This Affects Creek County, All of Okmulgee County, Muscogee County, Wagner, Mcintosh, Okfuskee, and More
Video Transcribed: How would the McGirt case affect you? I’m Tulsa attorney, James Wirth and if you don’t know how it’s going to affect you, you’re about to find out. So the United States Supreme Court, July 9th, 2020 entered a decision that is probably the most monumental decision ever to affect the state of Oklahoma. And it has to do with the Muscogee Creek tribe and its reservation. And essentially what it found is that the tribal reservation is way more expansive than previously thought.
And then in fact, it actually encompasses most of Northeast Oklahoma putting much of the state, including 1.8 million of its residents inside the jurisdictional boundaries of the Muscogee Creek Nation reservation. So let’s talk about that a little bit as far as the reservation. I’ve got the map put up here, take a look at that.
That gives you an idea on what this territory is. We’ve got a Tulsa here at the top. It takes most of Tulsa County, but north of around Admiral in the city of Tulsa is outside of it. But everything below that to the sides is included.
And it also includes large parts of Creek County, all of Okmulgee County, Muscogee County, Wagner, McIntosh, Okfuskee, and more. Those are all within the historic boundaries of the Muscogee Creek Nation reservation established in 1833.
And the question that came before the court was whether it’s still in existence and that became necessary in the case of McGirt. Okay. So going back to 1833, this is given to the Muscogee Creek tribe as their separate land allotment for their reservation.
And then once statehood came later and through a period of allotment, a lot of the land was sold off and Europeans came in and we built cities and much of the area has been built up. And we have, according to the United States Supreme Court, we forgot about that reservation, but that didn’t make it go away. So why it is an issue is because in McGirt’s case, he was convicted in state court of some horrendous crimes against children and got an exact amount of jail time.
And he appealed that conviction by saying, “No, I’m a native American, I’m a member of a tribe and the crime you’re alleging I committed and I was convicted of committing occurred in tribal territory because the Muscogee Creek reservation was never properly disestablished by Congress.”
So that’s the issue that came up in which the United States Supreme Court, they issued their decision today and they agreed with the tribes and they agreed with McGirt and they found that the historical boundaries of the Muscogee Creek reservation were never disestablished, therefore they are still in effect. So how does that affect you? Well, we’re going to be finding out over the coming years and perhaps decades.
But one thing we know for sure is it means that state courts, meaning district attorney’s offices, Tulsa County, and these other counties, they do not have the authority to charge tribal members, whether it’s a member of the Muscogee Creek Nation, or any other of the 500+ tribes in the United States, any of them if the crime occurred in the jurisdiction of the reservation, and it was alleged to have been committed by a tribal member, the state can’t charge it. They can’t throw people in jail for that. It goes either to the federal government to charge if it’s a major crime or felony, or it goes to the tribal court to charge if it is a misdemeanor.
So the court just held that yes, this crime occurred within the expanded boundaries of the Muscogee Creek reservation. It was not disestablished and therefore the state court lacked jurisdiction, which means his conviction has to be thrown out. And then the federal government may have an opportunity to retry him. But this decision is going to have ramifications way beyond that individual defendant.
Because it says that this pretty much to any defendant who is in state court based on a crime that occurred in this territory, who is a tribal member. That could be hundreds or thousands of cases that arguably are now void, and that are either automatically going to be thrown out, or we’re going to have people filing to have them thrown out.
Because it’s a subject matter jurisdiction issue, arguably, that can never be waived. It can never be issued too late. So a lot of criminal convictions may be in jeopardy based on this. And there’s going to be a lot of attorneys, including my office that’s going to be working through these issues.
But it’s not even just relegated to criminal cases. One other area is the cannabis businesses. So Oklahoma has allowed and passed statutes to allow for dispensaries and medical marijuana in general. But those laws say specifically that you can’t operate on tribal territory. Now most of Northeast Oklahoma is tribal territory. How’s that going to affect the medical marijuana community and business?
Additionally, if it’s expanded, the tribe has jurisdiction all the way to these counties and these areas. That most likely means that tribal law is going to be applicable there. Well, the tribe, this tribe in particular has not legalized marijuana, has not provided for medical marijuana. So marijuana in those areas could be illegal again. And then also taxing. Okay. So if this is tribal territory, does that mean that sales tax can be charged by the tribe in these areas?
There’s good arguments that that could be the case. What about real property? Who’s that going to be paid to now? What about income taxes potentially? There’s all kinds of taxation issues, zoning issues.
What control is the tribe going to have because of this? What revenues are they going to have? How’s it going to affect the state? Then we’ve got the tribe that’s going to have to build up to be prepared to prosecute all of these misdemeanors going forward. We’re going to have the federal court system that has to build up to have prosecutors for those additional crimes that are now federal crimes.
And then of course, that also goes with public defenders. It’s going to take cases away from the state, from the district attorneys. There’s going to be a lot of changes that come from this. Nobody at this point is going to anticipate exactly how it goes, but things are already beginning for criminal cases and there’s going to be issues looking into elsewhere. So you’re going to want to stay abreast on these issues and how it affects you.
If you’ve got any questions about this, if you’ve got convictions you have questions about. If you have business that it may affect your operations, any of those, you can contact my office. We’ve got multiple lawyers reviewing these issues to decide how it’s going to affect our clients and what needs to be done to protect rights. Contact my office by going to makelaweasy.com.