Petition for Writ of Certiorari — Marvin Keith Stitt, Petitioner v. City of Tulsa, Oklahoma

No.

In the Supreme Court of the United States

──────────────────────────

MARVIN KEITH STITT,

PETITIONER,

v.

CITY OF TULSA, OKLAHOMA,

RESPONDENT.

──────────────────────────

On Petition for Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

──────────────────────────

PETITION FOR WRIT OF CERTIORARI

──────────────────────────

Brett A. Chapman

Counsel of Record

BRETT A. CHAPMAN

ATTORNEY AT LAW PLLC

401 South Boston Avenue, Suite 500

Mid-Continent Tower, Fifth Floor

Tulsa, Oklahoma 74103-4023

(918) 928-2119

bac@brettachapman.com

Counsel for Marvin Keith Stitt

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

QUESTION PRESENTED

Whether a state may exercise criminal jurisdiction

over an Indian for conduct in Indian country absent a valid

congressional grant of authority.

ii

PARTIES TO THE PROCEEDING

The petitioner, Marvin Keith Stitt, holds a grant of citizenship conferred under the laws of the Cherokee Nation,

a federally recognized tribe, making him an American Indian person for the purposes of federal law. United States

v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012) (quoting

United States v. Prentiss, 273 F.3d 1277, 1279 (10th Cir.

2001); see also United States ex rel. Standing Bear v. Crook,

25 F. Cas. 695 (C.C.D. Neb. 1879) (No. 14,891).

The respondent, the City of Tulsa, is a municipal political subdivision under the laws of Oklahoma. See Missouri

v. Lewis, 101 U.S. 22, 30 (1880) (explaining “[e]ach State

has the right to make political subdivisions of its territory

for municipal purposes, and to regulate their local government”).

RELATED PROCEEDINGS

1. City of Tulsa v. Stitt, No. 7569655 (Tulsa. Mun.

Crim. Ct. filed Feb. 3, 2021)

a. Stitt v. McCune, No. 120,627 (Okla. filed Aug.

12, 2022) (refusing original superintending

control jurisdiction and transferring case to

Court of Criminal Appeals as petition for extraordinary relief).

b. Stitt v. McCune, No. PR-2022-722 (Okla.

Crim. App. docketed Aug. 22, 2022) (denying relief).

2. Stitt v. City of Tulsa, No. M-2022-984 (Okla. Crim.

App. filed Nov. 7, 2022) (affirming conviction).

iii

TABLE OF CONTENTS

Question Presented..............................................................................i

Related Proceedings .......................................................................... ii

Table of Contents ............................................................................... iii

Table of Authorities ............................................................................v

Opinions Below.................................................................................... 1

Parties to the Proceeding ................................................................ ii

Jurisdiction ............................................................................................ 1

Statutory Provisions Involved ...................................................... 2

Introduction .......................................................................................... 2

Statement of the Case........................................................................ 5

A. Factual Background ......................................................... 5

B. Procedural Background.................................................. 5

C. Summary of Decision .....................................................12

Reasons for Granting the Petition .............................................15

I.

The Court Should Grant Certiorari to Resolve

Whether States May Exercise Criminal

Jurisdiction Over Indians in Indian Country

Absent a Valid Grant of Congressional

Authorization ....................................................................15

A. The Decision Below Conflicts with Principles

of Established Federal Indian Law ..........................15

B. The Decision Below Misapplied CastroHuerta and Invented an Unprecedented

Framework ........................................................................20

iv

C. The Question Presented Has Exceptional

National Importance ......................................................25

D. This Case Is the Ideal Vehicle for Resolving

the Question Presented ................................................28

Conclusion ...........................................................................................31

v

TABLE OF AUTHORITIES

Cases

Bosse v. Oklahoma,

580 U.S. 1 (2016) (per curiam)...................................................12

Bryan v. Itasca Cnty., Minn.,

426 U.S. 373 (1976) .........................................................................17

City of Tulsa v. O’Brien,

2024 OK CR 31 ........................................................................... 13, 14

City of Tulsa v. Shaffer,

No. 6108204 (Tulsa Mun. Crim. Ct. Feb. 2, 2021) ..... 7, 8, 32

City of Tulsa v. Stitt,

No. 7569655 (Tulsa. Mun. Crim. Ct. filed Feb. 3, 2021) ..... 2

City of Tulsa, Okla. v. Hooper,

143 S. Ct. 2556 (2023) ....................................................................10

Duro v. Reina,

495 U.S. 676 (1990) .........................................................................19

Ex parte Kan-gi-shun-ca,

109 U.S. 556 (1883) ................................................................. 17, 19

Haaland v. Brackeen,

599 U.S. 255 (2023) ................................................................. 16, 21

Hagen v. Utah,

510 U.S. 399 (1994) .........................................................................17

Hooper v. City of Tulsa,

71 F.4th 1270 (10th Cir. 2023) ..................................................... 9

Hooper v. City of Tulsa,

No. 21-CV-165 (N.D. Okla. Apr. 13, 2022), 2022 WL

1105674............................................................................................. 8, 9

vi

McClanahan v. State Tax Comm’n of Ariz.,

411 U.S. 164 (1973) ................................................................. 21, 22

McGirt v. Oklahoma,

591 U.S. 894 (2020) ... ii, 2, 3, 4, 5, 6, 7, 9, 12, 14, 17, 18, 22,

29, 32

Michigan v. Long,

463 U.S. 1032 (1983) ........................................................................ ii

Missouri v. Lewis,

101 U.S. 22 (1880).............................................................................. ii

Nicholson v. Stitt,

2022 OK 35, 508 P.3d 442 .............................................................. 7

Okla. Tax. Comm’n v. Sac & Fox Nation,

508 U.S. 114 (1993) .........................................................................19

Oklahoma v. Castro-Huerta,

597 U.S. 629 (2022) ..... 4, 8, 9, 10, 11, 12, 14, 22, 23, 24, 31,

32

Rice v. Olson,

324 U.S. 786 (1945) .........................................................................17

Rice v. Rehner,

463 U.S. 713 (1983) .........................................................................15

State ex rel. Matloff v. Wallace,

2021 OK CR 21, 497 P.3d 686, cert. denied sub nom. Parish

v. Oklahoma, 142 S. Ct. 757 (2022) ............................................. 4

Stitt v. City of Tulsa,

No. M-2022-984 (Okla. Crim. App. filed Nov. 7, 2022) ....... 2

Stitt v. McCune,

No. 120,627 (Okla. filed Aug. 12, 2022) .................................... 2

vii

Stitt v. McCune,

No. PR-2022-722 (Okla. Crim. App. docketed Aug. 22,

2022) ........................................................................................................ 2

United States ex rel. Standing Bear v. Crook,

25 F. Cas. 695 (C.C.D. Neb. 1879) ................................................. ii

United States v. Antelope,

430 U.S. 641 (1977) .........................................................................12

United States v. Diaz,

679 F.3d 1183 (10th Cir. 2012) .................................................... ii

United States v. Kagama,

118 U.S. 375 (1886) .........................................................................19

United States v. McGowan,

302 U.S. 535 (1938) .........................................................................16

United States v. Prentiss,

273 F.3d 1277 (10th Cir. 2001) .................................................... ii

United States v. Wheeler,

435 U.S. 313 (1978) ................................................................. 16, 17

White Mountain Apache Tribe v. Bracker,

448 U.S. 136 (1980) .................................................. 11, 13, 14, 26

Statutes and Treaties

18 U.S.C. § 1152 ..................................................................16, 20, 29

18 U.S.C. § 1153 ......................................................................... 21, 29

18 U.S.C. § 1162 ..................................................................16, 21, 22

18 U.S.C. § 1321(a)(1) .....................................................................22

28 U.S.C. § 1257(a) ...................................................................... 2, 35

Act of June 28, 1898, ch. 517, 30 Stat. 495 ................... 8, 9, 11

viii

Oklahoma Enabling Act, Pub. L. No. 59-234, § 13, 34 Stat.

