It is a "court of record” based

upon population. Okla. Stat., tit. 11, § 28-101. This state-law designation is significant. First,

Tulsa's misdemeanor convictions can be used as predicates to support felony prosecutions in state

district court. 1984 OK AG 142 (finding a municipal court of record conviction for Driving While

Under the Influence of Intoxicants (DWI) can serve as a predicate for felony DWI in district court).

Second, Tulsa's regular appeals and original actions are prosecuted in the OCCA. See Okla. Stat.,

tit. 11, § 28-128; OCCA, Rule 1.2. Yet, under McGirt, Oklahoma courts have no jurisdiction over

on-reservation crimes by or against Indians. And, there is no federal "forum” for these Curtis Act

appeals. Shaffer. In fact, requiring present-day federal courts to replace the OCCA in such appeals



23 The anomaly Tulsa's theory would produce is illustrated by the fact that while some Indian

Territory towns near Tulsa (Broken Arrow, Sapulpa, Coweta) incorporated under Arkansas laws

prior to statehood, other nearby towns (Sand Springs, Bristow, Red Fork, Glenpool, Mounds, Inola,

and Jenks) did not. See The Encyclopedia of Oklahoma History and Culture, https://www.okhistory.org/publications/enc/entry/.php?entry (available articles indexed by town

names).



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increases lack of uniformity for Tulsa residents – subverting the underlying purpose Tulsa

promotes from the Curtis Act's §14 "regardless of race” provision. Federal courts are not authorized to handle municipal appeals. It is true that prior to statehood, appeals from "mayors courts” of incorporated Indian Territory towns went to the federal courts of Indian Territory. See Missouri, K & T. Ry. Co. v. Phelps, 76 S.W. at 286, discussed more fully in part II(B.)24 Those courts, like the municipal Indian Territory governments themselves, no

longer exist. See Ledbetter, 97 P. at 835 ("Upon admission of the state to the union, the form of

government [for an incorporated Indian Territory town] . . . ceased to exist [and] . . . the laws in

force . . . became inoperable”). The current federal court for the Northern District of Oklahoma is

not designated by Congress to provide a forum for appeals of municipal convictions arising from

former Indian Territory towns that temporarily incorporated under Arkansas law prior to statehood.

Congress's actions prior to statehood were intended "to be merely provisional” and provide a body

of local laws "for the time being.” Shulthis v. McDougal, 225 U.S. 561, 571 (1912). That time has

long passed and Tulsa cannot continue to claim Indian country jurisdiction on the basis of

provisional congressional relics.



24 Mayors' courts had jurisdiction co-extensive with United States Commissioner courts, and appeals

of judgments from such provisional courts were taken to the United States Court in Indian Territory.

Barker v. Marcum & Toomer, 1908 OK 171, 97 P. 572 (Okla. 1908).





Constitution. It derives all its power and authority from Oklahoma. It is not a separate sovereign

with jurisdiction that extends beyond Oklahoma's.



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As recognized in McGirt, pre-statehood federal statutes concerning jurisdiction in Indian Territory such as the Curtis Act were only temporary measures with no impact on jurisdiction involving on-reservation criminal offenses. Oklahoma municipal governments have no right independent of Oklahoma to exercise criminal jurisdiction for on-reservation crimes committed

by or against Indians. Since 1908 Tulsa has operated under Oklahoma law and the Oklahoma Constitution. It derives all its power and authority from Oklahoma. It is not a separate sovereign with jurisdiction that extends beyond Oklahoma’s.