Tulsa Attorney BlogMcGirt: Who Has Burden of Proof to Establish Tribal Membership or Lack Thereof?

If It’s an Issue of Subject Matter Jurisdiction, Which This Is, Then the Plaintiff Has to Decide That

Video Transcribed:  Who has the burden of proof for the defendant’s tribal membership or lack thereof for prosecution in state court? I’m Tulsa attorney, James Wirth. We’re, again, talking about procedurally how this is going after the McGirt precedent has been issued by the United States Supreme Court that says that the Muscogee Creek Nation was never disestablished and therefore state courts in that area cannot prosecute Indians for crimes that occurred or allegedly occurred in that area.

The question is, who has that burden of showing tribal membership or that the defendant is an Indian? Generally speaking, if it’s an issue of subject matter jurisdiction, which this is, then the plaintiff has to decide that. The state would have to demonstrate that.

Specifically, any crime that’s charged with a felony or putting on a preliminary hearing or whether it’s a trial, the state has to make sure in every case that they show the crime occurred within the jurisdiction of the county it’s being prosecuted in order to establish jurisdiction.

That’s something that every prosecutor has to do, and it’s a simple mistake that occasionally is made that can cause a case to be dismissed at preliminary hearing or even trial. It’s a prerequisite to the subject matter jurisdiction of the court.

Now we’re learning that for all of these courts that are within the boundaries of the Muscogee Creek Nation and the other five tribes as it gets expanded, that that’s an additional requirement.

But is the court going to hold it to that requirement? What are they saying the burden is? And we recently got a decision out from the Oklahoma Court of Criminal Appeals, and this is their view of it, at least at this time.

According to the Oklahoma Court of Criminal Appeals in this issued opinion in this particular case, it says, “Upon defendant’s presentation of a prima facie evidence as to legal status as an Indian and the location of the crime and entry in country, the burden shifts to the state to prove it has subject matter jurisdiction.”

So at least initially, according to the Oklahoma Court of Criminal Appeals, they’re putting the burden on the defendant to provide at least a minimum amount of evidence to show that the defendant is an Indian and that the crime occurred on the reservation land, and then it switches the burden to the state to prove otherwise.

It is difficult to prove a negative, so I can understand why the Oklahoma Court of Criminal Appeals has decided to do that this way. However, fundamentally, I do see issue where we have a right to remain silent.

We have due process rights. It’s difficult to say how we have a right to remain silent. But, yes, we’re also obligated to help the court determine that it doesn’t have jurisdiction.

So that is problematic, but at least as of now, that’s the only decision that we have on the issue from an appellate court. And the Oklahoma Court of Criminal Appeals says initially it’s on the defendant to provide at least some evidence, and then the burden shifts to the state to prove subject matter jurisdiction.

If you have a case under those circumstances, you have more questions about McGirt v Oklahoma, you want to talk to an attorney about that. If you want to talk to somebody in my office, you go to makelaweasy.com.

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