267 ............................................................................................................ 9

Constitutional Provisions

Okla. Const. art. I, § 3 .......................................................................20

U.S. Const. amend. X .........................................................................22

U.S. Const. art. I, § 8, cl. 3................................................................23

Miscellaneous

Amelia Mugavero, SCOTUS Requests Review of Tulsa

Murder Case, Potential Expansion of McGirt, KOTV (Oct. 1,

2020), https://perma.cc/

949U-5HRH ........................................................................................... 6

Dale Denwalt, Lawmakers Send $100,000 to Defend State

Prosecutors Against Tribal Sovereignty Lawsuit, The

Oklahoman (May 25, 2025), https://perma.cc/T9UUNVML......................................................................................................13

Joint Settlement Agreement Between Plaintiff Muscogee

(Creek) Nation and City of Tulsa at 4, Muscogee (Creek)

Nation v. City of Tulsa, No. 23-CV-490 (N.D. Okla. June 24,

2025), ECF No. 149-1 ......................................................................30

Nolan Clay, Gov. Stitt’s Brother Loses Appeal of $250

Speeding Ticket in McGirt-Related Case, The Oklahoman

(Mar. 6, 2025), https://perma.cc/VV5E-7HR9 ....................13

1

OPINIONS BELOW

The Oklahoma Court of Criminal Appeals’ correction

order (App., infra, 1a-2a) and the summary opinion (App.,

infra, 3a-7a) below are both published, the former at 2025

OK CR 6 and the latter at 2025 OK CR 5. A previous order

declining extraordinary relief (App., infra, 68a-69a) is unpublished, as is the Oklahoma Supreme Court’s order giving rise thereto refusing the extension of superintending

control jurisdiction (App., infra, 66a-67a). The trial court’s

order denying the petitioner’s second motion to dismiss

(App., infra, 70a-71a) is unpublished but is reported at

2022 WL 22907971. The trial court’s memorandum opinion and order denying the petitioner’s first motion to dismiss (App., infra, 72a-86a) is likewise unpublished.

JURISDICTION

The Court of Criminal Appeals entered judgment on

March 6, 2025, followed by an order denying rehearing on

April 7, 2025. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a) as the decision on direct appeal below is a “[f]inal judgment . . . rendered by the highest court

of a State in which a decision could be had.”

Additionally, since the decision below “‘fairly appears

to rest primarily on federal law or to be interwoven with

federal law’ and lacks any ‘plain statement’ that it was relying on a state-law ground,” this Court has “jurisdiction to

consider the federal-law question presented.” McGirt v. Oklahoma, 591 U.S. 894, 933 n.15 (2020) (citing Michigan v.

Long, 463 U.S. 1032, 1040-41, 1044 (1983)).

2

STATUTORY PROVISIONS INVOLVED

Provisions of the Constitution, treaties, Titles 18 and

25 of the United States Code, Acts of Congress contained in

the United States Statutes at Large, and the Oklahoma Statutes are reproduced in the appendix.

INTRODUCTION

Five years ago, this Court handed down one of the

most courageous and transformational rulings in the entire history of this institution, elevating righteousness over

perpetuating injustice in McGirt v. Oklahoma. 591 U.S. 894

(2020). In the face of dire warnings about chaos and disruption of the established order, this Court chose fidelity

to the rule of law over convenience, declaring that a century of unlawful state jurisdiction over Indian country

would not be permitted to continue simply because it had

been “performed long enough and with sufficient vigor.”

Id. at 937-38.

The Court held in McGirt that lands reserved by Congress for an Indian tribe in the Indian Territory back in the

nineteenth century remain Indian country for criminal jurisdiction purposes. Explaining that “[s]tate courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country’” absent congressional authorization, the Court overturned the long since final Oklahoma

state convictions of Jimcy McGirt, a member of the Seminole Nation, for his deplorable conduct within the bounds

of the neighboring Muscogee (Creek) Nation Id. at 898.

Justice Gorsuch, writing for the Court, relentlessly affirmed the rule of law throughout the landmark opinion,

using its simple principle to clear a path toward justice

over Oklahoma’s cries. In the peroration, “Oklahoma

warn[ed] of the potential consequences that will follow a

3

ruling against it, such as unsettling an untold number of

convictions and frustrating the State’s ability to prosecute

crimes in the future.” Id. at 896. prompting Justice Gorsuch

to emphasize how “Oklahoma and its tribes have proven

time and again that they can work successfully together as

partners, and Congress remains free to supplement its

statutory directions about the lands in question at any

time.” Id.

The case now before the Court reveals that Oklahoma

never intended to accept the restoration of proper jurisdiction. Instead, Oklahoma and its political subdivisions

launched a systematic campaign of legal warfare designed

to achieve through judicial erosion what it could not accomplish directly: effectively overruling this Court’s landmark decision in practice.

Oklahoma’s dire “warnings” of a post-McGirt world

proved prophetic, but not as predictions of inevitable administrative chaos. Rather, they were explicit promises of

deliberate institutional defiance. This case represents the

culmination of Oklahoma’s dismantlement of McGirt

through a calculated two-stage strategy that followed precisely the exact sequence Justice Gorsuch had preserved in

the McGirt opinion: first neutralizing the “unsettling” of

past convictions through judge-made rules in early retroactivity challenges, then systematically “frustrating” future tribal prosecutions through judge-made doctrines of

jurisdictional authority, until Oklahoma successfully reclaimed virtually all the criminal authority over Indians in

Indian country that McGirt had declared fundamentally

unlawful.

The first stage involved using retroactivity as an excuse to reinvent McGirt as a mere judge-made procedural

rule that cannot implicate Oklahoma’s subject matter

4

jurisdiction using extraordinary proceedings in the Court

of Criminal Appeals in State ex rel. Matloff v. Wallace, 2021

OK CR 21, 497 P.3d 686, cert. denied sub nom. Parish v. Oklahoma, 142 S. Ct. 757 (2022), and flooding this Court with

dozens of certiorari petitions desperately seeking the

overrule of McGirt. This phase culminated in Oklahoma v.

