The Chickasaw Nation Was Never Disestablished
Video Transcribed: Does the State of Oklahoma have concurrent criminal jurisdiction over non-Indian defendants who commit crimes against Indians under McGirt?
I’m McGirt Attorney James Wirth and that’s the question that we’re talking about today and it’s related to a new appeal decision decided by the Oklahoma Court of Criminal Appeals on March 11th of 2021.
And that’s the Bosse case. And it’s the first case where we’ve seen a court deal with the circumstances since McGirt v Oklahoma, where the defendant is a non-Indian, but the victims are Indian.
And the court, in that case, found that because the Chickasaw Nation was never disestablished that the state lacked jurisdiction over that defendant, even though the defendant is non-Indian, but because the victims were Indian.
And in that case, the State of Oklahoma through their prosecutors, through the district attorney’s office, argued that under these circumstances that the state should have concurrent jurisdiction along with the federal government and the tribes for crimes that are committing there against Indians. And unfortunately, they didn’t have very good arguments or background to present for that because they got a negative decision for them.
So, what the Oklahoma Court of Criminal Appeals found was that it says, “The state argues that despite the clear language of both statute and case law, federal and state courts have concurrent jurisdiction over non-Indians under the General Crimes Act.”
And then the conclusion they quickly get to is the law does not support their argument. So, the State of Oklahoma wanted to have concurrent jurisdiction, so they could prosecute these cases still where it’s Indian victims and non-Indian defendants.
The court slapped down that argument pretty quickly, said there’s no basis under law to support that, that the federal government has exclusive jurisdiction for those. The state government has no jurisdiction. So, that argument they put up failed from their point of view, unfortunately, failed.
But from the defendant’s point of view, that’s obviously a win. And it’s an essential denial of the state and trying to prevent the expansive nature of McGirt. As these McGirt decisions are coming out, and when McGirt generally came down, the state prosecutors tried to save and salvage all of these cases and convictions have come up with a lot of novel arguments.
Most of them have not had any merit whatsoever, but they’ve done something of delaying the processes of people getting relief under McGirt. This is just one more of them that has come and has now fallen.
If you’ve got questions on how this may apply to your specific circumstances or case, you’re going to want to talk to an attorney about that confidentially. To get that scheduled with an attorney at my office, you can go to makelaweasy.com.