McGirt v Oklahoma

Download the full text of McGirt-v-Oklahoma (pdf)

 

Five Civilized Tribes

McGirt v Oklahoma Summary

On July 9, 2020, the United States Supreme Court returned a decision that significantly changed criminal prosecution in Oklahoma. The court determined that boundaries of the Muscogee (Creek) Reservation had not been reduced when Oklahoma gained statehood in 1907.

Because the Muscogee (Creek) Nation enjoys jurisdiction over its members within the boundaries of its reserved land, the decision meant Oklahoma had no authority to prosecute Muscogee (Creek) members for crimes under Oklahoma law. Tribal members can be prosecuted under tribal law, or in the case of major crimes, under United States federal law.

The decision directly involved one individual, Jimcy McGirt, who had been convicted of crimes under Oklahoma law. The case sets precedent, however, that controls how any Native American may be prosecuted on any of five reservations in Oklahoma. Those tribal nations include the Seminole, Cherokee, Muscogee (Creek), Choctaw and Chickasaw nations.

Release from Prison is not Automatic

seal of the state of OklahomaSignificant consequences resulted from the decision. Tribal members convicted of Oklahoma crimes became eligible to have their cases dismissed.  The five tribes may charge some of those people under tribal law. Others may be charged under federal law.

Changes that resulted from the decision became inevitable, but not automatic. Tribal members convicted of Oklahoma crimes may petition Oklahoma courts for release from prison, or from other terms of their sentences. Until a court determines they are eligible for release, their convictions may stand. Some have sought damages for their convictions in state courts.

Once released from their state convictions, tribal members might face charges in tribal or federal courts. Police and prosecutors throughout Eastern Oklahoma must now determine whether a person arrested or suspected of a crime is a tribal member.

Wirth Law Office has prepared several informative videos detailing the impacts of the McGirt v Oklahoma ruling. This page provides links to those videos, and other McGirt resources.

Free Consultation: McGirt Criminal Defense Attorneys

If you or a loved one are a tribal member who has been convicted of a crime in Oklahoma courts, a Tulsa criminal defense attorney can help you determine how the McGirt decision affects your case. If you are charged with crimes in a tribal court or you are a tribal member charged with crimes in federal court, a Wirth Law Office defense attorney can explore with you options for your defense.

For a free, confidential consultation about McGirt matters or criminal prosecution in Oklahoma Indian Country, contact Wirth Law Office through this Web page, or call the Tulsa attorneys at (918) 879-1681 .

To What Historic Reservation Boundaries Does the McGirt Precedent Apply?

Both McGirt and Murphy dealt with crimes alleged to have occurred within the historic boundaries of the Muscogee (Creek) Nation; however, the circumstances of that tribe’s land and treaties are almost identical to that of the other “Five Civilized Tribes.”  Therefore, the legal logic in McGirt almost certainly must be applied to each of the “Five Tribes.”  Nonetheless, many prosecutors and some judges are holding out and waiting for appellate court decisions specific to the other tribes before dismissing cases or vacating convictions for crimes alleged to have occurred on those reservations.

