Tulsa Attorney BlogMcGirt Expungement: New Path to Sealing Criminal Records for Tribal Members

Most Oklahoma Statute of Limitations Are Three Years

 

Video Transcribed:  McGirt expungements. Is there a new path for tribal members to get their criminal history expunged? I’m Tulsa criminal attorney James Wirth, and we’re about to talk about that.

So the McGirt decision from the United States Supreme court greatly expanded the current understanding of what tribal reservation is in Northeast Oklahoma, so that most of Northeast Oklahoma is reservation land.

That divested the state court in prosecuting tribal members for crimes occurring in that territory and non-tribal members for crimes against tribal members or Indians. A lot of those cases are subject to be vacated, to go away, and a lot of the current cases are being dismissed and moved off to either tribal court or to federal court.

How does that affect somebody who’s a tribal member in Northeast Oklahoma who has criminal convictions in state court or state county court in Oklahoma over the past 100 years? Well, it may open the door to a new type of expungement, the McGirt expungement.

I did a video series regarding all these different avenues for expungement just a couple of months ago. Now it looks like there may be a brand new one to add in there. How does this work? Well, it has not been done yet. It has not been tried yet.

But the door’s definitely been opened, and we’re going to be pursuing these because what the law says is that under McGirt and other decisions previous, the state of Oklahoma lacked the authority to prosecute. It’s not just jurisdiction. It’s subject matter jurisdiction.

It’s well known in Oklahoma law and elsewhere that if the court lacks subject matter jurisdiction, then that conviction can be attacked at any time, and that it’s not voidable, meaning you have to go into court to void it. It means it is void. It’s as if it never existed.

What that means is that those convictions can be attacked collaterally, meaning you don’t have to go and file to vacate it in that court case and appeal that on however it needs to take. It means you can attack it in indifferent case, which could be an expungement case.

What we’re looking at doing is looking under the expungement code in Oklahoma in title 22, section 18, subsection five.

What that says is a person may qualify for an expungement if the person was arrested and no charges of any type, including charges for an offense different than that for which the person was originally arrested are filed, and the statute of limitations has expired, or the prosecuting agency has declined to file charges.

That applies to a set of person, somebody who’s arrested and no charges were ever filed. Once the statute of limitation passes, you can get it expunged.

Under the McGirt precedent where the state never had the authority in the first place to charge it and those things are void, not voidable, you can go into court and say, “Yes, I was prosecuted by the state. Yes, I was convicted.

Yes, I have that on my record, but you now have to consider those as already void. And you don’t need to void them or make them void.

You just need to acknowledge that they are void.” If that charge was void and that conviction was void, well now suddenly this subsection five of the expungement statute says now that the statute of limitation has passed or the prosecuting agency has indicated they will decline to file. Most Oklahoma statute of limitations are three years.

You can say that you’re eligible for an expungement under that. It’s a new type of expungement that potentially can be a big deal for tribal members wanting to get their records clean.

If you feel like you qualify under that, this may be applicable to you. You’re going to want to talk about your specific circumstances with an attorney. If you want to talk to somebody at my office, go to makelaweasy.com.

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