Tulsa Attorney BlogHow Does McGirt Affect Custody Cases for Tribal Members Living in Indian Country?

US Supreme Court Decided That Most of Northeast Oklahoma Is Actually Tribal Reservation Land

Video Transcribed: How does McGirt affect child custody cases for Indians residing in Indian country? I’m Tulsa attorney, James Wirth, and I’m answering frequently asked questions related to family law. And that’s the question that we have here.

So, McGirt, that is the recent United States Supreme Court decision that decided that most of Northeast Oklahoma is actually tribal reservation land and that was decided on July 9th of 2020 so there’s a lot of things that are occurring as we understand exactly how this is going to affect everything.

And the question here is, how is it going to affect a custody case? So we’re seeing a few effects. As far as adoption cases, as far as deprived child cases, where the kids have been taken away from the parents and taken into state custody by Child Protective Services.

As far as adoptions, guardianships, and deprivation, we are seeing some effects, but I believe this person is talking about more like a custody battle between parents. So that could be in a divorce or a legal separation or paternity case.

So where it’s just the parties fighting each other’s for custody, we have not seen that McGirt v Oklahoma is going to affect it at all. I don’t see that coming in the future. Obviously, lots of things are being sorted out, so anything could happen down the road, but thus far, I don’t see any indication that it’s going to change anything on that front related to custody in a divorce, in a paternity case, or in a legal separation.

So it’s just the way it was before, which is, if you are a tribal member and you’re residing within your tribe’s reservation, which for the Muscogee Creek Tribe is most of Tulsa County and a lot of the surrounding counties, then you can decide where you want to file. We have dual jurisdiction there. So both in state court and in tribal court.

So whoever’s the one that’s filing the action, whether you’re the one filing the divorce, legal separation, or paternity case, the person filing gets to decide which jurisdiction to file it in, as long as it’s appropriate in that jurisdiction.

So in this circumstance, if you are a member of the Muscogee Creek nation, you’re residing in a part of Tulsa County that is part of that historic reservation, then you can decide to file for divorce in Tulsa County District Court, or you could decide to file for divorce in the Muscogee Creek Nation Tribal Court.

If you are not the tribal member, but the other parent is and your child is a tribal member, then you still can make that determination to file in either state court or in tribal court. And that’s the way it was before the McGirt, and that’s the way that it is now.

So nothing has changed there as of yet. I’m not anticipating any changes in the future, but if you’re in this circumstance and want more of the specifics, contact an attorney that can give you specific advice. You can talk to somebody at my office by going to makelaweasy.com.

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