  • Muscogee (Creek) Nation.  The United States Supreme Court in both McGirt and Murphy held that the historical Muscogee (Creek) Nation reservation of the tribe was never disestablished.  As the decision by the highest court of the land was directly on point to this this tribe, Wirth Law Office has already been able to obtain the dismissal of pending charges in State courts within the Muscogee (Creek) Nation reservation.  However, the State is still contesting some attempts to vacate convictions against Indians” for crime which occurred within the Muscogee (Creek) Nation.
    • Shannon James Kepler v. Oklahoma.  After several jury trials resulted in mistrials for Mr. Kepler, the State obtained a conviction for 1st Degree Murder and two convictions for Shooting with Intent to Kill.  The defendant filed a direct appeal to the Oklahoma Court of Criminal Appeals, which was still pending when McGirt was decided.  The Oklahoma Court of Criminal Appeals remanded the case back to the trial court for an evidentiary hearing on whether defendant is an “Indian” and whether the crime occurred in Indian Country.  Per  stipulations agreed upon by the parties, the court found both of these questions in the affirmative and now the case is awaiting a decision from the Oklahoma Court of Criminal Appeals.  Despite have no clear grounds to object to overturning defendant’s convictions for lack of subject matter jurisdiction, the State is still fighting the appeal.
  • Cherokee Nation.  Judges in Tulsa County District Court are transferring all cases where McGirt arguments are being made to a special docket that Judge Tracy Priddy is overseeing.  Although Judge Priddy has dismissed cases alleged to have occurred within the Muscogee (Creek) reservation; she has continued many cases where crimes are alleged to have occurred within the historic Cherokee Nation reservation, which covers the northernmost part of the county.  On Friday, October, 13, 2020, she continued 123 such cases to February of 2021, as she is awaiting further guidance from the Oklahoma Court of Criminal Appeal regarding whether the McGirt precedent applies to the Cherokee Nation reservation.  Wirth Law Office is objecting to the court keeping Indian defendants in jeopardy with pending cases when it is clear the State lacks jurisdiction to prosecute.  The Judge should use existing precedent, apply it to the facts of the Cherokee Nation and dismiss these cases rather than delay proceedings to get a decision from a court with substantially less authority than the United State Supreme Court.  Let us not forget that the Oklahoma Court of Criminal Appeals denied relief to both Murphy and McGirt before being overruled the US Supreme Court.
    • Travis John Hogner.
      • Craig County CF-2015-263.  The defendant was convicted of possession of a firearm after former conviction of a felony in 2017.  On September 14, 2020, the Amicus Brief of Cherokee Nation was filed with the trial court. Remand hearing occurred on September 21, 2020 and through a September 30, 2020, Order on Remand the trial court found that the defendant “(1) has some Indian blood and (2) is recognized as an Indian by a tribe or the federal government.”  The trial court additionally found that the Cherokee Nation reservation was never disestablished and therefore the crime occurred in “Indian Country.”
  • Chickasaw Nation.
    • Shaun Michael Bosse v. Oklahoma.  The defendant was charged with multiple counts of 1st degree murder on July 26, 2010 in McClain County District Court and later convicted of the charges.  After various appeal attempts, on August 12, 2020, the Oklahoma Court of Criminal Appeals, citing McGirt, remanded the case back to the trial court in McClain County for a hearing to determine whether the victims were Indians (the defendant in this case is not an Indian) and whether the crime occurred in Indian County (i.e. whether the Chickasaw Nation reservation has been disestablished).  The trial court’s October 13, 2020, Findings of Fact and Conclusions of Law holds that the crime victims were Indians and that this crimes occurred in “Indian Country.”  That is, the trial count found that the Chickasaw Nation reservation has not been disestablished.  With these findings submitted to the Oklahoma Court of Criminal Appeals, the defendant is now awaiting a decision from that court.  The Chickasaw Nation filed an Amicus Brief in this case, support of the continued existence of the Chickasaw reservation, on November 4, 2020.
    • Miles Sterling Bench v. Oklahoma.  Defendant is appealing his conviction and death sentence, arguing among other things that the court lacked jurisdiction to prosecute him based on the Chickasaw Reservation never being disestablished.  The Oklahoma Court of Criminal Appeals ordered a remand hearing to determine “whether (1) Appellant has some Indian blood, and(2) is recognized as an Indian by a tribe or the federal government”  and whether Congress established reservation for the Chickasaw Nation, and if so, whether Congress specifically erased those boundaries and disestablished the reservation.”  On November 5, 2020, the trial court held that the defendant is an Indian and that the Chickasaw Nation reservation was never disestablished.  This decision is now awaiting review by the Oklahoma Court of Criminal Appeals.
    • Clarissa Marie Mars. On October 13, 2020, Defendant filed for Post-Conviction Relief asserting the court lacked jurisdiction to prosecute her based on McGirt precedent. As of November 19, 2020, no hearing date has been set.
  • Choctaw Nation.
    • Keith E. Davis v. Oklahoma.  The defendant was convicted of forcible sodomy, among other things, in 2005.  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 7, 2020, the Oklahoma Court of Criminal Appeals remanded the case back to the trial court for evidentiary hearing regarding jurisdiction given the decision in McGirt.  Said  hearing  is  set for November 20, 2020.
    • Devin Sizemore v. Oklahoma.  On October 28, 2020, Judge Tim Mills of the Pittsburg County District Court made a finding of fact for a remand order, finding that the Choctaw Nation reservation was never disestablished.  The case is now pending a final ruling from the Oklahoma Court of Criminal Appeals.
    • James Chandler Ryder v. Oklahoma.
      • Pittsburg County
  • Seminole Nation.
    • Joe Johnson v. Oklahoma.  The defendant was charged  with 1st degree murder back in 1977 and convicted.  On July 24, 2018, the Oklahoma Court of Criminal Appeals denied defendant’s 11th application for post-conviction relief.  Two years later, on 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 23, 2020, the Oklahoma Court of Criminal Appeals remanded the case back to the trial court (Seminole County District Court) for a hearing within sixty (60) days to determine whether the defendant is an “Indian” and whether the crime occurred in “Indian Country.”  The fact that the Oklahoma Court of Criminal Appeals remanded the case appears to indicate that it is not inclined to allow technical/procedure defects to prevent these McGirt appeals, despite the Attorney General’s arguments otherwise.  After all, the original case here is from 1977 and it was the defendant’s 11th post-conviction appeal.  If the AG cannot win on technical/procedural defenses (waiver, estoppel, laches) in this case, how can it on any other case?

