MUNICIPAL COUF!

T
IN THE MUNICIPAL COURT IN AND FOR THE CITY OF
I L E
THE CITY OF TIJLSA,
THE STATE OF OKLAHOMA

) DEC3 2 2021
D
)
Plaintiff; )
)
By \.f\lS== Dep.
V. ) Case No. 7569655
)
MARVIN KEITH STITT, )
)
Defendant. )

DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO DISMISS

COMES NOW the Defendant, Marvin Keith Stitt, by and through his counselors of record, Brett

Chapman and Sabah Khalaf, and submits his brief in support ofhis Motion to Dismiss pursuant to McGirt

v. Oklahoma, 591 U.S. _ (2020). In support thereof, the Defendant proffers that municipalities in

Oklahoma that were provisionally incorporated under Arkansas law prior to 1907 such as the City of

Tulsa do not have jurisdiction over offenses committed by or against Native Americans within the

boundaries of the Muscogee Creek Nation.

BACKGROUND

In McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the United States Supreme Court held that the

Muscogee Nation's reservation of territory remains intact and comprises so-called "Indian Country"

under 18 U.S.C. §1151(a). Accordingly, the Court held that the State of Oklahoma has no criminal

jurisdiction over alleged offenses committed by Native Americans within the boundaries of the

Muscogee Nation. The clear intention of the Court was to make the McGirt ruling binding on Oklahoma

municipalities, including the City of Tulsa, as political subdivisions of the State of Oklahoma organized

and chartered under state law and located within the Muscogee Nation.

The State of Oklahoma and its municipalities may lawfully exercise criminal jurisdiction only

over non-Native American perpetrators of offenses against non-Native Americans in the Muscogee

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Nation. McGirt, 140 S. Ct. at 2479, citing U.S. v. McBratney, 104 U.S. 621, 624 (1882). Although this

authority and power is significant, McGirt, 140 S. Ct. at 2460, the City of Tulsa has no jurisdiction over

offenses by or against Native Americans within the Muscogee Nation. Consequently, dependent upon

the identity of the offender or the victim in each individual case, criminal jurisdiction for such offenses

would reside with the U.S. government under the Major Crimes Act, 18 U.S.C. § 1153, or the General

Crimes Act, 18 U.S.C. § 1152, or with the Muscogee Nation pursuant to its inherent sovereignty.

Despite all this, the City of Tulsa persists in prosecuting Native Americans for alleged violations

that take place within the boundaries of the Muscogee Nation. The City attempts to justify this course of

action by claiming its jurisdiction to prosecute municipal violations by or against Native Americans arises

from its pre-statehood incorporation as a municipality governed by Arkansas law. In their quest to

contravene McGirt, the City of Tulsa seeks to elevate a clause in a 123-year-old law known as the Curtis

Act into an extraordinary grant of sovereignty by Congress that effectively supersedes that of the State

of Oklahoma, the United States government, and the Muscogee Nation. See, Section 14 of the Act of

June 28, 1898, ch. 517, 30 Stat. 495. This claim constitutes a fundamental misunderstanding and

misapplication of the law.

1. THE CITY OF TULSA’S PROSECUTION OF NATIVE AMERICANS FOR

MUNICIPAL VIOLATIONS IN THE MUSCOGEE NATION IS CONTRARY TO
MCGIRT

The City of Tulsa now asserts criminal jurisdiction for municipal violations within the Muscogee

Nation over all persons “without regard to race,” including Native Americans, even though the State of

Oklahoma has no such jurisdiction pursuant to McGirt. Today, the City claims that it somehow derives

criminal jurisdiction over violations within the Muscogee Nation from a temporary provision in Section

14 of the Curtis Act, a territorial congressional act meant to force the Muscogee Nation to allot its

territory. Section 14, 30 Stat. 495. This position is wholly different from the position that the City of Tulsa

urged as amicus in McGirt. The City now claims that Section 14 of the Curtis Act provided that “all
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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.

The City’s reliance on Section 14 of the Curtis Act is faulty and merely repeats a failed argument

in McGirt that the Curtis Act and other territorial U.S. statutes granted jurisdiction to the State of

Oklahoma over crimes committed by Native Americans within the Muscogee Nation. These laws

included Section 28 of the Curtis Act1 and Chapter 3 of the Act of June 7, 1897.2 McGirt, 140 S. Ct. at

2476. The City’s reliance on these statutes is contrary to the Court’s holding in McGirt, which rejected a

similar argument proffered by the State of Oklahoma noting that the statutes were only “statutory

artifacts” from Oklahoma’s “territorial history.” Id.

