Tulsa Attorney BlogU.S. Supreme Court’s Indian Country Ruling Sets Stage for Mass Expungement of Criminal Convictions

Historic Decision Overturns State Jurisdiction

The U.S. Supreme Court’s July 9 decision in McGirt v. Oklahoma set in motion legal controversies that state, tribal and federal authorities might not resolve for years or even decades to come.  Among the most immediate controversies that may emerge is whether tribal members convicted in Oklahoma courts of crimes on tribal jurisdictions now qualify for expungement of those convictions.

Tulsa expungement attorney James Wirth believes tribal defendants charged in Oklahoma courts should qualify for immediate expungement of their convictions under Oklahoma’s “Section 18” expungement laws. (Okla. Stat. tit. 22 § 22-18)

In McGirt v Oklahoma, the court held that parts of 11 counties within the 1889 boundaries of the Creek Nation remain “Indian Country” even after Creek members were encouraged in the early 20th Century to sell allotments of private land within their reservation. The finding was for the purposes of the Major Crimes Act, but future cases will most likely ask courts to apply the “Indian Country” finding to other areas of law.

The Major Crimes Act of 1885 assigned to federal courts jurisdiction for prosecuting charges of murder, manslaughter, rape, assault with intent to kill, arson, burglary and larceny that occurred on a tribal reservation. Congress later added kidnapping, maiming, sexual abuse, incest, felony child abuse, felony assault, assault against children and robbery.

Since Oklahoma was founded in 1907, the State nonetheless charged tribal member with those “major crimes” in state court. McGirt ended that practice and left lower courts to sort out the consequences.

“It’s a question of subject matter jurisdiction,” Wirth said. “Without subject matter jurisdiction, the charges are not voidable, they are just void.”

In Oklahoma, “Section 18” expungement allows a person to ask courts to remove records of criminal convictions if a person was arrested never charged with a crime. The state could never lawfully charge tribal members of state crimes so those unlawful charges should be void, Wirth said.

The Section 18 provision that allows expungement of records when a person was arrested and not charged precludes expungement when any other related charges are filed. For that reason, expungement would not yet be a likely option for defendants in custody now on invalid state convictions but likely to be charged in federal court after McGirt for the same offense, Wirth said.

Those most likely to qualify for expungement after McGirt are tribal members who completed sentences meted out by Oklahoma courts for charges that should have been prosecuted by the tribe under tribal laws or federally under the Major Crimes Act, Wirth said.

Far Reaching Impact

The potential for mass expungement of cases that, if not for McGirt, were credible convictions in state court is only one of several impacts likely to follow the historic Supreme Court decision.

So far, it is uncertain how inmates serving time after unlawful prosecutions under Oklahoma will be prosecuted in federal court. Wirth said defense attorneys might consider a habeas corpus petition to force the Dept. of Corrections to release those inmates unless or until federal charges are filed. He noted that resources of US attorneys, tribal attorneys and Oklahoma defense lawyers alike may be strained if a surge of hundreds or potentially thousands of cases are pushed into federal court to meet constitutional speedy trial requirements and before any statute of limitations periods lapse.

Other post-McGirt challenges include determining in which jurisdiction someone should be charged after a tribal member is arrested a crime. Police may need to identify at time of arrest the tribal membership of any parties involved, including victims.

The McGirt decision could also affect cases in Oklahoma’s Indian Country where the accused is not a tribal member and the victim is a tribal member. Those offenses would be prosecuted in federal district or magistrate courts. The now-defunct Violence Against Women Act provided for tribal prosecution of some non-tribal members when the tribe opted into a Special Domestic Violence Criminal Jurisdiction. Those provisions could be restored if Congress reauthorizes the Violence Against Women Act.

Beyond criminal law, the McGirt decision could affect tribes’ ability to tax non-members in reservation areas and business licensing, including for cannabis businesses, which are currently unlawful on all reservations within Oklahoma.

Although McGirt applied particularly to the Muscogee (Creek) Nation, the precedent will almost certainly be applied for all five Trail of Tears tribes, including Cherokee, Choctaw, Chickasaw and Seminole tribes. Other Oklahoma tribes whose former reservation boundaries were considered diminished by land sales to non-members may see McGirt as a means to restore their former tribal jurisdiction.

Free Consultation: Tulsa Expungement Attorney

For information about how McGirt v. Oklahoma will affect jurisprudence in general, or a particular matter that involves you or a family member, contact an Oklahoma expungement attorney Wirth Law Office at (918) 932-2800.


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