Castro-Huerta, 597 U.S. 629 (2022), a limited decision

carving out concurrent state jurisdiction over non-Indians

in Indian country, fueling Oklahoma’s campaign of incrementally eroding McGirt’s jurisdictional framework to succeed where direct challenges had failed.

The second stage, now reaching completion through

this case, has delivered a blow to McGirt’s central promise

through the unchecked transformation of Castro-Huerta

into something that it is not. By unilaterally imposing concurrent state jurisdiction over Indians themselves for violations of state law, Oklahoma has achieved something that

seemed impossible just five years ago: McGirt now applies

only to the most narrow categories of Major Crimes Act

federal prosecutions and tribal prosecutions of a limited

number Indians, while concurrent jurisdiction funnels

most Indians back into state court, to the great injury of

tribes who have invested heavily in their criminal justice

systems and public safety programs. The practical result is

that McGirt’s affirmance of the general rule that state

courts lack jurisdiction to prosecute Indians in Indian

country has been reduced to a hollow shell as Oklahoma

largely reassumes the very authority McGirt declared it

lacked. This systematic defiance of a precedent of this

Court through incremental expansion of unprecedented

exceptions created in a state court of last resort presents a

fundamental challenge to the rule of law that demands this

Court’s immediate intervention.

5

STATEMENT OF THE CASE

A. Factual Background

On February 3, 2021, a Tulsa police officer was patrolling U.S. Highway 75 South at a location that has been Indian country for well over 150 years, as determined by this

Court just six months earlier in McGirt. At this time and

place, the officer spotted a green sports utility vehicle

bearing a Cherokee Nation license plate which appeared to

be traveling at 78 MPH in a 50 MPH zone and conducted a

routine traffic stop. (App, infra, 3a-4a).

Petitioner, the driver and sole occupant, immediately

presented both a valid Oklahoma driver’s license and

Cherokee Nation citizenship card, aware of the recent

McGirt ruling. 1 The police officer ignored the valid tribal

identification, refusing to even examine it, before scanning

the license and issuing a citation summoning the petitioner to the state municipal criminal court in Tulsa rather

than to the appropriate tribal forum, the Muscogee (Creek)

Nation District Court. (Trial Tr. 46:1-49:14).

B. Procedural Background

This Court closed McGirt by declaring that in “reaching

our conclusion about what the law demands of us today,

we do not pretend to foretell the future and we proceed

well aware of the potential for cost and conflict around jurisdictional boundaries.” Id. at 936.

1 Petitioner also made a remark in jest, trading on the public rhetoric

of state leaders associating McGirt with a “get out of prison free card,”

applying it to minor traffic tickets. See e.g., Amelia Mugavero, SCOTUS

Requests Review of Tulsa Murder Case, Potential Expansion of McGirt,

KOTV (Oct. 1, 2020), https://perma.cc/949U-5HRH. The police officer

testified at trial that he did not take the petitioner to mean anything by

the remark. (Trial Tr. 47:12-13).

6

The conflict began immediately. In McGirt’s wake, individual Indians accused of state crimes within Indian

country, began challenging the jurisdiction of Oklahoma

courts to exercise jurisdiction over criminal prosecutions

against Indians in Indian country. This case is the culmination of four related cases litigated in the municipal criminal

court in Oklahoma’s largest city affected by McGirt.

1. Creation of the Curtis Act precedent in City

of Tulsa v. Shaffer

On August 10, 2020, the same day this Court issued its

mandate in McGirt, a Cherokee Nation citizen named Samantha Shaffer moved to dismiss a misdemeanor prosecution brought against her by Tulsa in state municipal criminal court for alleged criminal conduct within the Muscogee

Reservation. See City of Tulsa v. Shaffer, No. 6108204

(Tulsa Mun. Crim. Ct. filed Aug. 10, 2020), 2020 WL

13992044.

One month later, in a separate civil case in state district court brought by several Indians seeking recovery of

pre-McGirt court fines imposed in illegal prosecutions,

Tulsa first raised the claim that Congress had granted ongoing authority to Oklahoma municipalities incorporated

under the federal laws in force prior to statehood in the

Indian Territory under Section 14 of the Act of June 28,

1898, ch. 517, 30 Stat. 495, 499-500, known as the Curtis

Act. 2

Four weeks later, Tulsa made that claim in Shaffer’s

criminal case, claiming that under the Curtis Act, the Court

of Criminal Appeals lacked jurisdiction to hear appeals by

2 The Oklahoma Supreme Court later affirmed the lower court’s dis-

missal on grounds other than Section 14, offering no opinion on the

claim. Nicholson v. Stitt, 2022 OK 35, ¶ 25, n.6, 508 P.3d 442.

7

Indian defendants from state municipal court rulings and

that Indians had to appeal to federal court.

On February 2, 2021, the day before the petitioner was

ticketed, the trial court fully adopted the Curtis Act claim

for the first time, issuing a state court order finding Section

14 granting Tulsa ongoing criminal jurisdiction over all

persons and that “[u]nder McGirt . . . Oklahoma would not

have jurisdiction to hear an appeal of a Native American

who allegedly committed a municipal offense in Indian

Country.” (App., infra, 99a); Shaffer, 2021 WL 12271580.

Shaffer did not appeal.

2. Elevation of the manufactured precedent

through City of Tulsa v. Hooper

On April 5, 2021, in an order indistinguishable from

Shaffer, the trial court denied state post-conviction relief

to a Choctaw Nation named Justin Hooper who was challenging a pre-McGirt citation. (R. 74-88). Hooper’s counsel

then “appealed” to the wrong court in conformity with the

trial court’s order that Oklahoma’s judiciary lacked subject

matter jurisdiction to review his orders finding against Indians. See Hooper v. City of Tulsa, No. 21-CV-165 (N.D. Okla.

filed Apr. 9, 2021).

3. Prosecution of Petitioner

On December 22, 2021, exactly thirty days prior to this

Court’s grant of certiorari in Castro-Huerta, the petitioner

filed his first motion to dismiss raising claims independent

of those made by Hooper, arguing that Section 14 provided

interim remedies that did not survive statehood by operation of Oklahoma Enabling Act, Pub. L. No. 59-234, § 13, 34

Stat. 267 and the state court of last resort was the only appellate forum. (R. 16, 31-32).

8

On April 13, 2022, the district court found that Section

14 had never been repealed and that Tulsa had the ability

to exercise jurisdiction to prosecute all persons under the

Curtis Act, including Indians. Hooper, No. 21-CV-165 (N.D.

Okla. Apr. 13, 2022) (mem.), 2022 WL 1105674. The trial

court denied petitioner’s motion the next week, citing the

district court’s decision upholding its prior rulings on Indian country jurisdiction. (App., infra, 72a-86a) (quoting

Hooper, 2022 WL 1105674, at *5).