2. THE CURTIS ACT WAS TEMPORARY AND DOES NOT AUTHORIZE THE CITY
OF TULSA TO EXERCISE JURISDICTION OVER NATIVE AMERICANS FOR
MUNICIPAL VIOLATIONS WITHIN THE MUSCOGEE NATION

2.1. Municipal criminal jurisdiction in the 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. The Act of 1890

established the Oklahoma Territory and set forth a territorial government based on the State of Nebraska’s

laws. Id., § 1-28. The Act of 1890 left the Indian Territory intact, subject to the jurisdiction of the U.S.

and Indigenous governments but authorized the laws of the State of Arkansas to be applied there because

the 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-Indigenous individuals began occupying Tulsa along newly established

transportation routes. These inhabitants had neither title to the land upon which they constructed

1Concerning the abolishment of Muscogee national courts.

2Granting U.S. courts in Indian Territory “exclusive jurisdiction” to try “all criminal causes for the punishment of
any offense irrespective of race.” 30 Stat. 62, 83.

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improvements nor local self-government. The Curtis Act was “enacted to afford immediate local

municipal governments” in the 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 now touted by the City as its

congressional grant of jurisdiction in the Muscogee Nation – reserved towns with populations of greater

than 200 inhabitants from the inevitable allotment process. See, Section 14, 30 Stat. 495. Section 14

further authorized towns within the Indian Territory of populations of greater than 200 to incorporate

through a newly established petition and election process. Such townsites were clearly established by

authority of the U.S. government. These townsites, as authorized by Section 14, were organized under

Arkansas law, and possessed only the “powers” of similar Arkansas municipalities.

The City’s idea that Section 14 grants jurisdiction over offenses committed by or against Native

Americans within the Muscogee Nation ignores Section 14’s complexities. 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.” See, Section 14, 30 Stat. 495. It authorized the courts of the U.S.

government serving the Indian Territory to exercise “jurisdiction to enforce the same, and to punish any

violation thereof,” and required 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. Section 14 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 Act of 18903 and

included “all the powers of commissioners of circuit courts of the United States” authority to serve as ex

3 Section 39, 26 Stat. at 98-99.

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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 the limitation that they would have no

jurisdiction to try any matter where the value or amount in controversy exceeded $100. This is merely

one of the many limitations the City of Tulsa chooses to disregard. 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 Act of 1890 and the Curtis Act at Section 14, 30 Stat. 495, 499.

This particular implementation of Arkansas law was required for the purpose of mayoral prosecutorial

and 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).4

The portions of Section 14 concerning municipal jurisdiction were clearly meant to provide

interim remedies that did not survive the admission of Oklahoma as a new state. The City of Tulsa no

longer relies on mayoral prosecutorial and judicial authority to enforce its municipal code consistent, but

rather municipal judges. This is consistent with the State of Oklahoma’s Constitution and laws, not the

laws of the State of Arkansas as previously required by Section 14.

2.2. The Muscogee allotment agreement does not confirm the City of Tulsa’s
interpretation of Section 14 of the Curtis Act.

The City relies on a specific provision in the Muscogee Creek Allotment Act of 1901 which

provides that “[n]o Act of Congress or treaty provision inconsistent with this agreement shall be in force

in said nation, except Section 14 of [the Curtis Act], which shall continue in force as if this agreement

had not been made.” Creek Agreement, 31 Stat. 861, 872. The Muscogee Creek Agreement reserved

town sites from allotment if set apart under the 1898 Curtis Act. It contained detailed provisions

4 In re English ultimately found that a city ordinance was invalid under Arkansas law.

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concerning certain surveys, appraisals, establishment, and disposition of town sites and further required

compensation to occupants who had made improvements on the lands. Section 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)). The City of Tulsa ignores this contextual

basis for keeping Section 14 of the Curtis Act in force while the dispositions of Muscogee town site

allotments were being completed.

Both Sections 14 and 15 of the Curtis Act were aimed at rewarding and protecting non-Native

American residents of these communities who had built improvements without authorization. Sections

14-15, 30 Stat. 495,499-501. Section 15 protected these sites from allotment and afforded occupants,

both Indigenous and otherwise, the opportunity to purchase lots upon which they had made

improvements. Likewise, Section 14 fit into a similar framework and granted occupants an opportunity

to begin organizing towns and recognizing municipal authority governed by U.S. and Arkansas law until

a new state was formed. The Muscogee Creek Agreement addressed requirements for these 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, Section 11–22, 31 Stat. 861, 864-867). The

references in the Muscogee Creek Agreement to the continuation of Section 14 neither states nor establish

any congressional intention to grant municipalities jurisdiction within the Muscogee Nation greater than

the State of Oklahoma’s jurisdiction.

