Tulsa Attorney BlogWhat About Indian Victims Under the McGirt Precedent?

Tribal Court Only Has Jurisdiction if It Is a Domestic Violence-Related Offense

Video Transcribed: What about Indian victims under the McGirt precedent? I’m Tulsa attorney, James Wirth and that’s the issue that we’re dealing with here. A little bit of background, United States Supreme Court decided the McGirt v Oklahoma case on July 9th of 2020 that said that the State of Oklahoma has been prosecuting Indians for a hundred years without the authority to do so. So now what we’re looking at is the circumstances of what happens when the victim and not the perpetrator is Native American.

So under those circumstances, the Federal Court does have jurisdiction, the State Court has no jurisdiction and the Tribal Court only has jurisdiction if it is a domestic violence-related offense. So the concern here is that those crimes may actually fall through the cracks, those defendants may not be charged or re prosecuted.

And here’s why, so the federal courts are very overwhelmed at the moment they’re taking over major criminal prosecution for all Native Americans charged for crimes that occur in the tribal boundaries, which is now vast, as well as crimes against Native Americans during that time period. So they’re focused on the major crimes.

And we had a quote for the chief prosecutor at the Northern District, which is in Tulsa, that they’ve had three homicide prosecutions last 20 years and now they’ve had about 20 in the last six weeks. So they are overwhelmed and they have to prioritize those more violent crimes.

So, for the lower crimes that they don’t typically deal with at all, where the State doesn’t have jurisdiction because it was committed against a tribal member, and the tribe doesn’t have jurisdiction because it was committed by a non-native member, it can only be prosecuted in Federal Court and Federal Court is too busy to prosecute it.

So that’s kind of the situation we have right now and it’s an issue, and obviously, the federal prosecutors are trying to beef up what they are capable of doing, and the courts are going to have to do so as well.

But until they get everything handled smoothly, which is, I think probably going to be a very long time, they’ve got to prioritize those more serious major crimes where the public is at risk. And because of that, a lot of the lower-level offenses may fall through the cracks, and that’s the concern that we have at this time.

If you are a victim of a crime in those circumstances or defendant of a crime, under those circumstances, you may want to talk to an attorney about your specifics. If you want to talk to somebody at my office, you go to makelaweasy.com.

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