Petitioner filed a second motion one month later,

which the trial court denied without explanation, citing

“See Hooper” (App., infra, 71a) before granting Tulsa’s request to enhance petitioner’s charge from simple fine-only

speeding charge to an aggravated speeding charge carrying potential jail time. (R. 477-479).

Two weeks later, on June 29, 2022, this Court decided

Castro-Huerta. One week after the mandate issued, the petitioner sought relief from the Oklahoma Supreme Court

through its exclusive supervisory-control jurisdiction over

inferior courts under the state constitution. (R. 482–509).

The state supreme court disclaimed such jurisdiction and

transferred the matter to the Court of Criminal Appeals as

a petition for extraordinary relief in prohibition, where it

was denied on procedural grounds. (App., infra, 68a–69a).

On October 20, 2022, the trial court found petitioner

guilty of aggravated speeding and imposed a $250 fine.

The petitioner appealed to the Court of Criminal Appeals.

(App., infra, 4a).

9

4. Abandonment of the Curtis Act and forum

shopping concurrent jurisdiction in this

case and City of Tulsa v. O’Brien

Two weeks before petitioner’s trial, undersigned

counsel filed a McGirt motion in a fourth case against an

Osage Nation citizen, Nicholas O’Brien. On January 11,

2023, the trial court denied the motion, citing Hooper.

O’Brien’s subsequent petition for extraordinary relief was

denied by the Court of Criminal Appeals without reaching

the merits.

Then, on June 28, 2023, the Tenth Circuit invalidated

the entirety of Tulsa’s Section 14 claim. Hooper, 71 F.4th

1270 (10th Cir. 2023). O’Brien filed a second motion that

day, which the trial court set for hearing on July 26, 2023.

Meanwhile, in Hooper, Tulsa sought a stay of the Tenth Circuit mandate and sought emergency relief from this Court.

City of Tulsa, Okla. v. Hooper, No. 23A73 (U.S. filed Jul. 24,

2023).

On August 4, 2023, this Court denied the application.

Hooper, 143 S. Ct. 2556. Justice Kavanaugh, joined by Justice Alito, appended a statement recognizing the issue presented herein “raises an important question,” Id., and remarking how “the Court of Appeals [had] declined for now

to reach an additional argument raised by the State of Oklahoma . . . that the City may exercise jurisdiction under the

reasoning in Oklahoma v. Castro-Huerta,” Id. at 2557, opining “[o]n remand in the District Court, the City may presumably raise that argument.” Id. (App., infra, 62a-63a).

Instead, Tulsa abandoned the Hooper case entirely and

redirected Oklahoma’s concurrent jurisdiction argument

to the Court of Criminal Appeals, first raising it in O’Brien’s

case one week after this Court denied the stay. On August

17, 2023, the trial court granted O’Brien’s motion to

10

dismiss, providing Tulsa with a detailed appealable order

to raise the concurrent jurisdiction claim. (App., infra,

11a); see also O’Brien, 2022 WL 11758936.

The next day, Tulsa urged leave to file a supplemental

brief on Hooper’s impact on petitioner’s case as “new authority on issues previously raised,” viz., Section 14.

a. Raising the federal question

The federal question as to whether a state may exercise criminal jurisdiction over an Indian for conduct in Indian country absent a valid congressional grant of authority was raised on September 19, 2023. On that date, the

Court of Criminal Appeals granted Tulsa’s request followed by an order containing an added sua sponte directive that the parties “address the impact of CastroHuerta on the possible preemption of municipal jurisdiction in this case, and whether under [White Mountain

Apache Tribe v. Bracker, 448 U.S. 136 (1980)] the City of

Tulsa has concurrent jurisdiction.” (App., infra, 59a–61a).

On October 19, 2023, in response to the supplemental

briefing order, petitioner contended that Oklahoma lacks

authority to prosecute a tribal citizen for conduct committed within Indian country absent a clear grant of congressional authorization.

1. Petitioner contended that Castro-Huerta “in no way

supports the claim that [Tulsa] has concurrent jurisdiction” because “the opinion disclaims having any implications involving state jurisdiction over Indians within Indian country.” (Supp. Br. 12) (citing Castro-Huerta, 597

U.S. at 650, n.6). “Due to this basic fact, Castro-Huerta has

no place in this case because [petitioner] is a Cherokee citizen. . . did nothing to change the established precedents

11

and foundational principles of law upon which they are

based.” Id.

2. Petitioner argued that Castro-Huerta’s citation to

Bracker does not establish a balancing test for state jurisdiction and that “[w]hen the conduct of an Indian in Indian

country is at issue, the opposite presumption applies –

specifically, that states lack jurisdiction absent an express

congressional grant.” (Supp. Br. 13) (citing Bracker, 448

U.S. at 144).

3. Petitioner contended that established precedent

categorically bars state prosecution of Indians in Indian

Country absent express congressional authorization, citing McGirt, 591 U.S. at 898 (highlighting “[s]tate courts

generally have no jurisdiction to try Indians for conduct

committed in Indian country”) and United States v. Antelope, 430 U.S. 641, 642 n.1 (1977) (stressing tribes have

“exclusive jurisdiction to punish Indians for crimes committed on Indian land” absent congressional authority).

(Supp. Br. at 13-14).

4. Petitioner added that Castro-Huerta did not disturb

settled law or overrule the decisions of this Court and that

the request for briefing on this issue was dictum, citing this

Court’s ruling in Bosse v. Oklahoma, 580 U.S. 1, 2-3 (2016)

(per curiam) for the proposition that only this Court can

overrule its past precedent.

5. Petitioner stated “state criminal jurisdiction over

American Indian defendants for state crimes within Indian

country is per se foreclosed [and] there exists no authorization by Congress to depart from this foreclosure.” (Supp.

Br. 14). He objected to the introduction of this belated jurisdictional theory on the grounds Tulsa waived any concurrent jurisdiction argument by failing to raise it despite

ample opportunity, instead pursuing the contradictory

12

claim that Tulsa enjoyed prosecutorial authority over Indians in Indian country that Oklahoma did not. Id.

C. Summary of Decision

1. O’Brien opinion

On November 5, 2024, one year after the federal question was raised below, Tulsa voters made a change in municipal leadership by electing Monroe Nichols, who ran on

a platform of departing from the policies of his predecessor and seeking reconciliation with the tribes.

On December 5, 2024, the week of Tulsa’s mayoral inauguration, the Court of Criminal Appeals issued its decision establishing concurrent jurisdiction in O’Brien. 2024

OK CR 31, (App., infra, 9a-31a). Subsequently, the Justice

Department filed suit against two Oklahoma prosecutors

for unlawful prosecutions of Indians in Indian country. 3

“The Department of Justice has not backed off the lawsuits

under the Trump administration.” 4

On February 5, 2025, rehearing was denied in O’Brien.