2.3. The grant of power to towns within the Indian Territory under the Curtis
Act was temporary according to the 1906 Oklahoma Enabling Act.

When the Oklahoma Territory was created in 1890 from the western portion of the Indian

Territory, its territorial laws were based on the State of Nebraska laws, whereas the courts in the Indian

Territory continued to implement certain laws of the State of Arkansas specified by Congress. Section

11, 2-35, 38-39, 41, 26 Stat. 81. The Oklahoma Enabling Act of 1906 modified this by mandating that

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“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. This enabled territorial courts to apply Oklahoma Territory’s criminal laws to crimes subject to state

jurisdiction, such as crimes by non-Native Americans against non- Native Americans within Indigenous

nations until such time as the State of Oklahoma adopted its own criminal laws. See, McBratney, 104

U.S. at 624. The Enabling Act of 1906 neither continued the applicability of Nebraska or Arkansas state

laws, nor did it ever mention those laws.

Additionally, the Enabling Act also provided that officers of the state government formed under

a new constitution would exercise all the functions of state officers and further provided that “all laws in

force 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 also provided that the laws of the U.S. government would “have the same force and effect

within said State as elsewhere within the United States.” Id. These laws included the General Crimes Act

under 18 U.S.C. § 1152 and the Major Crimes Act under 18 U.S.C. § 1153, as recognized in McGirt, 140

S. Ct. at 2470.

The Enabling Act established that the newly admitted State of Oklahoma 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). In keeping with this tenet of uniformity, the State of Oklahoma’s

Constitution set forth 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. Immediately after Oklahoma’s admission in the Union, the Oklahoma Legislature established

that cities and towns in the State of Oklahoma – including those in the former Indian Territory – would

operate under the State of Oklahoma’s laws.

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 3. THE CITY OF TULSA DOES NOT HAVE ANY GREATER JURISDICTION WITHIN
THE MUSCOGEE NATION THAN THE STATE OF OKLAHOMA

3.1. The community of Tulsa was founded as an Indigenous town in the

Muscogee Nation.

The historical government of the Muscogee Nation was comprised of a confederation of

Muscogee towns and communities, all Indigenous in origin. In the first half of the 19th century,

Muscogee citizens were forcibly removed from their ancestral territory, now claimed by the State of

Alabama, to a reservation of territory in the Indian Territory pursuant to a treaty between the Muscogee

Nation and the United States. Harjo v. Kleppe, 420 F. Supp. 1110, 1118 (D.D.C. 1976). The first

Muscogee citizens to arrive near present-day Tulsa in 1836 were the Locvpoka, who established their

town on the eastern bank of the Arkansas River.5 By 1857, the town’s population had diminished to 247

inhabitants. During the American Civil War, the residents of the town were nearly wiped out; however,

in the aftermath of the war, surviving citizens set to work rebuilding the town.

3.2. The City of Tulsa’s incorporation under Arkansas law prior to the Curtis Act
of 1898 and its implementation of Arkansas laws enabled non-Indigenous
occupants to temporarily perform municipal functions pending allotment of
the Muscogee Nation and admission of Oklahoma as a new state.

In late 1895, a federal judge sitting in the Indian Territory ruled that territorial towns could

organize municipal governments under Arkansas law.6 In 1897, Tulsa formed a temporary government

through a petition process and on December 16, 1897, greater than twenty (20) “qualified voters” filed a

petition to incorporate under Arkansas law. See, Petition to Incorporate Tulsa, Indian Territory. The U.S.

government’s court in the Indian Territory approved the petition one month later, a few months before

the Curtis Act was passed. See, Court Proceedings of Northern District, Indian Territory. At the time of

incorporation, Tulsa covered only a few blocks and sustained a population of 1,500 occupants in 1898.

5 Cobb, Russell, “The Great Oklahoma Swindle: Race, Religion, And Lies in America’s Weirdest State,”
(2020) at 48.
6 Debo, Angie, “The Road to Disappearance” (1941) at 341 and 364.

