Tulsa Attorney BlogMcGirt: Death Sentence Overturned by Victim’s Posthumous Tribal Enrollment

This Case Is Relevant to the Timing of Tribal Enrollment

Video Transcribed: Death sentence overturned based on victim’s posthumous tribal enrollment. I’m Oklahoma attorney James Wirth, and I’m talking about a brand new published decision from the Oklahoma Court of Criminal Appeals, dealing with another McGirt v Oklahoma issue. And this case is relevant as to the timing of tribal enrollment and how that affects a conviction in a McGirt-type case. So a little bit of background.

We’re talking about the United States Supreme Court case of McGirt that found that the Muskogee Creek Nation was never disestablished, and thereby pursuant to other laws already in effect, those who are Native American, who are alleged to have committed a crime on reservation territory, or against… someone who’s non-Native American committed a crime against a Native American person, the state lacks subject matter jurisdiction.

So we’re seeing a lot of these issues resolved. It’s been expanded to all five of the Civilized Tribes are now recognized to have their original tribal reservation boundaries, and we have a lot of cases going on, but one of the issues is the timing of tribal enrollment and when does one become an Indian? When does one become a tribal member?

And there hasn’t been a lot of specific cases on point. There’s one lower-level case. This is the first case we have from the appellate court, deciding that as it relates to McGirt. And the facts are somewhat heinous, but the decision gives us a little bit of guidance on where this may be going.

So in this case, it’s a Rogers County case, which all of Rogers County is now determined to be Cherokee reservation land where the State of Oklahoma lacks jurisdiction. And in this case, it’s not a tribal defendant. It is a tribal victim.

We have of a person who had an infant daughter, who the daughter was… I guess the daughter’s mother was Native American. The father was not. And the daughter was brutally murdered, and the father was charged for that crime, ultimately convicted and given the death penalty.

But about six months or so after the child’s death, the child’s enrollment in the Cherokee Nation was approved.

And based on that approval, the court essentially found that tribal membership once approved is retroactive and it deprived the court retroactively of jurisdiction to enter this conviction.

So this death penalty case has been… Essentially the sentence has been vacated. The charges have been dismissed, and now it’s open to potential repercussion in federal court. But that case is Benjamin Robert Cole Sr. v. State of Oklahoma. It’s published now, 2021. OK CR 10. And this is the first case that deals with this timing.

However, it doesn’t go into a lot of the background regarding the rules on how that applies. But if it says that the enrollment posthumously of a victim deprives the court of jurisdiction, then it’s very easy to see how the same occurs when a defendant after the fact enrolls as long as the defendant is eligible for tribal membership.

So it doesn’t provide a lot of insights into the rules and how to figure this, but it does indicate that there’s an excellent chance that it is going to go the way where the timing of the tribal membership doesn’t matter.

Once you become a member, you’re always have been a member. Now, if you have one of those cases pending, know somebody who does, or is on the other side of one of these issues, you’re going to want to talk to an attorney about your specific circumstances. To get that scheduled with an attorney at my office, you can go to makelaweasy.com.

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