Days later, the trial court “dismissed the case . . . at the request of the city. In his dismissal order, the judge wrote

prosecutors said they were acting pursuant to the ‘Policy

of the City’s Administration.’” 5

3 See United States v. Ballard, No. 24-CV-626 (N.D. Okla. filed Dec. 23,

2024) and United States v. Iski, No. CIV-24-493 (E.D. Okla. filed Dec. 23,

2024); see also Muscogee (Creek) Nation v. Tulsa Cnty., No. 25-CV-75

(N.D. Okla. filed Feb. 13, 2025).

4 Dale Denwalt, Lawmakers Send $100,000 to Defend State Prosecutors

Against Tribal Sovereignty Lawsuit, The Oklahoman (May 25, 2025),

https://perma.cc/T9UU-NVML.

5 Nolan Clay, Gov. Stitt’s Brother Loses Appeal of $250 Speeding Ticket

in McGirt-Related Case, The

https://perma.cc/VV5E-7HR9.

Oklahoman

(Mar.

6,

2025),

13

2. Petitioner’s opinion

Thirty days later, the Court of Criminal Appeals affirmed petitioner’s conviction in a 4-1 decision, holding

“Oklahoma has concurrent criminal jurisdiction in Indian

country over non-member Indian defendants accused of

committing non-major crimes,” finding “that the balance

of interests under Bracker does not preempt the exercise

of state (and thus municipal) jurisdiction” in a short summary opinion. (App., infra, 5a).

As a preliminary matter, citations to the record will be

to the O’Brien opinion in the appendix, as if set forth in this

case verbatim, based upon the finding below that petitioner’s supplemental brief “maintain[ed] CastroHuerta did ‘not impact this case in any way’” and that

“O’Brien also addressed and denied virtually the same Castro-Huerta arguments made by [petitioner] in this case.”

(App., infra, 5a).

The court below then addressed the federal question,

finding state criminal jurisdiction in Indian country is not

preempted under two theories: first, that federal law does

not expressly prohibit state jurisdiction; and second, state

prosecutions of non-member Indians do not unlawfully infringe tribal self-government under the balancing test set

forth in Bracker. (App., infra, 15a-16a).

The court below reasoned that Castro-Huerta established a default rule of state criminal jurisdiction in Indian

Country absent federal preemption, applying this principle

beyond Castro-Huerta’s express limitation to non-Indian

defendants. The court concluded that the General Crimes

Act, Public Law 280, the Indian Civil Rights Act, and the Oklahoma Enabling Act do not expressly preempt state jurisdiction over Indians in Indian country. (App., infra, 15a–

27a) (citing Castro-Huerta, 597 U.S. at 653).

14

Rejecting petitioner’s argument that states categorically lack jurisdiction over Indians in Indian country, the

court below distinguished controlling precedent such as

McGirt as establishing only a “general rule, not a per se

rule.” (App., infra, 26a). The court further held that modern Indian law doctrine has moved “away from the idea of

inherent Indian sovereignty as a bar to state jurisdiction

and toward reliance on federal pre-emption.” Id. at ¶28

(quoting Rice v. Rehner, 463 U.S. 713, 718 (1983)).

Applying Bracker to criminal jurisdiction, the court below found that state prosecution of a “non-member Indian” for conduct outside the Major Crimes Act would not

infringe tribal self-government, would serve federal public

safety interests, and would serve to advance state sovereignty “ensuring criminal justice for all citizens. . .” (App.,

infra, 29a) (emphasis added).

The court below also found “the entirety of Tulsa’s

Curtis Act arguments are without merit.” (App., infra, 30a33a).

Judge Lewis dissented, arguing the majority decision

“reads Castro-Huerta, et al., to authorize [state] infringement of perhaps the most central principle of tribal sovereignty.” (App., infra, 56a-59a) (Lewis, J., dissenting).

15

REASONS FOR GRANTING THE PETITION

I.

The Court Should Grant Certiorari to Resolve

Whether States May Exercise Criminal Jurisdiction

Over Indians in Indian Country Absent a Valid

Grant of Congressional Authorization

A. The Decision Below Conflicts with Principles

of Established Federal Indian Law

1. Precedent establishes the general rule

against jurisdiction absent congressional

authorization

A foundational principle of federal Indian law is that

states lack criminal jurisdiction over Indians in Indian

country absent express congressional authorization. This

rule derives from several constitutional foundations that

combine to create an impermeable barrier to the type of

unauthorized state prosecution at issue below.

First, the Constitution grants Congress “plenary and

exclusive” responsibility over Indian affairs. Haaland v.

Brackeen, 599 U.S. 255, 272-73 (2023) (compiling authorities). “Our cases leave little doubt that Congress’s power

in this field is muscular, superseding both tribal and state

authority.” Id. at 273 (citation omitted); see also United

States v. McGowan, 302 U.S. 535, 538 (1938) (providing

that “Congress alone has the right to determine the manner in which this country’s guardianship over the Indians

shall be carried out”).

Second, tribes retain their sovereignty and powers of

self-government “not withdrawn by treaty or statute, or by

implication as a necessary result of their dependent status,” United States v. Wheeler, 435 U.S. 313, 323 (1978), including “the sovereign power to punish tribal offenders.”

Id. at 312, 323.

16

The constitutional principles establish that “[s]tate

courts generally have no jurisdiction to try Indians for conduct committed in ‘Indian country’” except as expressly

authorized by Congress. McGirt, 591 U.S. at 898; see also

e.g., Hagen v. Utah, 510 U.S. 399, 401–02, 408 (1994) (finding that “Congress has not granted criminal jurisdiction to

. . . Utah to try crimes committed by Indians in Indian country” and only if the locus of the crime “is not in Indian country” did Utah “properly exercise[] criminal jurisdiction

over petitioner, an Indian”) (quotation marks omitted);

The federal policy of leaving Indians free from the imposition of state authority and control is “deeply rooted in

the Nation’s history.” Rice v. Olson, 324 U.S. 786, 789

(1945) (citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515,

557 (1832)). “[T]his Court has long ‘require[d] a clear expression of the intention of Congress before the state or

federal government may try Indians for conduct on their

lands.” McGirt, 591 U.S. at 929 (citing Ex parte Kan-gi-shunca, 109 U.S. at 572).

These principles combine to create a “presumption of

preemption” of state jurisdiction over Indians for on-reservation activities. Rice v. Rehner, 463 U.S. 713, 726

(1983). Under this framework, “[s]tate laws generally are

not applicable to tribal Indians on an Indian reservation

except where Congress has expressly provided that State

laws shall apply.” Bryan v. Itasca Cnty., Minn., 426 U.S. 373,

376 n.2 (1976).

The decision below abandons this foundational framework by presuming state jurisdiction rather than requiring

congressional authorization. Instead of demanding that

Oklahoma demonstrate the required “clear expression of

the intention of Congress” as stated in McGirt, the court

presumed state authority existed. This inversion

17

contradicts two centuries of federal Indian law and violates the constitutional principle that states lack inherent

authority over Indians in Indian country. Without express

congressional authorization, which Oklahoma cannot provide, the state lacks any valid basis for the criminal jurisdiction.