Does McGirt Apply to Tribes Outside of the Five Civilized 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.  An evidentiary hearing was scheduled for November 24, 2020,  but  was  stricken  to  be  reset  on  application.
    • 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.” This  hearing  has  been  scheduled  for  January  15,  2020.
  • 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.

Does Oklahoma Have Jurisdiction over Non-Indian Defendants with Indian Victims

No.  If a crime occurs in “Indian Country,” and EITHER the defendant or the victim is an “Indian” then the State lacks jurisdiction to prosecute.  The Oklahoma Court of Criminal Appeals articulated this as far back as 1989 in State v. Klindt, 1989 OK CR 75, which said in dicta, “the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.”  Also see  Cravatt v. State, 1992 OK CR 6.  However, in both of these cases the defendant was an Indian, so the holding in the case was not dependent on the victim being an Indian.  See below a case currently pending on appeal with the Oklahoma Court of Criminal Appeals where the defendant is non-Indian and the victims are Indian.

Is the Timing of Obtaining Tribal Membership Relevant to Jurisdiction?

Some prosecutors are objecting to dismissals based on McGirt if the Defendant was not a tribal member on the date of the alleged offense.  When determining who is an “Indian” under the relevant Federal law, is one born an Indian or does one only become an Indian when registering with the relevant tribe?  Prosecutors are asserting the latter and citing non-precedential authority from other jurisdictions.  No precedential authority has been discovered on this issue and therefore it is likely to be litigated.  Best practice at this point, is to research the Tribe’s laws regarding membership to see if there is a provision for membership at birth, in addition to membership at enrollment.

  • United States v. Zepeda, 792 F3d 1103, 1113 (9th Cir. 2015).
    • “In a prosecution under the IMCA, the government must prove that the defendant was an Indian at the time of the offense with which the defendant is charged. If the relevant time for determining Indian status were earlier or later, a defendant could not “predict with certainty” the consequences of his crime at the time he commits it. Apprendi v. New Jersey, 530 U.S. 466, 478 (2000). Moreover, the government could never be sure that its jurisdiction, although proper at the time of the crime, would not later vanish because an astute defendant managed to disassociate himself from his tribe. This would, for both the defendant and the government, undermine the “notice function” we expect criminal laws to serve. United States v. Francisco, 536 F.2d 1293, 1296 (9th Cir.1976).”
  • State v. Perank, 858 P.2d 927, 932 (Utah 1992).
    • “Although Perank was not formally enrolled in the Ute Tribe at the time of his conviction, lack of enrollment does not determine Indian status for purposes of jurisdiction. See Ex parte Pero, 99 F.2d at 31; St. Cloud, 702 F. Supp. at 1461; LaPier, 790 P.2d at 987. Nevertheless, the Tribe formally recognized Perank as an Indian and as a member of the Tribe by his enrollment in the Tribe at a later date. Moreover, under the terms of the Ute Indian Tribe Constitution, it appears that Perank was a member of the Ute Tribe at the time of the offense. Article II, section 1(b) of the Constitution provided that a child born to a member of the Tribe living on the Reservation at the time of the birth is entitled to membership. That provision states:  Section 1. The membership of the Ute Indian Tribe of the Uintah and Ouray Reservation shall consist as follows:  . . .  (b) All children born to any member of the Ute Indian Tribe of the Uintah and Ouray Reservation who is a resident of the Reservation at the time of the birth of said children.”

