United States Supreme Court, July 9th, 2020, Decided the Muskogee Creek Reservation Was Never Disestablished When Oklahoma Became a State
Video Transcribed: Is McGirt going to effect deprived child cases in Oklahoma? I’m Tulsa criminal attorney James Wirth, and we’re about to talk about the McGirt effect on the juvenile court. Okay, so the McGirt case from the United States Supreme Court, July 9th, 2020, decided the Muskogee Creek Reservation was never disestablished when Oklahoma became a state.
The rules in that case are likely to apply to all the five civilized tribes, so we’re looking at this area that’s colored here of Oklahoma now being in Indian reservations of the various five civilized tribes. So how does that affect a deprived child case?
In a deprived child case, that is where the state of Oklahoma or another government entity has taken children out of the home, put them into state or governmental custody in order to protect them from parents who have deprived them, and Indian law has always been a big deal in deprived child cases in Oklahoma, even when CPS, Child Protective Services, DH, Department of Human Services, even when they start their investigations, that’s one of the first thing they’re looking into is are these Indian children? Is this family a member of a tribe?
Are they eligible to be a member of a tribe? Because if so, ICWA applies, Indian Child Welfare Act applies, and that brings in Federal Law that greatly changes how the cases are affected.
If it’s a non-Indian children, the standard of a termination of parental rights may be clear and convincing evidence. Whereas if it’s an Indian child, the standard to terminate parental rights goes up to beyond a reasonable doubt, and there’s a lot of things like that in the law, but if the family was living outside of tribal land, even if it’s tribal children, Indian children, it can still be in state court, so a lot of the cases in state court, a significant number of them involve Indian children, and that’s perfectly fine in state court, except now.
Now that McGirt says that most of Tulsa and actually, the greater part of the great majority of Northeast Oklahoma is reservation land, is Indian land, that divests state court of jurisdiction over all those cases, which means if you have a pending deprived child case now where it’s involving Indian children, it needs to be dismissed or transferred.
The court has lost jurisdiction, but it didn’t just lose jurisdiction now, it found out now that it never had jurisdiction, which brings up some great concerns because there’s been a lot of cases that have gone through the juvenile courts over the last 100 years, a lot of cases where those kids are still kids, and this could upset the decisions made in those.
If the court never had the authority to terminate parental rights, that decision is not just voidable, it’s void, and meanwhile, those kids may have been and adopted out to other families, and that adoption, not just voidable, it’s void. So how are these things going to be addressed and fixed?
How are they going to be attacked? That’s all things that are happening right now and that we’re going to find out over the coming not just weeks and months, but years when these things are litigated, because puts some people in a very precarious position, and it’s difficult to see a way for the state or the government to fix this, to somehow write the fact they never had jurisdiction in the first place.
So, there’s a lot of questions right now, not as many answers, but if you’re dealing with this scenario, have questions about it for a friend or family member, you’re going to want to talk to an attorney about your specific circumstances. If you want to talk to somebody at my office go to makelaweasy.com.