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Video Transcribed: Is the timing of tribal membership relevant in a McGirt claim in the state of Oklahoma. I’m McGirt Attorney, James Wirth and we’re talking about McGirt claims and whether it’s relevant when the person became a member of the tribe.
So we’ve got a lot of McGirt cases going on in Oklahoma right now that’s essentially people alleging that the state of Oklahoma lacked jurisdiction to charge them because their alleged crime occurred within the boundaries of a tribal reservation, and they are an Indian or the victim of the crime is an Indian.
So it becomes, when does the person become a tribal member or become an Indian, as it’s referred to in the various acts, under the McGirt precedent. And the state of Oklahoma, when they’re arguing these, they’re citing a specific case and it’s the United States v. Zepeda, and that’s 792 F 3rd 1103.
And essentially, the quote from that case, which is a ninth circuit case is, “In a prosecution under the Major Crimes Act the government must prove that the defendant was an Indian at the time of the offense with which the defendant is charged.” So according to that, they have to be Indian at the time the crime occurred.
So the state’s arguing, if they got the tribal membership later, then they’re not an Indian at the time of the crime, the state had jurisdiction. However, there’s a couple of issues with that.
First off, this is a ninth circuit case, that is not precedent here in Oklahoma, because we’re in the 10th circuit. And this hasn’t been decided, apparently, by a higher court like the United States Supreme Court.
Second, if you are a defense attorney or you’re a defendant in this, you want to look at the rules of the specific tribe because it’s possible that the tribe has membership rules that allow membership by birth.
So if a member gives birth to a child, that child is automatically under the constitution of the tribe, a member of the tribe, even though they don’t officially roll and get a membership card until later. So you’d want to look at that. But this is an area that is still being litigated. There is no High Court authority that determines how these are going to go in the McGirt cases. The state is arguing as I said, the Zepeda case.
There are other arguments that you are an Indian at birth, even if there is not a tribal constitution that says so. But certainly, if you’re in that circumstance, you want to look at the tribal constitution because that would be a very strong argument.
But if you’re dealing with this, or have questions about how it may apply to you related to this and the timing of tribal membership, you’re going to want to talk to an attorney about your specifics. To talk to me or somebody in my office, you can go to makelaweasy.com.