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 Tulsa operated its new government for only a brief period under Arkansas law during the

provisional period before the admission of the State of Oklahoma into the U.S. 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 mundane ordinances, most of which addressed the needs of a newly formed town

government by providing for elections, taxations, licensing, and the like. Many others dealt with

infrastructure and essential services, including distribution of electricity and natural gas, construction of

streets, trash collection, fire protection, waterworks, and so on. Tulsa passed a few criminal ordinances

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

before the admission of the State of Oklahoma. See generally, Ordinance No. 25.20. Regardless, Tulsa

no longer prosecutes any offenses under Arkansas statutes, but under ordinances it passed by authority

of the State of Oklahoma.

3.3. The City of Tulsa was established under the laws of the State of Oklahoma
immediately after its admission as a state.

The City of Tulsa’s claim that its current jurisdiction is unassociated with that of the State of

Oklahoma is false. Right after the admission of the State of Oklahoma, Tulsa changed its status from an

Indian Territory town to a municipality of the State of Oklahoma. As recognized by the State in McGirt,

such “municipalities are creatures of state law.” See, Brief of Appellee, McGirt v. Oklahoma, Case No.

18-952, at 28-29 (March 13, 2020).

The Constitution of the State of Oklahoma was approved on September 17, 1907 and prohibited

the creation of municipal corporations “by special laws” under Article 18, Section 1 and authorized the

Oklahoma 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. It further provided that upon

final approval of a municipal charter, “it shall become the organic law of such city and supersede any

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existing charter and all amendments thereof and all ordinances inconsistent with it.” Id., art. 18, § 3(a).

On December 27, 1907, the State of 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 legislature enacted a law

amending the former 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.” Ok. Sess. Laws, ch. 12, art. I, § 1 [S.B. No. 114]

(Feb. 20, 1908) at 183-84. 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

the State of Oklahoma by requiring that officials “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.

Soon after that, the legislature enacted a law authorizing any city with a population of 2,000 or

greater 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.” 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 Article 18 of the State of Oklahoma’s Constitution. 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. This

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 and State ex rel. West v. Ledbetter, 1908

OK 196, 97 P. 834 which addressed Section 10 of Schedule to Oklahoma Constitution permitting officers

of former Indian Territory municipalities to perform duties until their successors were elected.

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 This concluded the brief period in which Tulsa was organized as an Indian Territory town. The

City of Tulsa has been operating as a subdivision of Oklahoma ever since. The City 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.

3.4. The City of Tulsa is a political subdivision of the State of Oklahoma with no
power independent to that of the State.

The City of Tulsa is a political subdivision of the State of Oklahoma. Fine Airport Parking, Inc.

v. City of Tulsa, 71 P.3d 5, 11 (Okla. 2003) (noting the State of Oklahoma is the “sovereign and [Tulsa]

is a political subdivision”). The City’s municipal powers are limited by the State of Oklahoma’s

Constitution and laws that bind it by the charter it adopted pursuant to Article 18, Section 3. The City’s

powers are also limited by the U.S. 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).

The City’s jurisdiction within the Muscogee Nation is only as extensive as the State of

Oklahoma’s jurisdiction. When McGirt confirmed the State has no criminal jurisdiction for offenses

committed by or against Native Americans within the boundaries of the Muscogee Nation, the City of

Tulsa’s jurisdiction was also limited. Indeed, the City acknowledged this would be the result in its McGirt

amicus brief filed in favor of the State of Oklahoma. See, McGirt Tulsa Amicus at 29. The City conceded

that it and the State of Oklahoma would have no jurisdiction over crimes committed by or against Native

Americans within the Muscogee Nation, 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 the City, that its courts could not enforce Oklahoma law in crimes

involving Native Americans. Id. at 29. Although the City’s argument has now changed, nowhere does it

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acknowledge that its theory regarding Section 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.

The City 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.

Tulsa’s newly contrived argument also ignores established authority concerning criminal

jurisdiction in Indian Country. It is well-recognized 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.”); U.S. v. Burnett, 777 F.2d 593, 596 (10th

Cir.1985) (“Oklahoma has not acted to assume [criminal] jurisdiction under P.L. 280.”).

These principles apply equally to the criminal jurisdiction and law enforcement authority of

municipalities because criminal jurisdiction in Indian Country nationwide is uniformly defined by federal

statutes that do not differentiate between municipal and state jurisdiction.

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 3.5. The City of Tulsa has wrongly claimed it can usurp federal and Indigenous
criminal jurisdiction over crimes by or against Native Americans simply by
expanding its jurisdictional boundaries.

The City of 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 Nation. 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 annexation. Congress has never

passed a law conferring jurisdiction on the State of Oklahoma, McGirt, 140 S. Ct. at 2478.

