Tulsa Attorney BlogDoes the McGirt Precedent Apply to Misdemeanors?

Muskogee Creek Nation Was Never Disestablished

Video Transcribed: Does the McGirt Decision apply to Oklahoma misdemeanors? I’m Tulsa Misdemeanor Defense Attorney James Wirth, and we’re talking about the implications of the United States Supreme Court of McGirt that ruled that the Muskogee Creek Nation was never disestablished.

As we know, that precedent is going beyond the Muskogee Creek Nation. It’s likely going to the five civilized tribes, and it’s likely to go to tribes beyond that as well, but does it only apply as it did in McGirt to the Major Crimes Act or does it also apply to misdemeanors?

Well, the general consensus is the state lacks authority to charge Indians with crimes in Indian country regardless of whether it is a felony or a misdemeanor or a major crime or not a major crime.

However, there is some debate on that and we see some prosecutors at least trying to fight it on that issue. Many misdemeanors are being dismissed, so the general consensus, as I said, is that the state does lack authority, but the argument goes a little bit like this.

As far as the Major Crimes Act, it’s really specific, and it uses the language that jurisdiction is exclusive jurisdiction to the United States under the Major Crime Act. That’s only for a handful of very serious crimes; rape, murder, those sorts of things.

For other crimes, those fall within the General Crimes Act, which also provides for federal jurisdiction, but it doesn’t use the same language. It doesn’t have that word exclusive in it.

Some people are arguing that it does not take jurisdiction away from the state. It simply gives it to the feds but doesn’t take it away from the state. They have concurrent jurisdiction there where either one could prosecute.

However, that’s not the prevailing view at this time, but these things are being litigated. However, I did find one case, one case where the judge ruled that McGirt does not apply because it’s a misdemeanor, and that’s out of Macintosh County and it’s actually cased CM2021-75.

If you want to follow what’s happening in that case, it’s a state V and it’s B-O-G-U-M-I-L-L. Not sure about the exact pronunciation of that. I don’t want to botch it, but in that case, a McGirt motion was filed alleging the state lacked jurisdiction to prosecute.

It’s a possession of meth case, which interestingly is a misdemeanor under federal law, but under the Muskogee Creek Nation, where this could be prosecuted if it were dismissed there, or even if the tribe just wanted a prosecuted even if it wasn’t dismissed, in the tribal code, it’s actually a felony.

It’s interesting. They want to dismiss it as a misdemeanor where it could be prosecuted by the tribe as a felony, but anyway, they filed that motion. Rather than having a long-winded order that explains all the reasoning, which we’ve seen in a lot of these cases, we have 20-page orders or 15-page orders from the Oklahoma Court of Criminal Appeals or from trial judges, rather than the detail that gives the exact reasoning with quotes to authority, all we have is a simple denial that says it’s not a major crime.

It appears the judge denied the McGirt because in it it did find that the defendant is an Indian. It did find that the crime occurred in Indian country, but it denied it with just the note, not a major crime.

That case is still pending and going forward. Once that goes further and there’s some sort of resolution, the defendant could appeal that to a higher court to get a different ruling, but we are watching that case because of that issue.

If you have similar circumstances, have questions about how this may apply to you or not apply to you, you’re going to want to talk to an attorney about your specifics. For that, if you want to talk to me or somebody at my office, you can go to makelaweasy.com.

"Make law easy!"