The Muskogee Creek Reservation Was Never Disestablished
Video Transcribed: McGirt and the right to vote. I’m Tulsa criminal attorney James Wirth, and I’m talking about how the McGirt decision may affect people’s rights to vote. So, first off, a little bit of background, the McGirt v Oklahoma decision, that’s the United States Supreme court decision that held on July 9th of 2020 that the Muskogee Creek Reservation was never disestablished. Meaning that most of Tulsa County and many of the surrounding counties are actually reservation land, and subject to some extent to the jurisdiction of the Muskogee Creek tribe.
What that means, practically speaking, we’re seeing it happen in many, many cases is that the state courts have lacked jurisdiction to charge tribal members, Indians, with criminal offenses that occurred on the reservation. So that’s always been the case. The only difference now is the reservation is way larger than we thought it has been for the last hundred years, which has subjected many cases to being dismissed.
And the courts are looking at hundreds of old cases to see if they may be vacated. The judgments that are vacated. Now, because this is a subject matter jurisdiction issue, meaning that if you’re Native American and the crime allegedly occurred on a reservation, the state court lacked subject matter jurisdiction, then there’s an excellent argument that that judgment is not only voidable and can be vacated, but that it’s actually void.
Meaning that it’s void ab initio, void from the beginning so that it can be attacked not only directly, but also collaterally through another matter. What that means is, is that there’s a good argument that those convictions and sentences are already void.
They were never valid, and therefore there’s an argument that they could not prevent you from voting based on that. Now the state attorney general is fighting a lot of these cases, and they’re making a lot of arguments that I think they’re going to lose one by one, but they’re still putting up that fight.
So there’s definitely some gray here. I think when it all goes through, odds are that these convictions will be found to be not just voidable, but void. Meaning that the courts could act as if they never occurred, meaning that they couldn’t prevent you to vote based on that.
So because of that gray area, you got to be careful. If you have a felony conviction that falls under McGirt, where you may be entitled to relief, you may be able to vote now, but it’s a gray issue, so you want to be careful because of it. If you’ve got specific questions on that, you’re going to want to talk to an attorney. If you want to talk to someone in my office, you can go to makelaweasy.com.