Does McGirt Precedent Apply to Misdemeanors?

The McGirt case specifically dealt with a crime enumerated under the Major Crimes Act (18 U.S.C. 1153) and committed within the historic Muscogee (Creek) Nation reservation.  The Major Crimes Act provides that the prosecution of an Indian for a “major crime” occurring in Indian County is within the “exclusive jurisdiction of the United States.”  (Emphasis added).  It cannot be prosecuted in State court or tribal court.  But, can the State prosecute Indians for lessor offenses (such as misdemeanors) occurring in Indian Country?  The general consensus is that the State cannot prosecute Indians for any type of crime occurring in Indian County and this position is based on the General Crimes Act (18 U.S.C. 1152).   Pending cases are being dismissed against Indians charged with misdemeanors in State courts in Indian Country on this basis.  However, unlike the Major Crimes Act, the General Crimes Act’s creation of Federal jurisdiction to prosecute Indians does not include the aforementioned exclusivity language and one Judge has held that McGirt does not apply to misdemeanor crimes:

  • State v. Raymond Arthur Bogumill.  The defendant is being charged with misdemeanor possession of meth (which incidentally is considered a felony in Muscogee (Creek) Nation code).  He files a motion to dismiss based on McGirt.  On November 4, 2020, Judge Brendon Bridges found that defendant is an Indian and the alleged crime occurred in Indian Country, but denied the motion to dismiss because it is “not major crime.”  Case is set for disposition on January 29, 2021.

Does McGirt Precedent Apply to Municipal Courts?

On February 2, 2021, Judge McCune, the presiding judge for Tulsa Municipal Court, ruled that the City of Tulsa maintains jurisdiction over Indians who are alleged to have committed offenses within the boundaries of the City of Tulsa, irrespective of the McGirt holding.  McCune found that Section 14 of the Curtis Act is still in full force and effect. Said section provides that “all inhabitant of such cities and towns, 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 protection therein.”  In the matter before Judge McCune, the defendant asserted that as a political subdivision of the State of Oklahoma, the City of Tulsa could not exercise authority beyond that which the State can exercise.  The defendant further cited Muscogee (Creek) Nation v. Hodel, 670 F. Supp. 434 (1987), for the proposition that the Curtis Act of 1898 does not grant the city subject matter jurisdiction over Indians.  In denying the defendant’s motion to dismiss, and determining that the municipal court has jurisdiction over Indian defendants, Judge McCune acknowledged the awkwardness of the scenario his order creates.  The order finds his court has jurisdiction even though the State courts above it, which would normally hear appeals of his decisions, do not have jurisdiction.   However, McCune’s order noted that appeals from Indian cases in his court would be heard in Federal court, which is where this case is likely to end up.

Is There A Requisite Blood Quantum for McGirt Relief?

Prosecutors do not like dismissing cases or having convictions overturned, so there has been much incentive for creative arguments to get around the consequences of the McGirt ruling.  One such argument is to decrease the number of people that qualify as “Indian” by requiring some specific quantum of Indian blood, irrespective of tribal membership.  The authority cited for this argument is Goforth v. State, 1982 OK CR 48.  However, the Diaz case noted below is the highest precedential authority deciding “Indian” for Oklahoma courts and it merely requires “some Indian blood.”  As can be seen from the quotes below, the language used to describe the blood requirement has evolved over time.

