Tulsa Attorney BlogDoes the McGirt Precedent Apply to the Cherokee Nation?

Muscogee Creek Nation Tribal Boundaries Were Never Disestablished

Video Transcribed:  Does the McGirt precedent apply to the Cherokee Nation? I’m Tulsa criminal defense attorney James Wirth. We’re talking about the McGirt decision from the United States Supreme Court and how it applies to the Cherokee Nation. So obviously, initially, the McGirt v Oklahoma decision from July 9th of 2020 decided the Muscogee Creek Nation historic tribal boundaries were never disestablished. So a lot of Northeast Oklahoma is still part of that reservation and that takes away jurisdiction from the state so that the state never had jurisdiction to prosecute Indians in that territory.

But does that also apply to the Cherokee Nation? Well, the general belief is that it’s going to apply to the five civilized tribes, which includes the Cherokee Nation because they were in a similar situation as the Muscogee Creek Nation at the time that these treaties were done and the terms of the treaties and the statehood of Oklahoma.

But the United States Supreme Court doesn’t specifically apply to the Cherokee Nation. It’s just that that precedent when applied to the facts of the Cherokee Nation, which are very similar to the Muscogee Creek Nation, will likely result in the same decision being made.

So where are we in that process? Well, there’s a case. Travis Hogner v. the state of Oklahoma, it’s an appeal to the Oklahoma Court of Criminal Appeals. And after McGirt was decided, that case was remanded back to the trial court in Craig County, to have a hearing specific to the McGirt issues, to determine whether Hogner was a tribal member, whether he had some quantum of Indian blood, and whether that area, that territory of the Cherokee Nation was ever disestablished.

And that hearing occurred on September 21st of 2020. And on September 30th of 2020, the court rendered a decision at the trial level that said, “Yes, he’s an Indian. And no, the Cherokee Nation was never disestablished, just like Muscogee Creek was never just disestablished.”

So now that is been that order, that remand hearing information and determination is back with the Oklahoma Court of Criminal Appeals. And we’re waiting on a decision from the Oklahoma Court of Criminal Appeals to officially apply McGirt precedent to the Cherokee Nation. So it’s already been applied at the trial level, but we’re still waiting on the Oklahoma Court of Criminal Appeals to also apply it.

Now because of that, some judges, particularly in Tulsa County, we’ve got a judge that just passed, I think, about 123 cases and keeps passing them rather than deciding whether these cases need to be dismissed because a portion of the Cherokee nation is in Tulsa County and these 123 cases approximately were on the Cherokee Nation side of Tulsa County.

And rather than rule on those issues and have those hearings themselves, it is instead of passing those for determination from the Oklahoma Court of Criminal Appeals and other cases like the Hogner case.

Now, personally, I’m not so sure that that is an appropriate thing to do. The trial court has more than enough information to make these rulings itself, just like the trial court did in the Craig County case of Hogner. But rather than do that same thing many, many times over for the judicial economy, I guess they’re continuing those, so they get a decision back and it’s easier to apply that more specific rule.

But I think pretty much everybody knows where this is going. The Cherokee Nation is going to be treated the same as the Muscogee Creek Nation. And we’re wasting a lot of time here, which wouldn’t be too much of a deal, except some of these people are presently facing criminal charges and are being held by the state of Oklahoma in Tulsa County and other counties on charges that they have no subject matter jurisdiction to actually file. So with no authority to file the charges and to hold them, it’s really no different than them kidnapping them.

So I don’t know that it’s appropriate to wait. Although normally, it would for judicial efficiency, given the fact that there’s every reason to believe that the court doesn’t have jurisdiction. It’s not like, “Oh, we’re just going to lock them up until we find out for sure.” So I’ve got some concerns with that.

We’re fighting these cases. But that’s what the current status is, is that some of these judges are continuing them, waiting for a decision in the Hogner case and other cases from the Oklahoma Court of Criminal Appeals. If you’re in that scenario or you’ve got more questions specific to this, you’re going to want to have a consult with an attorney that can be more in-depth and personalized to your situation. If you want to talk to somebody in my office, you can go to makelaweasy.com.

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