Tulsa Attorney BlogMuskogee Judge Dismisses McGirt Case with Subsequent Tribal Enrollment

Muskogee Creek Nation Was Never Disestablished

Video Transcribed: Muskogee judge dismisses McGirt case with subsequent tribal enrollment. I’m McGirt attorney James Wirth, and we’re talking about a recent development in a Muskogee case of somewhat notorious interest, and that’s the case of Leroy Jemol Smith.

There were a few rapes in the 1990s that just recently DNA evidence was able to tie, and according to law enforcement, through DNA they were able to tie that to Leroy Jemol Smith, and the Muskogee County District Attorney filed those rape charges against that person.

Then subsequent to that, the McGirt decision, where the United States Supreme Court held that the Muskogee Creek Nation was never disestablished came out, and that indicates that tribal members cannot be charged with crimes that occurred on reservation land in State Court. It has to go to federal or tribal court. So, there’s been some bumbling going on in this case, as these brand-new reviews of the law, or understandings of the law, are applied to a very specific case.

The court in Muskogee dismissed that case for want of jurisdiction and sent it out for prosecution with the Federal Government. Then the Feds filed the charges, and the time period for the State of Oklahoma to appeal the dismissal out of Muskogee passed, and they allowed it to pass because the charges were pending in federal court. Well, in federal court, as soon as that time period to appeal lapsed, the defendant’s attorney in that court filed a motion to dismiss for violation of the statute limitations.

Essentially, the crimes were committed in the 90s. They did not file within the statute of limitations, and they’re prohibited from doing so now. So, then it got dismissed out of federal court, and the federal courts were hoping that the tribe could pick it up.

It went to the tribe, and the tribes looked at the background, and like, “Well, this guy didn’t actually even become a tribal member until later. He wasn’t a tribal member at the time these alleged crimes occurred, and because of that, we don’t have jurisdiction to charge him.” And of course, the tribes only have jurisdiction to charge general crimes, not major crimes, and they’re limited in the length of the sentence.

They can only do shorter-term sentences, so it would not have been a full prosecution anyway, but the tribe held that they didn’t have jurisdiction to do it because he wasn’t a tribal member at the time of the crime.

Okay. Then it gets picked up again, the Muskogee County District Attorney files the charges again, the defendant files another motion to dismiss, and that’s the decision we’re talking about today. Where after a hearing the feds file a motion to dismiss, the state files their response, a hearing was had, and the judge in Muskogee County found, “Yeah, we don’t have jurisdiction,” and that case was dismissed again. The State of Oklahoma is asserting that they are going to appeal it this time.

It’s a potential appeal at this time, but it’s the first case that I’m aware of where the judge has dismissed it, where the person was not a tribal member at the time that the events occurred. That’s an issue that’s still outstanding. We’re waiting for rulings on that from higher courts because it’s kind of a complicated issue. Is when do you become a tribal member?

Is it at birth, or is it when you enroll with the tribe? When does the tribe get jurisdiction? When does the state lose jurisdiction? These are issues that face countless defendants out there, and we don’t have clear guidance on it.

That’s why this is interesting, because from a legal perspective because in this case, the court held that even though the person was not a tribe at the time of the crimes were committed, that the State lacks jurisdiction.

However, it’s not right clear exactly what the reasoning of the judge is, because a full opinion is not out yet. The court may have found simply that the state was barred from refiling because it was previously dismissed when the state did not raise these arguments that they weren’t a tribal member at the time.

It’s not clear from the information that I have, whether the defendant is a tribal member through blood quantum, or whether he is a freedman that may be a tribal member without blood quantum. That may explain some controversies regarding the timing of him becoming a tribal member.

But it’s an interesting decision that we got there. It’s certainly an interesting case that has possible negative consequences for people involved, given the severity of the charges and the circumstances, but we’re following these cases and other cases to see how they apply to other people that are charged where tribal membership came subsequently.

So, if you’re in that scenario, have questions about it, want to know what the current status of the law as we understand it is, you’re going to want to talk to an attorney about your specifics, do so confidentially. If you’d like to schedule that with somebody at my office you can go online to makelaweasy.com.

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