This Decision Will Be on an Individual Basis for the Various Tribes
Video Transcribed: Does the McGirt precedent apply to tribes outside of the five civilized tribes? I’m Oklahoma criminal defense attorney James Wirth and that is the topic that we’re discussing today is does the McGirt v Oklahoma precedent applies to more than just the five civilized tribes. So it’s widely considered that it will apply to the five civilized tribes and we’re waiting on getting decisions. There’s a number of cases that we’re following for each of those of the five civilized tribes to see where it is applied.
But is it going to apply beyond that? Well, there’s very good reason to believe that it will, and although tribes outside of the five civilized tribes may have very different factual histories to the treaties with the federal government so although the rule will be the same in McGirt to apply to it because the facts are different you could get a different result. And each tribe outside of the five really does have to be looked at individually.
But there is reason to believe that it could be expanded because the day that the United States Supreme Court decided McGirt it also decided a couple of other cases and remanded those down for new hearings based on the precedent in McGirt. Because prior to the decision in McGirt we already had Murphy that was decided in the 10th circuit and it basically decided the same issue that the Muskogee Creek reservation was never disestablished by Congress and that the state does not have jurisdiction and never had jurisdiction to properly prosecute Indians for crimes that occurred within that territory.
Well, once the Murphy decision by the 10th circuit came out it was published but it was not effective because they were appealing to the United States Supreme Court. But because of that, people became aware of it, us defense attorneys and lawyers were looking at it and we were seeing what cases it may be applicable to.
And at least a couple of other defendants that had prior convictions appealed those, made that an issue, were denied by the Oklahoma Court of Criminal Appeals and sent those cases to the United States Supreme Court as well.
For instance, Travis Bentley had his case and that ended up in the United States Supreme Court and that was for a crime that allegedly occurred in the Citizens Pottawatomie nation. And then similarly we had Patrick Terry whose case was appealed also up to the United States Supreme Court for a crime that occurred within the Ottawa nation.
So, when those cases went up to the United States Supreme Court rather than doing the full analysis in each of those like they did with McGirt and with Murphy from the 10th circuit they indicated apparently that it may be applicable, that the McGirt precedent may be applicable to those cases but rather than doing the full analysis they remanded them down at the Oklahoma Court of Criminal Appeals.
Then the Oklahoma court of criminal appeals is going to remand it down to the trial court to have an evidentiary hearing on the issue of whether they’re an Indian and whether those reservations were disestablished.
So, there’s very good reason to believe that we’ve got decisions that are coming that will be relevant to the Ottawa nation as well as will be relevant to the Citizens Pottawatomie nation. And then we also have cases, this didn’t go to the United States Supreme court but there are two cases pending that are requesting a determination on whether the Kiowa Comanche Apache tribal reservation was ever disestablished.
So, we’ll be following all of these cases and more for various territories within Oklahoma’s boundaries. If you want to check an update on those you can go to our website for that. You can go to wirthlawffice.com. That’s Wirth, W-I-R-T-H. On the left-hand side, we’ll have a link to McGirt V. Oklahoma. And then we’ve got sections on that page that covers all these different territories.
So, back to the original question is McGirt going to apply to tribes beyond the five civilized tribes? The answer is it probably will but it’s going to be on an individual basis for the various tribes and we’ll be following those in the future. If you have a case or a conviction or somebody that you know has a case or conviction that they want specific information on you’re going to want to consult a private consult with an attorney that is knowledgeable in these things to talk to somebody at my office for that. You can go to makelaweasy.com.