Tulsa Attorney BlogOklahoma Court of Criminal Appeals Shoots Down Prosecutors’ Blood Quantum Argument in McGirt Case

Muskogee Creek Nation Was Never Disestablished

Video Transcribed:  Oklahoma Court of Criminal Appeals has shot down the prosecutor’s blood quantum argument to try to limit McGirt. I’m McGirt attorney James Wirth. And we’re talking about the repercussions of a new decision from the Oklahoma Court of Criminal Appeals that came down on March 11th of 2021. It is a published decision that is binding precedent going forward.

And in that case, a number of defenses were presented by the prosecutors to try to salvage all of these convictions in cases after the McGirt precedent. And the one we’re talking about in this video is the blood quantum argument.

So a little bit of background. This goes back to the McGirt v Oklahoma decision from the United States Supreme Court that was decided July 9th of 2020. That decided that the Muskogee Creek Nation was never disestablished and a good portion of Northeast Oklahoma is still reservation territory, where the state lacks jurisdiction to prosecute natives or non-natives for crimes against Native Americans.

In the Bosse case, the defendant was a non-Native American, but he was prosecuted for crimes that he committed against Native Americans. And that court decided that the Chickasaw Nation, like the Muskogee Creek Nation, was never disestablished and the state court lacked jurisdiction.

But as we see in a lot of these cases, my firms representing a lot of defendants in these cases and either getting their current charges dismissed or old charges and convictions vacated.

And what we’re seeing is that there’s been a lot of pushback from the system. Prosecutors on some level have to acknowledge that the court lacks jurisdiction but they’re doing everything they can to kind of salvage these and prevent these cases from being vacated and these charges being dismissed.

So they come up with all these novel arguments and the novel argument we’re dealing with here is blood quantum. And what the precedent from the Tenth Circuit is clear on is that for someone to be considered an Indian, and that’s what they’re referred to under the statute, is Indian, that they have to have some quantum of blood and tribal membership in a federally recognized tribe.

But there are some other districts, not in the Tenth Circuit, from other districts that have found something that requires some quantum, some level of Indian blood. And prosecutors were trying to apply that in Oklahoma, in order to limit the number of people who can get relief under McGirt, by saying maybe we have to have a quarter of Indian blood or half of Indian blood. But the Oklahoma Court of Criminal Appeals shot that down pretty quickly.

They said that the precedent from the Tenth Circuit is clear, and we’re not going to do anything different than the Tenth Circuit because then you’d wind up with some bizarre loopholes where maybe somebody has an Indian in state court and not a federal court or an Indian in federal court but not in state court that could cause some people not to be able to be prosecuted anywhere.

So the court was real emphatic and clear, we’re going to go with the same rule and interpretation that the Tenth Circuit has that covers Oklahoma. And that is that you just have to have some blood quantity, not any specific level, but as long as you have some whatsoever and our member of a tribe.

Then also the court got into that we’re not going to decide what it takes to be an Indian, we’re going to leave that up to the tribes. The tribes are sovereign entities and they can decide who their members are. So we don’t want to get into changing that. So some of the quantum of blood and membership in a tribe.

But that still leaves open some issues because the Friedman are members of tribes, the individual sovereign nations may have decided to include them as members or may have been required upon them, but they may have no Indian blood. So that’s an issue that’s still up in the air. Along with a lot of other issues that will no doubt have to be decided in future decisions.

But as of now, at least we know from the highest criminal appellate court in Oklahoma, that the blood quantum argument is not going to work. Prosecutors can stop trying to push that one and delay these cases. That as long as the person has some level of blood and as a member of a federally recognized tribe, they are an Indian and can not be prosecuted by the state for crimes that occur in the historic boundaries of tribal reservations that have not been disestablished.

So if you’ve got questions on how this may apply to your case or the case of a family member or friend, you’re going to want to talk to an attorney about your specifics and you’re going to want to do so confidentially. To talk to an attorney at my office, you can do that by scheduling it, by going to makelaweasy.com.

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