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

Seminole Nation Is One of the Five Civilized Tribes

Video Transcribed:  Does McGirt Apply to the Seminole Nation? Has Seminole Reservation Been Disestablished? I’m Tulsa attorney, James Wirth. And that is the issue that we are discussing today. A little bit of background.

The United States Supreme court decided McGirt v Oklahoma on July 9th of 2020, and in doing so it found that the Muskogee Creek tribal reservation was never disestablished by Congress and therefore is still in full force in effect, which means that for a large chunk of Northeast Oklahoma, the state of Oklahoma lacked jurisdiction to prosecute Indians for a crime occurring on that land.

We are still seeing the repercussions of that decision as certain cases are being dismissed from state court, certain convictions are being overturned and it’s being expanded outward. So the question is, is it going to expand to the Seminole nation?

And so first off on that, the Seminole nation is one of the five civilized tribes. So the circumstances of that nation and its treaties are very similar to the Muskogee Creek Nation. So it is very likely then that when the test from McGirt is applied to those similar facts, you’re likely to get a similar result. So I do anticipate that higher courts will be ruling that the Seminole nation was never disestablished and that’s going to affect a lot of convictions as well as pending cases.

But when is this going to happen? Well, there are already cases where if you’re a defendant being prosecuted, you’re Native American, and you’re in being charged in this county and a state court within the historic grounds of the Seminole nation reservation, then you’re going to want to file a motion to dismiss for want of jurisdiction. There’s a lot of those pending right now. And those trial courts, a lot of them are hesitant to make rulings on those until they get a higher court that tells them so.

It’s incumbent upon them to do so. It’s their job to apply these rules to the facts of the case, but perhaps for judicial expediency, rather than doing that a hundred different times, they’re kind of doing it in one case and then waiting for the Oklahoma Court of Criminal Appeals to either affirm or reverse that so that they have a higher court decision, and then they can apply that to all of their other pending cases. So what is that case? That would be the case of Joe Johnson V Oklahoma.

So I’m going to get into that in here just a moment. But before I do that, I do want to talk about where is the Seminole nation? Well, the Seminole nation, unlike some of the other five civilized tribes does not encompass a whole lot of different counties, it’s primarily is just in Seminole County.

If you want to know the exact borders to see if a particular event or a crime occurred within those boundaries, we have a map linked on our website on that. So you can go to wirthlawoffice.com. That’s Wirth spelled W-I-R-T-H. Go to wirthlawoffice.com. On the left-hand side, there’s a link for McGirt V Oklahoma. Under there you can look for whether this applies to the Seminole Nation, and I’ve got a link to a Google map that has those boundaries for the Seminole Nation.

All right, coming back to the case that we need to be watching if we’re concerned about Seminole County, that’s Joe Johnson V Oklahoma. So that’s an old case. He was charged with first-degree murder back in 1977 in Seminole County district court. And he has filed 11 post-conviction motions.

You’re only supposed to get one of those, but he has filed 11. And on the 11th one, the Oklahoma Court of Criminal Appeals, like the prior ones denied it. But because of the Murphy case being pending in the 10th circuit, deciding that the Muskogee Creek nation was not disestablished, they appealed that to the Oklahoma Court of Criminal Appeals, and then it went to the United States Supreme court waiting on that Murphy decision.

But as we know, Murphy ended up being decided mostly in McGirt. At the same time that McGirt was decided though, Joe Johnson’s case was also decided by the United States Supreme Court, but rather than making a definitive decision on this case and the Seminole nation, instead, it vacated the decision of the Oklahoma Court of Criminal Appeals and remanded it down for that court to have an opportunity to apply McGirt.

So there are already some indications from the United States Supreme Court that they believe that McGirt may be applicable here. They then sent it to the Oklahoma Court of Criminal Appeals. And as of November 23rd of 2020, the Oklahoma Court of Criminal Appeals has sent it back to the trial judge, back to the trial court in Seminole County to have a hearing within 60 days for factual findings.

That’s an evidentiary hearing where The court is required by the Oklahoma Court of Criminal Appeals to make factual findings as to whether the defendant is Indian under federal law, and whether the crime was committed or alleged to have been committed on reservation territory for the Seminole Nation.

So they have to decide whether the Seminole nation reservation was ever disestablished as part of that. So that’s supposed to be set within 60 days of November 23rd of 2020. Once those findings are made, it goes back to the court, the Oklahoma Court of Criminal Appeals to decide Joe Johnson’s fate. And then that’s where we get a ruling from a higher and appellate court.

It’s actually the highest court for criminal cases in the state of Oklahoma that says whether the Seminole nation has been disestablished or not. And then that precedent judges will feel freer and applying that precedent to all the other cases that are pending and as well as potential petitions to vacate old convictions.

This case is also interesting for something else, which is that the attorney general for the state of Oklahoma is arguing that for these old convictions, that they should not be able to be overturned even if the court lacks subject matter jurisdiction, which generally the rule is subject matter jurisdiction can always be attacked.

It can be can collaterally be attacked because it means the court never had the authority to do what it did, which means that it’s not voidable meaning you don’t have to ask the court to void it. It’s already void. So you just have to ask the court to recognize that it was already void. It was never proper and that because of that, it should be able to be attacked at any time.

But Oklahoma attorney general is arguing all sorts of procedural bars, such as you can only have one post-conviction relief. This was the 11th one. He shouldn’t be allowed at 11th one, or that it’s been too long and that he’s waived the issue, but not raising it in his first appeal in 1977, ’78, who knows back then, or that latches essentially too much time has gone by so it’d be unfair for the court to hear it now.

Well, if the Oklahoma Court of Criminal Appeals was considering applying any of those procedural bars, then it would make the evidentiary hearing that it ordered unnecessary. Because in this case, it’s an old case 1977, 11 post-conviction appeals. If you going to apply those procedural defenses, this would be the case to do it in. So we want to watch this case for that issue as well.

But if you have a case pending in a state court, based on a crime allegedly occurred within the historic boundaries of the Seminole nation, or if you have a prior conviction that you’re trying to get out from under that you may want an expungement on or all those things, then you’re going to want to talk to an attorney about your specific circumstances. For that you’re going to, if you want to talk to someone in my office, you can go to makelaweasy.com.

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