CITY OF TULSA, Appellant v. NICHOLAS RYAN O'BRIEN, Appellee

¶1 Appellee, Nicholas Ryan O'Brien, was charged by Information in the Municipal Criminal Court of the City of Tulsa with the following misdemeanor traffic crimes:



Case No. 720766, Driving Under the Influence of Alcohol, in violation of City of Tulsa Revised Ordinances Title 37, § 649;



Case No. 720766A, Transporting an Open Container, in violation of City of Tulsa Revised Ordinances Title 37, § 657;



Case No. 720766B, Operating a Motor Vehicle With an Expired Tag, in violation of City of Tulsa Revised Ordinances Title 37, § 409;



Case No. 720766C, Driving Left of Center, in violation of City of Tulsa Revised Ordinances Title 37, § 637; and



Case No. 720766D, Improper Use of Left Lane, in violation of City of Tulsa Revised Ordinances Title 37, § 640.



¶2 The Information alleged these offenses occurred on August 30, 2021, while O'Brien was driving a motor vehicle on a multi-lane public street, at or near 1300 South Denver Avenue, in the city of Tulsa. This traffic stop was conducted by the Tulsa Police Department.



¶3 On October 6, 2022, O'Brien through counsel filed a motion to dismiss alleging that the City lacked jurisdiction over his case pursuant to McGirt v. Oklahoma, 591 U.S. 894 (2020) because he was an enrolled citizen of the federally recognized Osage Nation tribe and the alleged crimes occurred within the boundaries of the Muscogee (Creek) Nation. In McGirt, the Supreme Court held that the Creek Reservation in eastern Oklahoma was never disestablished by Congress and, thus, constitutes Indian Country for purposes of federal criminal jurisdiction. Id. at 913, 932. The Honorable Mitchell M. McCune, Municipal Judge, denied the motion on January 13, 2023, finding the City had jurisdiction over the case. In his written order, Judge McCune cited a federal district court decision agreeing with Tulsa that Congress granted the city jurisdiction over municipal violations by all its inhabitants, including Indians, through Section 14 of the Curtis Act, 30 Stat. 495 (1898). See Hooper v. City of Tulsa, 2022 WL 1105674 (N.D. Okla. Apr. 13, 2022).



¶4 On June 28, 2023, O'Brien's counsel filed a second motion to dismiss for lack of jurisdiction, this time based on the Tenth Circuit's reversal in Hooper. In that decision, the Tenth Circuit held that Section 14 of the Curtis Act no longer grants Tulsa jurisdiction over municipal violations committed by Indians. Hooper v. City of Tulsa, 71 F.4th 1270, 1288 (10th Cir. 2023). Tulsa filed a responsive pleading opposing O'Brien's motion to dismiss. Tulsa maintained its previous arguments based on the Curtis Act. In the alternative, the City argued that the State of Oklahoma retained concurrent jurisdiction with the Tribes over criminal offenses committed by Indians on the reservation, and thus Tulsa also had concurrent jurisdiction over Indian offenses as delegated by the State.



¶5 Tulsa cited Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022) to support its claim that there is no federal statute granting exclusive jurisdiction to the Tribes or federal government over non-major crimes committed by Indians in Indian country. Tulsa invoked the balancing test from White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43 and argued that the balance of tribal interests, federal interests and state interests does not bar the State, and therefore the City, from prosecuting O'Brien's crimes in its courts. Tulsa specifically argued that the exercise of concurrent State-delegated jurisdiction in O'Brien's case does not unlawfully infringe on tribal self-government. See Castro-Huerta, 597 U.S. at 649-51.



* * *



On August 17, 2023, Judge McCune granted O'Brien's motion to dismiss in a written order. Judge McCune found that the Tenth Circuit's decision in Hooper undermined the City's arguments based on the Curtis Act and that it "must follow the law that is in place at this time." Judge McCune also rejected Tulsa's alternative argument based on Castro-Huerta as follows:



The City of Tulsa asserts that Oklahoma v. Castro-Huerta . . . confers concurrent jurisdiction to the City for violations of ordinances in the City of Tulsa. However, the Castro-Huerta ruling is specifically limited to concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country. No mention is made as to concurrent jurisdiction when the defendant is Indian. Nor, does there appear to be any discussion in Castro-Huerta that the General Crimes Act, 18 U.S.C. § 1152 (1948), confers concurrent jurisdiction over defendants who are Indian.



* * *



¶12 In its first proposition, Tulsa contends that Judge McCune erred in dismissing O'Brien's case for subject matter jurisdiction. Tulsa cites our recent decision in Deo v. Parish, 2023 OK CR 20, 541 P.3d 833, in which we held that Indian country jurisdictional claims do not implicate Oklahoma district courts' subject matter jurisdiction, but rather personal and territorial jurisdiction. Deo, 2023 OK CR 20, ¶ 15, 541 P.3d at 838. Tulsa is not entitled to relief for this claim. Tulsa admits that Deo is distinguishable from the present case because, in pertinent part, Appellee filed his formal challenge based on McGirt to the trial court's jurisdiction in a timely manner, before the first actual hearing in the case. There is thus no waiver by O'Brien of his Indian country jurisdictional claim, and no basis for relief under Deo, despite the lower court's reference to subject matter jurisdiction. See Deo, 2023 OK CR 20, ¶ 15, 541 P.3d at 838. Proposition I is denied.



¶13 In its second proposition, Tulsa argues that it has criminal jurisdiction in this case derived from the State's jurisdiction and, thus, Tulsa has concurrent jurisdiction with the Tribe over municipal offenses committed by Indians within the Tulsa city limits. Under the Constitution, States have the authority to prosecute crimes committed within their territory "except when preempted (in a manner consistent with the Constitution) by federal law or by principles of tribal self-government." Oklahoma v. Castro-Huerta, 597 U.S. 629, 652-53 (2022). For the reasons discussed below, we find that the City of Tulsa's criminal jurisdiction to prosecute O'Brien for DUI, and the other related traffic offenses in this case, was not preempted under federal law or by principles of tribal self-government.

¶38 Appellee's motion to dismiss this appeal for lack of jurisdiction is DENIED. The Order of the Municipal Criminal Court of the City of Tulsa dismissing this case is REVERSED AND REMANDED for reinstatement of the case and further proceedings not inconsistent with this Opinion. Appellee's motion to strike the City of Tulsa's reply brief is DENIED. The Muscogee (Creek) Nation's request for Oral Argument is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2024), the MANDATE is ORDERED issued upon delivery and filing of this decision.



AN APPEAL FROM THE MUNICIPAL CRIMINAL COURT

OF THE CITY OF TULSA

THE HONORABLE MITCHELL M. MCCUNE, MUNICIPAL JUDGE