Yes, McGirt is Very Likely to Apply to at Least Some Tribes Outside of the Five Tribes
The legal tests articulated in McGirt, and the cases cited therein, could be applied to the factual histories of other tribes, but because tribal histories can be quite unique, there is little reason to believe applying the same test to a different set of facts will lead to similar results for any particular tribe. That said, it is likely that other tribes and tribal members will seek application of McGirt to their tribe and circumstances and some may be successful. Wirth Law Office will be following these efforts.
- Kiowa-Comanche-Apache (KCA). On October 21, 1867, the First Treaty of Medicine Lodge Creek and the Second Treaty Medicine Lodge Creek were entered between the tribes and the United States, which established the original boundaries of the Kiowa-Comanche-Apache reservation. If these boundaries were not disestablished or diminished through Congressional authority, then the original reservation, covering parts of seven counties, including all of Comanche County remain Indian country where the State of Oklahoma lacks jurisdiction to prosecute Indians. Whether the Kiowa-Comanche-Apache reservation has been disestablished will have to be determined by the courts.
- Joshua Codynah. On September 25, 2017, the Defendant entered a blind plea to murder and other charges. The Defendant subsequently filed to withdraw his plea and on appeal to the Oklahoma Court of Criminal Appeals asserted that the Kiowa-Comanche-Apache reservation was never disestablished and therefore the State lacked jurisdiction to prosecute him as he is an Indian and the crime occurred in Indian Country. On September 29, 2020, the Oklahoma Court of Criminal Appeals remanded the case to the trial court for an evidentiary hearing regarding defendant’s Indian status and whether the crime occurred within the reservation. On April 16, 2021, Comanche County Judge Emmit Tayloe ruled below that the Kiowa-Comanche-Apache reservation WAS disestablished by the 1900 Act of Congress. This ruling is on appeal to the Oklahoma Court of Criminal Appeals.
- Mica Martinez v. State.
- Charles Killfirst. On September 17, 2020, Defendant, citing McGirt, filed a pro se supplemental brief in his late appeal to the Oklahoma Court of Criminal Appeals (OCCA) regarding the denial of his petition for post-conviction relief. In this pleading he, for the first time, asserted that the State lacked jurisdiction to prosecute him as he is an Indian and the crime occurred on the Kiowa-Comanche-Apache reservation in Comanche County. Although OCCA decided to allow his appeal out of time, it held that the September 14, 2020, Brief is “Rejected” since the jurisdiction issue was not addressed in the lower court proceedings. The matter was remanded back to the trial court where the defendant was granted court appointed counsel.
- Citizen Potawatomi Nation.
- Travis W. Bentley v. Oklahoma. The defendant was convicted of 1st degree manslaughter, among other offenses, on June 29, 2016. On June 25, 2019, defendant’s application for post-conviction relief was denied by the Oklahoma Court of Criminal Appeals, holding that the defendant has not established that the trial court lacked jurisdiction. Then on July 9, 2020, the same day that McGirt was decided, the United States Supreme Court vacated the order from the Oklahoma Court of Criminal Appeals and remanded the case back to that court. On November 25, 2020, the Oklahoma Court of Criminal Appeals remanded the case back to the trial court (Cleveland County District Court) for an evidentiary hearing within sixty (60) days for the purpose of determining (1) whether defendant has some Indian blood, (2) is recognized as an Indian by a tribe or the federal government, (3) whether the crime occurred within the boundaries of “Indian Country.” The trial court entered its Findings of
- Ottawa Nation.
- Patrick J. Terry v. Oklahoma. The defendant was convicted of manufacturing methamphetamines near a school in 2013. After various attempts at appeal, the Oklahoma Court of Criminal Appeals denied his application for post-conviction relief on February 25, 2019, asserting that Murphy was not final and therefore not binding precedent and that defendant cited no other authority. He appealed to the United States Supreme Court. On the same day that McGirt was decided, the United States Supreme Court vacated the order from the Oklahoma Court of Criminal Appeals in this case. On October 14, 2020, the Oklahoma Court of Criminal Appeals remanded the case to the trial court (Ottawa County District Court) for an evidentiary hearing within sixty (60) days in order to determine whether defendant is an “Indian” and whether the crime occurred in “Indian Country.” Despite a six weeks having passed, as of November 29, 2020, the trial court appears to not have yet scheduled the remand hearing. However, the following tribes have requested leave to file an amicus brief: Ottawa Tribe, Miami Tribe, Shawnee Tribe, Eastern Shawnee Tribe, Wyandotte Nation, Peoria Tribe.
- Quapaw Nation. On November 18, 2020, Judge Baird in Ottawa County dismissed charges against an Indian defendant on the basis that the historic Quapaw Nation reservation was never disestablished and the State lacks jurisdiction to prosecute him. The State filed an appeal to the Oklahoma Court of Criminal Appeals on November 23, 2020.
- Osage Nation.
- Pawnee Nation.
See tribe specific information below.
On April 16, 2021, Comanche County Judge Emmit Tayloe ruled in the cases noted below that the Kiowa-Comanche-Apache reservation WAS disestablished by the 1900 Act of Congress. This ruling is on appeal to the Oklahoma Court of Criminal Appeals. Defendant Mica Martinez filed a third post-conviction relief petition asserting that the State lacked jurisdiction to prosecute hi based on the McGirt precedent. On September 25, 2020, the Oklahoma Court of Criminal Appeals remanded the matter back to Comanche County trial court for a hearing and findings on whether defendant is Indian and whether the location of the crime is within Indian Country. Judge Emmit Tayloe held that all of Comanche County was within the Kiowa-Comanche-Apache reservation
- Joshua Tony Codynah v. State.
- Comanche County CF-2016-479.
- Oklahoma Court of Criminal Appeals C-2019-293.