Tulsa Attorney BlogCan Oklahoma Prosecute Non-Indians for Crimes Against Indians in Indian Country?

Muscogee (Creek) Nation Was Never Disestablished

Video Transcribed: Can the state of Oklahoma prosecute non-Indians for crimes committed against Indians in Indian country? I’m McGirt attorney, James Wirth, and that’s the question that we have today is as it relates to the McGirt case from the United States Supreme Court, which ruled that the Muscogee (Creek) Nation was never disestablished, and therefore the State lacks jurisdiction to prosecute Indians.

Does that also apply to non-Indians who are alleged to have committed crimes against Indians? And the answer is it does apply and the State of Oklahoma does not have jurisdiction over that. And, there are Oklahoma cases that reference that going back as far as 1989, in State v Clint, that’s a 1989 OKCR75, and then that is cited again by the Oklahoma Court of Criminal Appeals in 1992, in Cravatt v State, which is 1992 OKCR6.

And what the quote, in that case, is, essentially is, “The State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian country.” So, that’s been pretty consistent. That hasn’t changed.

What has changed is, what is Indian country? And it’s way more than we thought it was before. The sense of McGirt, we know that the Muscogee Creek Nation Reservation was never disestablished.

That’s now being applied to nation after nation. It’s been widely believed that it’s going to apply to the Five Civilized Nations, tribal nations, but it’s also applying to other tribes as well.

So, the rule that the State lacks jurisdiction to prosecute Indians and non-Indians accused of crimes against Indians in Indian country is not new. But what is new is where Indian country is and how broad it is here in Oklahoma.

However, what I should mention about these two Oklahoma cases is that both of these cases, although they talk about the State lacking jurisdiction to prosecute non-Indians committing crimes against Indians, each of these cases, the defendants actually were Indian.

So we call that dicta, and it’s not precedential authority, it’s persuasive authority only. So we’re still waiting in Oklahoma for a case that specifically cites and makes the ruling from a higher court that the State of Oklahoma lacks that jurisdiction.

And we may be getting that in the case of Bosse. And that’s a McLean County case, it’s currently up on appeal with Oklahoma Court of Criminal Appeals in a PDC 2019 124. And that’s where the defendant, in that case, is requesting post-conviction relief, requesting that his sentences are vacated because the State of Oklahoma lacked jurisdiction to charge him. And he, in that case, is not alleging he’s an Indian, he’s alleging that the victims of the crime are Indian.

So, this will likely be our first case in the State of Oklahoma that definitively rules outside of dicta, that the State of Oklahoma lacks jurisdiction in those cases. So you want to monitor that if that’s going to be relevant to you.

However, if it is relevant to you, you’re probably going to want to talk to an attorney about your specific circumstances. For that, you can go to makelaweasy.com to talk to somebody at my office. Again, that is makelaweasy.com.

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