Tribal and State Felonies Are Not All the Same
Video Transcribed: Possession of paraphernalia is a felony under the Muskogee Creek Nation Tribal Court. That’s right. I’m Tulsa criminal attorney, James Wirth. We’re about to talk about possession of paraphernalia in the tribal court.
This is all very relevant because of the recent Supreme Court, United States Supreme Court decision of McGirt V Oklahoma in June of 2020 that said that the Muskogee Creek Nation original boundaries from 1833, 1866 were never disestablished through statehood.
Which means that a lot of Northeast Oklahoma, including most of Tulsa County and all of many of the surrounding counties, is all part of the Muskogee Creek Tribal Reservation, which means that native Americans, whether they’re members of that tribe or any other tribe, are going to be subject to criminal filings against them for crimes that occur in that area.
Because of that, we’re looking at the differences between state law and tribal law now that we’re about to see a lot more cases in tribal court, as we’re seeing a lot of cases thrown out of state court. One of the more interesting ones is possession of drug paraphernalia.
In state court, that’s always a misdemeanor but it looks like in Muskogee Creek Nation tribal law it is a felony so let’s see what it says. You’re going to want to go to Title 14, Section 2-517, and that is the statute for possession or trafficking and drug paraphernalia. It says that the crime of possessing drug paraphernalia occurs when, and then it has many different sections that all fall within that statute.
Some of the more interesting ones for our purposes is somebody who uses or possesses with intent to use drug paraphernalia to cultivate, manufacture, store, conceal or introduce in any matter into the human body a controlled and dangerous substance.
We know from other parts of the code that a controlled and dangerous substance, it includes marijuana, it’s included on Schedule One, and possession of that is a felony under the tribal code as well.
Anything that could be used to cultivate marijuana or other drugs or anything that could be used to introduce it into the human body, those things are going to be considered paraphernalia. What is the punishment for that?
It says any person convicted of violating the foregoing provisions shall be guilty of a felony. In another part of the tribal code it lists the range of punishment for felonies as up to three years imprisonment. First offense, simple possession of paraphernalia under Muskogee Creek Nation Tribal Code is a felony with up to three years imprisonment. That’s very different than state law.
It’s only applicable to crimes that occur under the Muskogee Creek Reservation, which is way bigger than we thought it was, and people that can be prosecuted, which means essentially tribal members. It doesn’t have to be that tribe, can be any tribe, so native Americans.
It’s kind of interesting to see the dichotomy that now, if you’re in Tulsa and you are not a native American, then the maximum punishment for paraphernalia is going to be one year. It’s going to be one year imprisonment under state law and it’s going to be a misdemeanor.
Also, you could be protected by your medical marijuana card, which is under state law. However, if you’re a native American, you’re not subject to state law. You’re going to be subject to either federal law, if it’s a major crime, or the Muskogee Creek Nation Tribal Code.
You’re looking at a felony but somebody who’s not a tribal member is looking at a misdemeanor. That’s one of these strange occurrences that we get out of the McGirt decision.
If you’re facing this or have additional questions about some of the differences under tribal code and state code, you’re going to want to talk to an attorney about your specific circumstances. Talk to me or a McGirt attorney in my Tulsa law office, go to makelaweasy.com.