The history of Tulsa’s establishment and expansion demonstrates the absurdity of the City’s

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

to Tulsa in 1882, Tulsa supported a population of 200. 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 Muscogee 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.”7

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

which is only fourteen acres more than the 640 acres contained in one square mile. Although Tulsa had

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

acreage, identified in the official U.S. government survey and townsite plat, was reserved from allotment

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

7 Debo, Angie, “The Road to Disappearance” (1941) at 341 and 364.

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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. Whenever Tulsa chartered under the laws of the

State of Oklahoma law in 1908, it evidently included a small area of the Cherokee Nation within its

boundaries. It is unclear how this portion of the Cherokee Nation was acquired and whether the Cherokee

Nation consented to its acquisition or inclusion.

Following the allotment and the sale of Tulsa townsite lots, the city was firmly in the hands of

non-Native American citizens but remained surrounded by Muscogee allotments. Tulsa has grown

beyond its original Indian Territory boundaries since 1907, primarily through the process of state-

approved annexation. It presently encompasses over 200,000 acres, or more than 300 times its original

acreage, and its municipal limits extend well beyond its Muscogee townsite beginnings and into a portion

of the Cherokee Reservation. See, Annexation History at 4, 17. The City of 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 simply defies logic and reflects a fundamental

misunderstanding of how federal, state, and Indigenous laws apply in the exercise of jurisdiction over

such lands.

4. THE CITY OF TULSA’S ATTEMPT TO EXERCISE JURISDICTION OVER

OFFENSES AGAINST NATIVE AMERICANS WITHIN THE MUSCOGEE NATION
IS UNWORKABLE

4.1. Adoption of the City of Tulsa’s current theory would produce unintended
and disconsonant results.

The City of Tulsa champions a theory of municipal jurisdiction that would create strange and

unworkable results. Below is a review of some of the strange outcomes the City’s approach would cause:

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

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 Arkansas law prior to statehood – would have criminal jurisdiction over Indian crimes

committed within intact reservations.

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.

5. 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.

In sum, the City of Tulsa’s piecemeal approach would do absolutely nothing but produce and

result in such absurdities and is therefore indefensible.

4.2. The lone available appeal from Tulsa Municipal Court is to a State court.

The City of Tulsa is a municipal court of record with limited jurisdiction. Its designation as a

“court of record” is predicated upon population. Okla. Stat., tit. 11, § 28-101. This state law designation

is significant. First, municipal convictions for misdemeanors can be used as predicates to support felony

prosecutions in the district courts of the State of Oklahoma.8 Second, the City of Tulsa’s regular appeals

and original actions are prosecuted in the Oklahoma Court of Criminal Appeals. See Okla. Stat., tit. 11,

§ 28-128 and 22 O.S. Rule 1.2. Yet, under McGirt, state courts have no jurisdiction over crimes by or

against Native Americans within the Muscogee Nation and, there is no federal forum for these Curtis Act

appeals. City of Tulsa v. Shaffer, Case No. 6108204. In fact, requiring present-day federal courts to

8 See, 1984 OK AG 142 which found that a municipal court of record conviction for Driving Under the Influence
(DUI) can serve as a predicate for felony in State district court.

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replace the Oklahoma Court of Criminal Appeals in such appeals increases lack of uniformity for Tulsa

residents, subverting the underlying purpose the City of Tulsa promotes from Section 14’s “regardless of

race” provision under the Curtis Act.

Moreover, federal courts are not authorized to handle municipal appeals. While it is true that prior

to 1907, appeals from the mayoral 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, 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 the City of Tulsa cannot continue to claim jurisdiction on the basis of

provisional congressional relics.

CONCLUSION

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.

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 WHEREFORE, the Defendant prays that this Court enter an Order dismissing this matter and

for any other relief the Court deems just and proper.

Respectfully submitted,

Brett Chapman, OBA No. 30334

Sabah Khalaf, OBA No. 30137
The Khalaf Law Firm, PLLC
15 West Sixth Street, Suite No. 2800
Tulsa, Oklahoma 74119
T: (918) 582-2520
F: (918) 592-1149
E: [email protected]

Attorneys for the Defendant

CERTIFICATE OF SERVICE

I, Brett Chapman, certify that on the 22nd day of December, 2021, I provided a copy of the

foregoing to the City of Tulsa Legal Department, 600 Civic Center, Suite 109, Tulsa, Oklahoma 74103.

Brett Chapman

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