2. Federal law preempts state criminal jurisdiction over Indians in Indian country

Congress has enacted a comprehensive statutory

scheme governing criminal jurisdiction in Indian country

that leaves no room for the unauthorized state prosecution

of Indians. This federal framework demonstrates that Congress has not granted states the authority Oklahoma

claims and has instead reserved criminal jurisdiction over

Indians to federal and tribal governments.

The General Crimes Act, 18 U.S.C. § 1152, establishes

federal jurisdiction over crimes by or against Indians in Indian country, with carefully defined exceptions. The Act’s

structure demonstrates congressional intent to occupy the

field of criminal law in Indian country, and as this Court

recognized in McGirt, “Oklahoma cannot come close to satisfying” the Act’s jurisdictional framework. 591 U.S. at 929.

Notably, § 1152 does not “extend to offenses committed by

one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the

tribe,” Id., thereby preserving exclusive tribal jurisdiction

reserved by treaty over crimes committed by Indians. Id.

The Major Crimes Act, 18 U.S.C. § 1153, extended federal jurisdiction over certain crimes committed by Indians

in Indian country. Congress passed the Act based on an understanding that only tribes had jurisdiction to punish

such crimes. See Ex parte Kan-gi-shun-ca, 109 U.S. 556, 557

18

(1883); United States v. Kagama, 118 U.S. 375 (1886). Together, these Acts create a comprehensive federal framework that allocates criminal jurisdiction between federal

courts and tribal governments based on the nature of the

offense and the parties involved.

Public Law 280 provides the exclusive mechanism by

which states may acquire criminal jurisdiction over Indians in Indian country. Section 1162 of Title 18 establishes

the sole procedure to acquire jurisdiction. Oklahoma is not

a Public Law 280 state and has never obtained congressional authorization to prosecute Indians, which mandates

tribal consent and amendment of Article I, Section 3 of the

Oklahoma Constitution. See e.g., Okla. Tax. Comm’n v. Sac &

Fox Nation, 508 U.S. 114 (1993). The existence of this specific procedure for granting state jurisdiction demonstrates that states lack inherent authority to prosecute Indians and that Congress has not provided any alternative

grant of such authority. If Congress intended states to possess the jurisdiction Oklahoma claims, Public Law 280

would be superfluous.

The Indian Civil Rights Act confirms that Indian status,

not tribal membership, determines criminal jurisdiction.

Congress responded to Duro v. Reina, 495 U.S. 676 (1990),

by explicitly recognizing tribal criminal jurisdiction over

“all Indians,” 25 U.S.C. § 1301(2), including non-members.

This demonstrates congressional intent that Indian status

determines criminal jurisdiction across Indian country.

Congress deliberately used the broad term “all Indians” rather than limiting tribal authority to members only, establishing a unified approach to Indian identity for jurisdictional purposes. Through both Public Law 280 (§ 1162)

and the tribal consent provision of the Indian Civil Rights

Act (§ 1321(a)(1)), Congress made clear that other states

may assume jurisdiction over crimes committed by

19

Indians in Indian country, but only with explicit congressional authorization and tribal consent.

These constitutional principles are reflected in the

comprehensive statutory framework Congress has created. The Constitution grants Congress exclusive authority

over “Commerce . . . with the Indian Tribes,” U.S. Const. art.

I, § 8, cl. 3, extending to individual Indians as members of

the broader Indian political community. This constitutional structure requires that Indian status, not tribal

membership, determines jurisdictional authority, creating

a binary system that recognizes only Indians and non-Indians for jurisdictional purposes.

The comprehensive nature of these federal statutes

leaves no gap for unauthorized state jurisdiction. Federal

preemption in this context is not merely implied but express and comprehensive. The assertion that these statutes do not preempt state jurisdiction contradicts their

plain language, this Court’s interpretation, and the fundamental principle that Congress has occupied the field of Indian country criminal law.

3. The decision violates the constitutional

principles of tribal sovereignty

The decision below fundamentally misunderstands

the constitutional structure governing Indian country. The

Constitution grants Congress “plenary and exclusive” responsibility over Indian affairs, Brackeen, 599 U.S. at 272,

meaning the states cannot retain residual sovereignty under the Tenth Amendment to prosecute Indians in Indian

country. If congressional power in this realm is truly exclusive, there is no space for independent state authority, yet

that is precisely what the decision below authorizes.

20

The assertion below that states retain inherent authority to prosecute Indians in Indian country directly contradicts this constitutional structure. The court cannot

simultaneously acknowledge that Congress has “exclusive” authority over Indian affairs while claiming that

states possess residual Tenth Amendment powers to exercise criminal jurisdiction over Indians. These positions are

logically and constitutionally incompatible.

In McClanahan, this Court explained that when Congress exercises its exclusive authority over Indian affairs,

state power is necessarily displaced: “The trend has been

away from the idea of inherent Indian sovereignty as a bar

to state jurisdiction and toward reliance on federal

preemption.” 411 U.S. at 172. The exclusive nature of federal authority means there is no room for states to claim

concurrent jurisdiction based on general sovereignty principles.

The reliance below on the equal footing doctrine

misses this crucial constitutional point. While states generally enter the Union on equal terms, the Constitution’s

specific grant of authority over Indian affairs to Congress

necessarily limits state power in this realm. As this Court

explained in McClanahan, the doctrine of Indian sovereignty is not “a platonic notion” but reflects “applicable

treaties and statutes which define the limits of state

power.” 411 U.S. at 172. The equal footing doctrine cannot

grant states authority that the Constitution reserves exclusively to Congress.

B. The Decision Below Misapplied Castro-Huerta

and Invented an Unprecedented Framework

The decision below needlessly created an issue of fundamental legal significance by impermissibly abrogating a

decision of this Court (McGirt). The court below

21

transformed Castro-Huerta’s narrow holding about nonIndian defendants into a sweeping authorization for state

prosecution of Indians, precisely the opposite of what that

decision contemplated.

1. Castro-Huerta was limited to non-Indian

defendants and the court below improperly expanded it beyond its scope

The decision below transforms Castro-Huerta into a

valid congressional grant of authority that Oklahoma cannot otherwise demonstrate but does so by misapplying the

decision far beyond its scope and inventing unprecedented legal frameworks. Castro-Huerta addressed only

non-Indian defendants and explicitly disclaimed application to state prosecution of Indians, yet the court below

seized upon the decision’s general language about state

sovereignty to manufacture authority over Indian defendants that Castro-Huerta explicitly declined to address.

Castro-Huerta addressed a single, narrow question:

“whether the State has concurrent jurisdiction with the

Federal Government to prosecute crimes committed by

non-Indians against Indians in Indian country.” 597 U.S., at

652. In that case, this Court held that the General Crimes

Act, in conjunction with other laws, does not prevent Oklahoma’s exercise of criminal jurisdiction over non-Indian

defendants who commit crimes in Indian country involving Indian victims. Id. at 639-640. The decision's scope was

deliberately and expressly limited to this narrow circumstance.

