Tulsa Attorney BlogDoes the McGirt Precedent Apply to the Ottawa Nation in Oklahoma?

Muscogee Creek Nation Tribal Reservation Was Never Disestablished

Video Transcribed:  Does the McGirt precedent apply to the Ottawa Nation in Oklahoma? I’m Indian Country Attorney, James Wirth, and that is the topic for today. Is the Ottawa Nation Historic Reservation ever been disestablished? All right, so a little bit of history on that.

The United States Supreme Court on July 9th of 2020, decided the McGirt v Oklahoma case, which held that the Muscogee Creek Nation tribal reservation was never disestablished. So that historic boundary is still the boundary today.

And within that boundary, which covers a large portion of Northeast Oklahoma and many counties, the state of Oklahoma has lacked authority to prosecute Native Americans for crimes.

Meanwhile, for the last hundred years, the state has been doing so, which is putting a lot of convictions in jeopardy and a lot of pending cases as well. But does that precedent apply beyond the Muscogee Creek Nation?

Well, it’s widely believed that it will apply to at least the five civilized tribes, but there are indications that it may apply to additional tribes as well.

When you apply that McGirt test to the facts of the history of the tribe. So for the purposes of this video, we’re talking about the Ottawa Nation. So it’s clear that the Ottawa Nation does have a historic reservation. It is within Ottawa County in the state of Oklahoma.

And once it’s established, the law provides in McGirt as well as prior case law, that once that reservation is established, it can only be disestablished through clear congressional intent. So was there ever clear congressional intent to disestablish the Ottawa Nation?

There’s reason to believe that there was not, and that goes to a case that we are following. That is the case of Patrick Terry V State of Oklahoma. He was convicted in Ottawa County back in 2013 of manufacturing methamphetamines near a school, and he filed for post-conviction relief in the trial court, and that was denied.

Then appealed that to the Oklahoma Court of Criminal Appeals and he was citing Murphy as his precedent. Murphy is the case that was decided by the Tenth Circuit, it was a precursor to the McGirt decision, and it decided the Muscogee Creek Nation was different, never disestablished.

So when that came out, it was essentially on hold until it was decided by the United States Supreme Court, which ultimately decided McGirt instead of that case, although both were decided at the same time. So while it was on hold, we knew what the decision was, but it wasn’t precedent yet.

This gentleman, Patrick Terry appealed his case, citing Murphy indicating that the Ottawa Nation Reservation was never disestablished, and therefore the court in Ottawa County lacked jurisdiction to prosecute him. Oklahoma Court of Criminal Appeals looked at that and said, “No, Murphy’s no precedent, so we’re denying your case.”

He went ahead and appealed this to the United States Supreme Court, just like McGirt appealed to the United States Supreme Court.

And on the same day that McGirt was decided, this case was also decided, but rather than doing the full review of the case and all of the facts and making the ultimate decision, instead of in this one, the court, the United States Supreme Court instead said, “Look, we’ve decided McGirt, that’s your blueprint. Follow that blueprint, and Oklahoma Court of Criminal Appeals, you decide this issue.”

So it was remanded back, the decision of the Oklahoma Court of Criminal Appeals denying the appeal was vacated by the United States Supreme Court.

But it was remanded back to the Oklahoma Court of Criminal Appeals, who then on October 14th of 2020, remanded it back to the trial court to have an evidentiary hearing on whether Mr. Terry is an Indian and on whether the crime was committed in Indian country or on reservation land.

So that deadline based on as of today, November 30th of 2020, that court date has not been set. So it doesn’t look like they’re going to meet their 60-day deadline that the Oklahoma Court of Criminal Appeals came up with.

But nonetheless, they need to set that hearing, have the evidentiary hearing, and then the trial court will essentially rule whether the Ottawa Nation was disestablished.

Then that information will go forward to the appeal to the Oklahoma Court of Criminal Appeals, who will then decide that appeal.

Then at that point, we will have a final decision from the highest criminal court in the state of Oklahoma on whether the Ottawa Nation was ever disestablished based on the fact that the United States Supreme Court thinks this needed to happen.

That’s an indication that it probably will happen, and they probably will decide that the Ottawa Nation was never disestablished, But no court has made that official decision yet.

The first court to do so will be Ottawa County, and then it’ll be appealed up and we’ll expect a decision from the Oklahoma Court of Criminal Appeals, which at that point it’s likely to be a final issue unless it’s appealed further beyond that, but the only appeal straight beyond that is to the United States Supreme Court.

So if you have been prosecuted in Ottawa County for a crime that occurred within the historic reservation boundaries of the Ottawa Nation, you’re going to want to be following this, but you’re also going to want to talk to an attorney about your specific circumstances and how this may affect you. So if you want to talk to somebody in my office about that, you can go to makelaweasy.com.

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