Tulsa Attorney BlogDoes McGirt Case Apply to the Citizen Potawatomi Nation in Oklahoma?

Muscogee (Creek) Tribal Reservation Was Never Disestablished

Video Transcribed: Does the McGirt precedent apply to the Citizens Potawatomi Nation reservation? I’m Mcgirt attorney James Wirth and that’s the issue for discussion today. A little bit of background on McGirt v Oklahoma. The United States Supreme Court decided the Murphy case on July 9th of 2020.

And in that decision, it found that the Muscogee (Creek) tribal reservation was never disestablished and therefore the original boundaries are still applicable and the state lacks jurisdiction to prosecute Indians for any crimes that occur on that land.

Well, the state had been prosecuting Indians for crimes that occurred on that land for a hundred years. So pending cases as well as old cases and convictions, people that are in custody, out of custody, all of them essentially is in jeopardy based on McGirt but does it apply beyond the boundaries of the Muscogee (Creek) tribal reservation? And for the purposes of this video, does it apply to the Citizen Potawatomi Nation? And there’s good reason to believe that it does.

First off it’s widely believed that it will apply to each of the Five Civilized Tribes because the rule that they’re going to follow is the same. And the facts are very similar for those tribes as far as the treaties that they entered and the circumstances in which they were entered when they were entered. But for tribes outside of the Five Nations, it’s very specific to their tribal history.

So why is there reason to believe that it may be that it was never just established as to the Citizen Potawatomi Nation? Well, because there’s already a case that’s going on that provides some indication of that. So first off, where is the Citizens Potawatomi Nation? It includes all or a portion of the following counties, Cleveland County and Potawatomi County.

All right. So that case that is pending and the reason why we think that that may not have been disestablished and we may have a lot more convictions and potential pending cases in state court that may be subject to dismissal or vacation is the case of Travis Bentley versus the State of Oklahoma.

So Travis was convicted of first-degree manslaughter and other offenses on July 29th of 2016. He appealed that conviction through post-conviction relief filed with the trial court that was denied, and then with the Oklahoma Court of Criminal Appeals.

And that was denied as well. But because Murphy had already been decided by the 10th circuit by this time, which gave an indication that the Muscogee (Creek) reservation was never disestablished.

Because that was on the radar at that point, he went ahead and appealed just like they did Murphy to the United States Supreme Court. And on the same day that the United States Supreme Court decided Murphy, it also decided this case.

But it didn’t have a detailed decision as it did. It didn’t do a detailed analysis. All it did is it vacated the decision denying the post-conviction relief with the Oklahoma Court of Criminal Appeals. And it remanded it for further hearings where it basically said, “Look, we’ve decided McGirt here.

We want you the Oklahoma Court of Criminal Appeals to look at McGirt and apply it to this case, to see if this gentleman is an Indian. And to see if this crime occurred in Indian country i.e. was the nation…” One second. There we go. The Citizen Potawatomi Nation that’s applicable in this case, was it ever disestablished?

So, that is happening at this point. So we already have an indication for the United States Supreme Court. They believe it may be applicable to this tribal nation. And now we are waiting for a decision from that.

It was November 25th of 2020 that the Oklahoma Court of Criminal Appeals remanded the case back down to the trial court. So first it went to the trial court, then appealed to the Oklahoma Court of Criminal Appeals that appealed to the United States Supreme Court, remanded down to the Oklahoma Court of Criminal Appeals.

And then on November 25th of 2020 remanded back down again to the trial court, which is in Cleveland County where that trial court has to decide those issues. So they’ll have an evidentiary hearing, which has not been set as of yet, it’s supposed to be set by order of the court within 60 days.

And at that hearing, there’ll be witnesses and testimony will then decide whether the defendant is an Indian and whether the tribal reservation was ever disestablished. And then from that point, after those findings are made, it goes back to the Oklahoma Court of Criminal Appeals that then will finish the decision in Travis’s case.

And then at that point, the highest criminal court in the State of Oklahoma will have decided whether the Citizen Potawatomi Nation reservation was ever disestablished. And then that will be used as precedent in all the other cases for that tribal reservation land, whether they be in Pottawatomie County or whether they be in Cleveland County, to those cases that are pending as well as old convictions.

So if you have been charged with a crime within those counties and you are Native American or the victim of the crime was Native American, or you have previously been convicted, under those circumstances, you’re going to want to talk to an attorney about your specifics. If you want to talk to somebody in my office, you can go to makelaweasy.com.

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