Castro-Huerta explicitly disclaimed application to Indian defendants through multiple express reservations.

See, e.g., Id. at 639 n. 2 (declaring State prosecutorial authority over Indians is “not before us”); Id. at 650 n. 6 (expressing “no view on state jurisdiction” over crime

22

committed by an Indian against a non-Indian in Indian

country); see also Id. at 693 (Gorsuch, J., dissenting) (“Most

significantly, the Court leaves undisturbed the ancient rule

that States cannot prosecute crimes by Native Americans

on tribal lands without clear congressional authorization –

for that would touch the heart of ‘tribal self-government.”’). These disclaimers were not casual observations

but deliberate jurisdictional limitations that preserved the

fundamental distinction between state authority over Indians versus non-Indians in Indian country.

The reasoning below rests on a fundamental logical

error: it treats Castro-Huerta’s silence on Indian defendants as authorization to prosecute them, when the decision’s express disclaimers demonstrate the opposite. This

misapplication violates Castro-Huerta’s own warning that

“the Court’s dicta, even if repeated, does not constitute

precedent.” Id. at 645. The court below violated this principle by extracting broad dicta about state sovereignty and

treating it as binding precedent on questions the Court expressly reserved.

The extension of Castro-Huerta’s narrow holding to

authorize prosecution of Indian defendants, precisely

what Castro-Huerta declined to address, fails to provide

the express congressional authorization that federal Indian law demands. Instead, it creates novel doctrinal categories that fragment the constitutional structure governing Indian country. Castro-Huerta did not upend established precedent or alter the principle that states lack

criminal jurisdiction over Indians in Indian country absent

congressional authorization. This Court did not decide the

question of jurisdiction over Indians because it was not

presented, leaving untouched the established precedent

precluding state jurisdiction over crimes committed by Indians except as authorized by Congress.

23

The decision below represents precisely the kind of

unauthorized judicial expansion that Castro-Huerta

warned against, taking language from one context and applying it to fundamentally different circumstances without

proper analysis. Contrary to the opinion below, CastroHuerta did not change the baseline allocation of jurisdiction in Indian country, and the transformation of limited

dicta into sweeping jurisdictional authority directly contradicts the decision’s express limitations and this Court's

warning against such overexpansion.

2. The unprecedented “non-member Indian”

distinction fragments established law

The creation below of a “non-member Indian” category represents a dramatic judicial invention that has no

basis in federal law and directly contradicts the comprehensive statutory framework Congress has established.

This unprecedented distinction fragments the binary legal

structure that has governed Indian country jurisdiction for

over two centuries.

Federal law recognizes only two categories for jurisdictional purposes: Indians and non-Indians. See Oliphant

v. Suquamish Indian Tribe, 435 U.S. 191 (1978). This binary

distinction reflects the fundamental architecture of federal

Indian law, where Indian status, not tribal membership,

determines jurisdictional authority. No decision of this

Court has ever recognized subcategories within the Indian

classification for jurisdictional purposes.

The “non-member Indian” category finds no support

in Castro-Huerta or any other federal precedent. CastroHuerta addressed non-Indians exclusively, an entirely different legal category, and contains no discussion of jurisdictional distinctions among Indians because the defendant was not Indian at all. The decision’s analysis of state

24

authority over non-Indians provides no foundation for creating novel subcategories among Indians.

The approach below creates precisely the jurisdictional chaos that the uniform federal framework was designed to prevent. By making criminal jurisdiction depend

on the intersection of Indian status and tribal membership,

the decision creates a patchwork of overlapping authorities that defies the clarity Congress has established. An Indian person traveling through Indian country would face

different jurisdictional rules depending on their relationship to each specific tribe whose territory they enter, and

that is a result that contradicts the unified approach Congress has mandated.

3. The application of Bracker to criminal jurisdiction is unprecedented

The use of Bracker balancing below in the criminal

context represents another unprecedented expansion that

fundamentally mischaracterizes the nature of criminal authority and tribal sovereignty. Bracker was designed exclusively for civil regulatory disputes involving questions like

state taxation of tribal businesses. Extending this framework to criminal jurisdiction, which involves the sovereign

power to deprive individuals of liberty, treats constitutional imperatives as mere policy preferences subject to

judicial rebalancing.

Criminal jurisdiction is categorically different from

civil regulation and demands clear, predictable legal rules

rather than case-by-case balancing. Criminal prosecution

represents one of the most fundamental attributes of sovereignty, requiring certainty for law enforcement and due

process for defendants. The Bracker framework’s interestbalancing approach is fundamentally incompatible with

25

the binary nature of criminal jurisdiction, where authority

either exists or it does not.

The balancing approach undermines the comprehensive congressional scheme. Through the Major Crimes Act,

General Crimes Act, and Public Law 280, Congress has

made deliberate judgments about criminal authority allocation. Judicial balancing tests that can override these statutory frameworks usurp Congress’s exclusive constitutional role in Indian affairs and substitute judicial policy

preferences for legislative determinations.

Most fundamentally, Bracker balancing reduces tribal

sovereignty from a constitutional baseline to a mere factor

weighable against state administrative convenience or

public safety concerns. This fundamentally mischaracterizes tribal sovereignty, which is not a judicial policy preference but a constitutional imperative that can only be altered by Congress. The approach below allows state courts

to systematically erode constitutional protections through

case-by-case nullification of federal authority.

C. The Question Presented Has Exceptional National Importance

1. The decision affects the fundamental constitutional relationship between federal

government and tribes

This case strikes at the constitutional foundation of

federal Indian law. The Constitution grants Congress exclusive authority over Indian affairs, and for over two centuries, this Court has recognized that states lack jurisdiction over Indians in Indian country absent express congressional authorization. The decision below upends this

fundamental arrangement by allowing a single state court

26

to manufacture jurisdiction through creative interpretation of federal precedent.

The stakes extend far beyond Oklahoma. The decision

creates a roadmap for systematic erosion of the federaltribal relationship nationwide. If state courts can avoid

federal preemption by creating novel subcategories of Indians and applying civil law balancing tests to criminal jurisdiction, the entire constitutional structure governing Indian country becomes vulnerable to piecemeal judicial dismantlement.

2. Litigation explosion demonstrates the issue’s urgency and universal recognition

The urgency and national significance of the jurisdictional issue presented are already well recognized across

the highest levels of government. Notably, two Justices of

this Court have already acknowledged the issue’s enduring

importance as detailed, see supra p. 10. (App., infra, 62a63a). In that same vein, the federal government has taken

extraordinary steps in response to the ruling of the court

below as in the form of the lawsuits against the state prosecutors, see supra p. 13.

Even the parties on opposing sides of this issue now

agree that Supreme Court review appears inevitable. In a

joint settlement filed just one week before the filing of this

petition, Tulsa and the Muscogee Nation expressly

acknowledged that “cases are pending which, if appealed

to the United States Supreme Court, may resolve or reconcile the conflicting opinions of federal and state courts.”

