Tulsa Attorney BlogDoes McGirt Apply to the Kiowa-Comanche-Apache (KCA) Reservation?

Muscogee Creek Reservation Was Never Disestablished

Video Transcribed: Does the McGirt precedent apply to the Kiowa-Comanche-Apache Tribe? I’m McGirt attorney James Wirth, and that’s the question that we’re attempting to answer today is how expansive is the McGirt decision and does it specifically apply to the Kiowa-Comanche-Apache Tribal Reservation?

So first off a little bit of history on this issue, the McGirt case was decided by the United States Supreme Court on July 9th of 2020. And therein it decided that the Muscogee Creek Reservation was never disestablished.

And therefore, all of that is still an Indian Country where the state lacks jurisdiction to prosecute Indians. This means that perhaps thousands of convictions and pending cases are subject to dismissal, vacation, and perhaps for some, re-prosecution. But does that go beyond that tribe? Well, it generally considers that it goes beyond that to at least the five civilized tribes that were in very similar circumstances with regards to their treaties.

But beyond that, there’s more of a question, but we’re going to find the answer to that because there are pending cases looking to address that issue specific to the Kiowa-Comanche-Apache Reservation.

So a little bit of history on that one, that tribal reservation dates back to October 21st of 1867, where the first and the second Medicine Lodge Creek treaties were entered in and that established those tribal reservation boundaries.

So then the question becomes, was that ever disestablished? And what, in the McGirt precedent, as well as prior precedents tell us, is that it was not disestablished unless there was clear congressional intent to disestablish them.

So was there clear congressional intent here? That’s what has to be decided. So we’ve got two pending cases on that issue. So the first one, Joshua Codynah, that case is actually pending in Comanche County District Court. He entered a blind plea to murder charges, as well as other things, and then he filed to try to withdraw that plea.

And that went to the Oklahoma Court of Criminal Appeals. And he was asserting that the court lacked jurisdiction to prosecute him because the tribal reservation was never disestablished. On October 29th of 2020, the Oklahoma Court of Criminal Appeals remanded it for an evidentiary hearing with the trial court to determine whether he’s an Indian and whether the crime occurred in Indian Country, whether that’s on reservation land.

So the Comanche County Court set that for hearing on November 24th, but then it was subsequently stricken to be reset. So it’s not clear at this point why it was stricken, whether it was related to COVID issues, whether there may be a stipulation coming forward.

But at this point, the court docket indicates that although it was set on the 24th, the hearing did not happen on the 24th. It was stricken to be reset. Once that is reset either, or if stipulations are entered, we’ll have the decision on the facts on whether the defendant is an Indian and whether the tribe was ever disestablished by Congress.

Then that goes back for the Oklahoma Court of Criminal Appeals to finish that appeal, which could result in the vacating of that conviction and then perhaps re-prosecution in federal court.

Or if they’re not going to re-prosecute, then that person could go free. For the charge of murder that was relatively recently, it’s very likely it’ll be re-prosecuted in federal court, but he’ll get another bite of the apple to present his defense.

So that’s a case that we’re going to be following because that’ll make it definitive once the Oklahoma Court of Criminal Appeals decides it, that is precedent on all of the other trial criminal courts of the state. So that’ll make it definitive at that point.

There’s actually another case pending as well. That’s Charles Kill first. And he had filed a late appeal to the Oklahoma Court of Criminal Appeals. And he brought up this issue of lack of jurisdiction based on McGirt very late in the process.

So he could be facing some procedural hurdles for not bringing it up earlier, but at this point, the court didn’t sound like it was going to dismiss it on those grounds because that case was also sent back to the trial court where we’re waiting for a decision as to those issues as well.

So we’ll be following those two cases to determine whether it is official that those reservations were never disestablished. And that perhaps hundreds, if not thousands of convictions within that territory are going to be subject to potential reversal, dismissal, vacating of those judgments.

So where is the Kiowa-Comanche-Apache Tribe? Well, it encompasses either part or all of the following counties in Oklahoma, Caddo County, Comanche County, Cotton County, Grady County, Kiowa County, Tillman County, and Washita County.

So if you are Native American and you have a case in those counties, then you’re going to want to check to see if this decision may be applicable to you. You’re going to want to talk to an attorney about your specific circumstances. So for that, if you want to talk to somebody at my office, you can go to makelaweasy.com.

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