  • Goforth v. State, 1982 OK CR 48, ¶6.
    • “Two elements must be satisfied before it can be found that the appellant is an Indian under federal law. Initially, it must appear that he has a significant percentage of Indian blood. Secondly, the appellant must be recognized as an Indian either by the federal government or by some tribe or society of Indians. United States v. Rogers, 45 U.S. (4 How.) 567, 11 L.Ed. 1105 (1846).”
  • United States v. LaBuff, 658 F.3d 873, 874-75 (9th Cir. 2011).
    • “To meet its burden, the government must prove both that *875 the defendant has a sufficient “degree of Indian blood” and has “tribal or government recognition as an Indian.” United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.2005) (internal quotations omitted).”
  • Vialpando v. State, 640 P.2d 77, 79-80 (Wyo. 1982).
    • “The court then approved a test to determine whether or not a person is an Indian for purposes of criminal jurisdiction as follows: “Substantial amount of Indian blood plus a racial status in fact as an Indian.””
  • United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012).
    • “To find that a person is an Indian the court must first make factual findings that the person has “some Indian blood” and, second, that the person is “recognized as an Indian by a tribe or by the federal government.” Id. at 1280 (citations omitted). United States v. Keys, 103 F.3d 758, 761 (9th Cir.1996) (same test); United States v. Torres, 733 F.2d 449 (7th Cir.1984) (same).”

Can Subject Matter Jurisdiction be Waived

In an attempt to avoid the overturning of thousands of unlawful convictions in Oklahoma courts, many prosecutors and the State Attorney General are asserting that lack of jurisdiction arguments were waived by the defendants not asserting it previously or that the doctrine of “Laches” prevents it from being heard now given the delay.  However, Oklahoma case law has historically been clear that subject matter jurisdiction can NEVER be waived.  Orders from a court that lacked subject matter jurisdiction are not just voidable, they are void ab initio (from the beginning).  This means the court need not vacate the order; instead, the court must simply acknowledge that the order was never valid.  Below are case law quotes, including the initial one from the United States Supreme Court in McGirt:

  • ” The Court suggests that ‘well-known’ ‘procedural obstacles’ could prevent challenges to state convictions. Ante, at 38. But, under Oklahoma law, it appears that there may be little bar to state habeas relief because ‘issues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal.’ Murphy v. Royal, 875 F. 3d 896, 907, n. 5 (CA10 2017) (quoting Wallace v. State, 935 P. 2d 366, 372 (Okla. Crim. App. 1997)).”  McGirt v. Oklahoma, 591 U.S. ______ (2020).
  • “[I]ssues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal.”  Wallace v. State , 1997 OK CR 18, ¶15.
  • “There are, of course, some constitutional rights which are never finally waived. Lack of [subject matter] jurisdiction, for instance, can be raised at any time.”  Johnson v. State , 1980 OK CR 45, ¶15.
  • “Jurisdiction of the subject-matter cannot be conferred by consent, nor can it be waived, and it may be raised at any time before or after trial, and even for the first time in the appellate court.”  Armstrong v. State, 1926 OK CR 259, Pg. 118.
  • “A court has a duty to inquire into whether it possesses jurisdiction over the subject matter of an action that has been brought before the court.”  Dutton v. City of Midwest City, 2015 OK 51, ¶15.
  • “The question of the jurisdiction of the court over the subject matter of an action is properly raised by motion to dismiss for want of jurisdiction; even in the absence of such a motion, it is the bounden duty of the court to inquire into its own jurisdiction.”  Sanders v. Oklahoma Employment Security Commission, 1948 OK 116.

Can the Court Delay Dismissal to Allow Time for Charges in Tribal or Federal Court?

In the Travis Hogner, mentioned above (Oklahoma Court of Criminal Appeals F-2018-138), the Attorney General in its Supplemental Brief of Appellee After Remand nearly acknowledges that the State had no jurisdiction to prosecute and confine the defendant but states, “Should this Court find the defendant is entitle to relief . . . the State respectfully requests this Court stay any order reversing the conviction in this case for thirty days to that the appropriate authorities can review his case and determine whether it is appropriate to file charges and take custody of the defendant.”  The State’s sole cited authority for this request is Okla. Stat. tit. 22, § 846; however, this statute is relegated to circumstances where the State of Oklahoma has subject matter jurisdiction but the case was filed in the wrong county/venue.  This statute does not provide authority for the State to hold someone where the State has no subject matter jurisdiction.