Joint Settlement Agreement Between Plaintiff Muscogee

(Creek) Nation and City of Tulsa at 4, Muscogee (Creek) Nation v. City of Tulsa, No. 23-CV-490 (N.D. Okla. June 24,

2025), ECF No. 149-1 (citing the instant case).

27

The practical stakes are equally substantial. Nine federally recognized reservations in eastern Oklahoma alone

span vast areas, encompassing multiple counties and hundreds of cities. The decision below exposes over 400,000

tribal citizens to state prosecution in Indian country, a jurisdiction where Congress has never authorized such authority. The constitutional question is not academic. It affects the daily lives of Indian people moving through overlapping jurisdictions in modern Indian country.

3. No other institution can halt systematic judicial nullification

The question presented carries exceptional national

importance because no institution other than this Court

can prevent the systematic judicial nullification of federal

Indian law currently underway in Oklahoma. The Oklahoma Court of Criminal Appeals, as the state’s highest

criminal court, has issued a final and binding ruling adopting a theory of concurrent jurisdiction that directly conflicts with federal precedent. The Oklahoma Supreme

Court lacks authority to intervene, as it has no appellate

jurisdiction over the Court of Criminal Appeals. While it

has recognized the continuing force of McGirt in civil cases,

it cannot override the criminal rulings at issue here.

Nor can political or administrative processes supply a

remedy. The same political forces that produced this jurisdictional crisis are unlikely to permit meaningful legislative correction. More fundamentally, the issue presented is

not one of policy discretion but of constitutional command.

The question of whether a state may prosecute Indians in

Indian country without congressional authorization implicates foundational principles of federal supremacy,

preemption, and the federal government’s exclusive

28

relationship with tribes. These are issues only the judiciary

can resolve.

Permitting the decision below to stand would invite

further fragmentation of federal Indian law by state courts

acting under color of federal precedent. If a state’s highest

court can recast limited federal holdings to disregard the

constitutional limits on state authority in Indian Country,

then the protections established by this Court are vulnerable to misinterpretation by lower courts. Only this Court

can restore constitutional order and reaffirm that federal

Indian law remains a matter of federal supremacy, not

state reinterpretation.

D. This Case Is the Ideal Vehicle for Resolving the

Question Presented

This case provides the Court with the optimal vehicle

to address the fundamental question presented. The petition presents clean, undisputed facts that squarely raise

the question without procedural complications or factual

ambiguities.

1. Clean facts present pure question of law

The jurisdictional issue was outcome-determinative

below. Had the court below correctly recognized that Oklahoma lacked authority to prosecute petitioner for conduct occurring within the boundaries of the Muscogee Reservation, the conviction would have been reversed. The

federal question thus directly controlled the outcome.

The facts are straightforward and present the archetypal scenario the newly announced “non-member Indian”

rule below is intended to govern. Petitioner was cited for

speeding while traveling through another tribe’s reservation. There is no dispute about petitioner’s status, the location within the Muscogee Reservation, or the trial court’s

29

assertion of criminal jurisdiction. The case cleanly presents the controlling legal question: whether a state may

exercise criminal jurisdiction over an Indian for conduct in

Indian country absent a valid congressional grant of authority, regardless of tribal affiliation. Any ruling from this

Court will thus directly resolve the novel legal question the

decision below created.

2. The federal question was prominently

raised

The federal constitutional question at the heart of this

case was not only preserved at every stage but ultimately

became the focal point of the litigation. Although the parties herein briefed a different jurisdictional theory which

had dominated the case for years, the court below raised

the question of concurrent jurisdiction under CastroHuerta, signaling its intent to reach the broader federal issue. The constitutional stakes were emphasized by broad

participation, with multiple tribes and the United States all

submitting amicus briefs below.

The decision now stands as binding precedent from

Oklahoma’s highest court with statewide effect on all prosecutions involving Indians in Indian country. The reasoning, firmly grounded in an expansive reading of CastroHuerta, will carry persuasive weight in other jurisdictions.

Without immediate intervention, this decision will have

widespread impact, upending long-settled principles of

federal Indian law.

3. This case exemplifies how this issue arises

in practice

This case represents exactly how jurisdictional questions manifest in contemporary practice. A routine traffic

stop involving an Indian traveling through another tribe’s

30

reservation presents the representative fact pattern that

will recur countless times absent this Court’s intervention.

The facts are neither exotic nor legally complex, ensuring

that any ruling will provide clear guidance for the thousands of similar cases that will inevitably arise.

More broadly, this case reflects the realities of modern

Indian country. Unlike in the historical era, tribal lands today often encompass densely populated and urbanized areas, such as Tulsa, where numerous tribal jurisdictions

overlap and where Indian persons regularly cross reservation boundaries in the ordinary course of life. This case

arose in that modern context which is wholly dissimilar

from the more isolated reservation settings of the historical era. The jurisdictional rule adopted below will therefore govern an inestimable number of routine encounters

between Indians and state authorities.

The timing of this case serves to further underscore its

significance. The case originated one day after the trial

court’s Shaffer order first attempted to restore pre-McGirt

universal state criminal jurisdiction over all persons, including Indians, revealing how quickly and aggressively

state and local authorities moved to circumvent McGirt.

Over the ensuing four years, this case has captured the

evolution of Oklahoma’s shifting theories, beginning with

the meritless Curtis Act claim to the current assertion of

concurrent jurisdiction under Castro-Huerta. This procedural history offers the Court a uniquely comprehensive

and well-developed record illustrating how state actors

have responded to, and attempted to limit, the implications of this Court’s precedent.

31

4. No problems impede review and immediate resolution is critical

The petition arises from a final judgment of Oklahoma's highest court and falls squarely within this Court’s jurisdiction under § 1257(a). The case is free of mootness or

standing concerns. The trial court judgment remains

stayed pending appeal, petitioner suffered concrete injury

through prosecution in a court lacking jurisdiction, and the

legal consequences persist.

The urgent need for resolution is pressing and undeniable. The decision below has triggered federal litigation

across multiple district courts confronting the same jurisdictional questions, risking conflicting interpretations and

undermining uniformity in constitutional matters. Additional Indians face constitutionally infirm state prosecutions daily. The ruling threatens the constitutional relationship between tribes and their citizens by allowing unauthorized state intrusion.

This petition unites clean facts, a dispositive federal

question, and compelling need for uniform constitutional

resolution. No other case presents the federal question

with comparable clarity and complete procedural development. This matter presents the ideal vehicle for addressing

one of the most consequential questions in federal Indian

law history, and the Court’s intervention is urgently

needed.

CONCLUSION

For the foregoing reasons, the Court should grant the

petition.

32

Respectfully submitted,

Brett A. Chapman

Counsel of Record

JULY 7, 2025

BRETT A. CHAPMAN

ATTORNEY AT LAW PLLC

401 South Boston Avenue, Suite 500

Mid-Continent Tower, Fifth Floor

Tulsa, Oklahoma 74103-4023

(918) 928-2119

bac@brettachapman.com

Counsel for the Petitioner