McGirt V Oklahoma Expanded to the Five Civilized Tribes
Video Transcribed: Judge Becky Baird rules the Ottawa Nation Reservation was never disestablished. I’m Indian Country attorney James Wirth, and we’re talking about the expansion of McGirt into other areas. Specifically, we’re talking about the Ottawa Nation.
And that’s a reservation that is relatively small compared to some of the other ones in the state that is Ottawa County, Oklahoma. And we’ve seen McGirt v Oklahoma expanded to the Five Civilized Tribes, and there are other ones that are pending. And this decision specifically regards the Ottawa Nation.
And the defendant, in that case, is Winston Brester. And he had the four cases that he brought this issue upon. Some of them were current cases, and some of them were post-conviction cases. And there was an agreement to consolidate them together for hearing.
And McGirt, the decision from the United States Supreme Court, pretty much lays out the procedure on how these are supposed to go. It looks like the judge followed that. And the way that goes is essentially, first, the defendant has the burden of showing that there was a historic reservation that was established by the treaty.
Once that can be established by the defendant, the burden shifts to the state to show that there was specific congressional intent in law to disestablish that. If there’s not specific and clear congressional intent to disestablish the reservation, that means it was never disestablished, it is still in effect.
And that means that Indians can not be tried for crimes that occurred on that territory in state court. It’s got to be in federal court or tribal court. And in this case, he’s alleging that he is Native American. I think there were stipulations on both the existence of the reservation in the past and that he is Native American.
So the only question that came down to was the Ottawa Nation reservation disestablished and the court shifted that burden to the state just like McGirt indicates needs to be done. And the state had a couple of arguments.
And they were relying essentially on this Termination Act accordingly the order of August 2, 1956. They said that the Termination Act that was passed disestablished the Ottawa Nation boundaries. However, that Act itself was repealed on May 15, 1978.
So the court in Ottawa County, District Court held that that repeal undid the Termination Act anyway. So it’s held for not, and we’re not going to look at that at all. So what evidence do you have state beyond that, that the reservation boundaries were disestablished? The state had none.
So the court ruled that the Ottawa Nation was never disestablished. It is still in full effect today that these crimes that occurred within it are not within the jurisdiction of the state court. So they need to be dismissed.
At that point, the state gave notice of intent to appeal. They filed that notice of intent to appeal on March 8, 2021. To date, it does not appear that they have filed with the Oklahoma Court of Criminal Appeals.
The judge granted an OR bond for the defendant pending to see whether that was going to be filed and reset the matter to June 2, 2021, where the defendant will appear back before the court. The state will give an indication on whether they have filed an appeal with the Oklahoma Court of Criminal Appeals.
If the file that, then the case will be done at that point. The defendant will be allowed to go free unless the charges are filed in another court where they have a hold on him. But we’ve got the first ruling, at least from a lower-level judge that the Ottawa Nation was never disestablished.
Likely, we’ll get further rulings on that from higher courts. But at this point, that’s the only decision that I’m aware of. If you’ve got questions on how this may affect your case or cases, or that of a friend or family member, you’re going to want to talk to an attorney about your specific circumstances and do so confidentially. So if you’d like to get that scheduled, you can go online. Go to makelaweasy.com.