McGirt Class Action Lawsuits

If the State of Oklahoma lacked jurisdiction to prosecute Indians for crimes alleged to have occurred on tribal reservation land (now considered to include nearly half the State of Oklahoma), what about the those wrongfully prosecuted and held and those required to pay fines and costs that the State had no authority to collect?  That will have to be decided by Oklahoma courts and the Wirth Law Office is monitoring class-action lawsuits demanding compensation from the State:

  • Muscogee (Creek) NationJason Nicholson, et al. v. Kevin Stitt, et al. was filed in Okmulgee County District Court CJ-2020-94 on July 13, 2020.  This lawsuit seeks class-action status on behalf of Indians improperly prosecuted by the State within the territory of the Muscogee (Creek) Nation and the return of fines and costs paid to the State of Oklahoma by Indians unlawfully prosecuted in Tulsa County District Court, McIntosh County District Court, Okmulgee County District Court, Wagoner County District Court, Muskogee County District Court, Okfuskee County District Court, Mayes County District Court, Rogers County District Court, and the dozens of city court located within the Muscogee (Creek) Nation.  On November 24, 2020, the case was dismissed by Judge Pandee Ramirez.  The plaintiffs filed an appeal with the Oklahoma Supreme Court on December 18, 2020:

McGirt v. Oklahoma Boundaries Maps

Boundaries of the Muscogee (Creek) Nation Reservation

The Muscogee (Creek) Nation boundaries can be found on the following map:  wlo.me/MuscogeeCreekNation.  It includes all or a part of each of the following Oklahoma counties: Creek County, Hughes County, Okfuskee County, Okmulgee County, Mayes County, McIntosh County, Muskogee County, Seminole County, Tulsa County, and Wagoner County.

McGirt v Oklahoma Boundaries Map

Historic Boundaries of the Cherokee Nation Reservation

The historic Cherokee Nation boundaries can be found on the following map:  wlo.me/CherokeeNation.  It includes all or a part of each of the following Oklahoma counties: Adair County, Cherokee County, Craig County, Delaware County, Mayes County, McIntosh County, Muskogee County, Nowata County, Ottawa County, Rogers County, Sequoyah County, Tulsa County, Wagoner County, and Washington County.

Historic Boundaries of the Seminole Nation Reservation

The historic Seminole Nation boundaries can be found on the following map:  wlo.me/SeminoleNation.  It includes all or a part of each of the following Oklahoma counties: Seminole County.

Historic Boundaries of the Choctaw Nation Reservation

The historic Choctaw Nation boundaries can be found on the following map:  wlo.me/ChoctawNation.  It includes all or a part of each of the following Oklahoma counties: Coal County, Hughes County, Haskell County, Latimer County, Pittsburg County, Atoka County, LeFlore County, Pushmataha County, McCurtain County, Choctaw County, and Bryan County.

Historic Boundaries of the Chickasaw Nation Reservation

The historic Chickasaw Nation boundaries can be found on the following map:  wlo.me/ChickasawNation.  It includes all or a part of each of the following Oklahoma counties: Grady County, McClain County, Garvin County, Pontotoc County, Stephens County, Custer County, Murray County, Johnston County, Love County, Marshall County, Bryan County, and Coal County.

Constitutions of the Five Tribes of Oklahoma

Oklahoma is home to 39 federally recognized tribes, including five who lived in what is now Oklahoma before the United States was founded. Another five tribes that relocated here under the Indian Removal Act of  1830 were, at that time, called the Five Civilized Tribes. Today that group of tribes is more often called the Five Tribes of Oklahoma. These are the constitutions of the five tribes.

The Seminole Nation of Oklahoma – Tribal Constitution

Constitution of the Chickasaw Nation

Constitution of the  Choctaw Nation of Oklahoma

Muskogee Constitution

Constitution of the Cherokee Nation

McGirt Decision Videos

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