A Good Chunk of Northeast Oklahoma Is Still Indian Country
Video Transcribed: McGirt does apply to the Seminole Nation. I’m McGirt attorney, James Wirth, and I’m reviewing a brand new decision today from the Oklahoma court of criminal appeals. Just dropped this morning, April 1st, 2021. It’s a case of Devon Grayson V Oklahoma, and that is this defendant’s appeal of a murder conviction that occurred within the historic boundaries of the Seminole Nation.
And as you all are probably aware that I’ve discussed in many other videos the United States Supreme court decided the McGirt v Oklahoma case on July 9th of 2020 and the court there decided that the Muskogee Creek reservation was never disestablished and therefore, a good chunk of Northeast Oklahoma was still Indian country where the state of Oklahoma lacks jurisdiction to prosecute Indians.
So this is the application of McGirt applied to now yet another tribe. This is the fifth tribe that the Oklahoma court of criminal appeals has acknowledged has not been disestablished.
So in that case, ultimately there was a murder conviction at stake. The court found that the Seminole Nation was established and pursuant to the McGirt precedent, the court has to find that there was clear, unambiguous congressional language passed into law that disestablished it in order for it to be disestablished.
The states of Oklahoma in fighting to keep that conviction was not able to come up with any arguments that it was disestablished under congressional law, and therefore the court found it was not as established. And this crime occurred within that and found that Grayson is a tribal member and an Indian, and therefore can not be prosecuted by the state of Oklahoma.
So, that sentence was vacated, the conviction was vacated, and it was remanded back to the state court in Seminole County with instructions to dismiss. Now, this is a relatively recent case, looks like a 2015 filing of that original charge.
So it’s likely that there will not be problems for the feds to pick up prosecution and retry this case in federal court for the murder. Murder, being a major crime, can only be tried in federal court. So, that is likely to happen in this case. In other cases that are being reversed, they may be a lot older. There may be a statute of limitation issues. There may be a lack of evidence or loss of evidence issues, spoliation of that evidence.
So this is going to be tricky for prosecutors in federal court or in tribal court, if it’s not a major crime, to pick some of these backups. But a lot of cases are being dismissed, and now McGirt has expanded to the Seminole Nation, that Seminole Nation, for the most part, shares a boundary with Seminole County.
So if the crime was committed in Seminole County and the victim of the crime or the perpetrator of the crime is Indian, now pursuant to this precedent, the state of Oklahoma cannot prosecute that person.
It needs to go to federal court if it’s a major crime. And if it’s not a major crime, then it could go in tribal court or through the Assimilation Act, could be tried in federal court. If you’ve got any questions on how this may apply to your circumstances as either a victim of a crime or a defendant in a crime, then you’re going to want to talk to an attorney confidentially about that. To get that scheduled, you can go to makelaweasy.com.