Tulsa Attorney BlogDoes McGirt Apply to the Choctaw Nation? Has the Choctaw Reservation Been Disestablished?

Choctaw Nation Is One of the Five Civilized Tribes

Video Transcribed: Does the McGirt precedent apply to the Choctaw Nation? I’m Tulsa Criminal attorney, James Wirth, and that’s what we’re about to discuss.

A little bit of background on McGirt v Oklahoma. The United States Supreme court decision decided on July 9th of 2020 that the Muscogee Creek Reservation was never disestablished, and, therefore, the original reservation boundaries are still in existence for defining what Indian country is.

In that territory, the state of Oklahoma lacks subject matter jurisdiction to prosecute Indians. That is putting a lot of convictions as well as pending cases in jeopardy. We’re seeing a lot of those thrown out. But the question at this point is, how wide does that precedent have on other tribes?

Does it apply to the Choctaw Nation? Well, a couple of things. One, the Choctaw Nation is one of the five civilized tribes. It’s in very similar circumstances as the Muscogee Creek Nation when these treaties were put in place. If we’re applying the same rule that is in McGirt, two facts that are also very similar, it’s highly likely that the result will be the same.

We do expect that the Choctaw Nation Reservation will be found to have not been disestablished and that that territory is still reservation land, meaning that Indians cannot be prosecuted for crimes that allegedly occurred there in state court. It has to go in either federal court or tribal court, depending on the offense.

All right. When are we going to know, and how are we going to know? If somebody is facing charges in one of those counties… Let’s go over what counties those are. That’s all or a portion of Cole County, Hughes County, Haskell County, Latimer County, Pittsburg County, Atoka County, Le Flore County, Pushmataha County, McCurtain County, Choctaw County, and Bryan County.

So if you are being charged with an offense in one of those counties, then you might look to find out where the historical border is. To find that map, you can actually go to my website. We’ve got a link to it on our McGirt page. You would go to WirthLawOffice.com. Then, on the left-hand side, there is a link to McGirt v Oklahoma. Then, on that page, we’ve got all the different five civilized tribes along with links to a Google map that shows where those lines are.

If you’re being charged or prosecuted for a crime that occurred in the boundaries of that tribe, then this is going to be very important to you. You’re going to want to file a motion to dismiss for want of jurisdiction. It’s incumbent on the trial judge, at that point, to apply the precedent in McGirt to see if it applies to the facts of the Choctaw Tribe, to see if it has jurisdiction.

A lot of courts are holding off on doing that because they’re waiting for a higher court to make that determination before the trial court does it. That arguably is done for judicial expedience rather than the trial court deciding the same thing a hundred times. They’re going to wait for the appellate court to decide it and then apply it to those a hundred cases. There’s already a case pending on that. So got a little bit of information on that for the Choctaw Nation.

There’s the case of Keith Davis that’s being prosecuted. That is actually in Latimer County, part of the historic reservation for the Choctaw Nation. He was convicted back in 2005 of some horrible offenses, like forcible sodomy. Now, he is appealing through post-conviction relief, alleging the court lacked jurisdiction.

This case was actually… already has gone through the Oklahoma Court of Criminal Appeals. It was denied there, and it was appealed to the United States Supreme Court. Then, on the same day that the United States Supreme Court decided McGirt, it remanded this case back down to the Oklahoma Court of Criminal Appeals, so at least the United States Supreme Court believed that it may be in the same circumstances as McGirt.

Then, the Oklahoma Court of Criminal Appeals remanded it to the trial court in Latimer County to have an evidentiary hearing on whether the defendant is an Indian under federal law and whether it occurred in an Indian country, i.e., was the Choctaw Nation ever disestablished?

That hearing was actually scheduled for November 20th of 2020, but I have not seen what the results of that hearing are yet. In similar cases, we have found that there’s a number of them that we’re tracking, but this is the one that’s in Choctaw Nation Territory.

In that similar ones, for other tribes, the court has found that the defendant was a Native American and that the reservation was not disestablished, probably something similar here will happen.

That information will then go back to the Oklahoma Court of Criminal Appeals, and they will decide this appeal on whether to vacate this conviction or not.

Then, the person is potentially open to re-prosecution in federal court or tribal court, depending on the charge here. We’re looking, more federal court. But it’s also going to depend on the statute of limitations, which, here, doesn’t appear to be an issue, but in some cases, it may be.

So if you or someone you know is facing these sorts of circumstances, they’ve got a charge pending, they have a conviction, they want to look to see if McGirt is affecting them and the Choctaw Nation. You’re going to want to talk to an attorney about your specific circumstances. To contact and talk to somebody in my office, you can go to MakeLawEasy.com.

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