Tulsa Attorney BlogMcGirt and the Cascading Impact of Its Precedent

Due to Supreme Court Decision McGirt Could Not Be Charged in State Court With His Crimes


Video Transcribed:  McGirt and the Cascading Impact of its Precedent. I’m Tulsa attorney James Wirth, and we’re about to talk about some of the consequences of the McGirt decision. So McGirt is the United States Supreme court case of July 9th, 2020, that decided that the Muscogee Creek Reservation had never been disestablished when Oklahoma became a state.

And because of that, McGirt could not be charged in state court with his crimes. He had to be charged in federal court. And because of that, his conviction was overturned, vacated, and now he’s potentially going to be charged in federal court. Some people like to limit the impact of this case and say that it’s not going to have much of an impact beyond things, but I want to talk about the cascading effect of it.

So first we have to talk about the stare decisis and precedent and what it is, and essentially under precedent, under the law and the way precedent works, anything that is not directly applicable to the case that’s decided is called dicta. So it isn’t actually precedent except in similar cases. And in the McGirt case, we’re talking about a criminal case.

And we’re talking about somebody, they committed a major crime, and we’re talking about somebody that committed it on the old boundaries or inside the old boundaries of the Muscogee Creek Nation.

So some people say that the impact of this precedent is technically relegated to those three things and that anything outside of that is technically not precedent and may not have an impact. And those things are true. Anything outside of that is technically dicta and it is not binding precedent. But it’s not going to matter.

So first to go on, let’s talk about each one of those things individually. So let’s talk about the jurisdiction. So this case only deals with the Muscogee Creek Nation, right? So I’ve got that here in green.

So that’s the territory that includes most of Tulsa, all of Okmulgee, surrounding counties. We’re talking about McIntosh, Creek County, Wagoner County, Muskogee County, Okfuskee County, McIntosh County. The green space there, that’s all that we’re talking about.

So the case technically for precedent purposes is limited here, but all of the five civilized tribes there, Cherokee tribe, the Choctaw, Chickasaw, Seminole, they all had very similar treaties, 1866 treaties. And they were all similarly treated when Oklahoma became a state.

So although the McGirt decision doesn’t directly apply precedent, if you apply the same rules that were applied in McGirt to the other tribes, it’s going to show that they were not disestablished either. So now suddenly we’ve gone from that green area to most of Northeast Oklahoma for all the colored areas here. And although it’s not binding precedent, it’s going to be next to impossible to say they should be treated differently.

So the other way people try to limit it as though it only applies to the Major Crime Act because in the McGirt case, it was dealing with the Major Crimes Act. Well, that’s true. Anything outside of that is dicta. But once you say that that reservation was never disestablished, well now suddenly in other cases, we don’t just apply the Major Crimes Act.

We also apply the General Crimes Act. So now it’s going to apply to all criminal prosecutions of Native Americans or Indians against victims who are Indian or victims that are not Indians in that territory. So it gets expanded there so that’s another part of the cascade.

And then we started talking about well, if the Muscogee Creek Nation was never disestablished and all these other five civilized tribes’ reservations were never disestablished, well that’s not just going to apply to criminal cases. That fact is going to apply to all kinds of cases.

So we look at deprived child CPS cases where there’s federal law that gives exclusive jurisdiction to tribes under circumstances there. And then we look at Oklahoma’s marijuana laws and regulations, which have business owners in the cannabis industry affirm under oath that their business is not on tribal land.

And then we have taxation authority, regulation authority, oil industry. And although the McGirt case isn’t direct binding precedent on those, the decisions that it made because it’s the high court, the United States Supreme Court, if it says that the Muscogee Creek nation was not disestablished for this purpose, there’s really no way to say it was disestablished for one purpose and not another. So it starts to affect all of these other things.

And then some people think, Oh, well, this can be resolved through a compact with the state and the tribes that will allow the state to prosecute these types of cases in state court like they always have. Well, they don’t really have the authority to do that. It’s got to be done through the United States Congress.

And even then, if you have the Congress that wants to fix these, they can do so prospectively, but there’s not really much they can do that fixes the last hundred years where the state was prosecuting cases without subject matter jurisdiction.

And then some people say, well these might be limited because so much time has gone by, they can’t go file to vacate those now because all these years have gone by. Well, as Judge noted in his opinion in Murphy, ‘In Oklahoma issues of subject matter jurisdiction are never waived and can therefore be raised on collateral appeal.’

Because some people were trying to minimize this and say, well, this person has already appealed and they’ve already done their post conviction relief. So it’s too late. They don’t have another opportunity to appeal.

Well, based on clear Oklahoma law in history where we’re talking about subject matter jurisdiction, where we’re talking about the state never had the authority to prosecute them, that can never be waived so you can’t say that it’s too late.

It can be attacked in a collateral appeal, meaning it doesn’t have to be a direct appeal. You could attack it in any other matter. So based on all the other laws and precedent that we have, these limitations they’re trying to put on there just don’t look viable. And although things can be fixed prospectively, that’s going to require an act of Congress. And with the divisions that we have now in Congress, it’s unlikely that’s going to happen anytime soon.

Unless there’s an agreement reached recommending legislation from the state of Oklahoma, as well as the tribes and based on the recent resending of an agreement by the Muscogee Creek Nation and the Seminole Nation with the principal and agreement that the AG of Oklahoma had sent out, it doesn’t look like that’s happening anytime soon either.

So we’re likely to continue to see cascading of effects from the McGirt precedent, as it’s expanded to other areas based on its application of the disestablishment to other laws that have been in place for a long time, other judicial decisions that have been in place for a long time.

So if you’re caught up in this scenario or want to know how a certain thing applies to your specific circumstances. You’re going to want to talk to an attorney. So if you want to talk to somebody at my office, you can go to makelaweasy.com.


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