Muskogee Creek Nation Was Never Disestablished
Video Transcribed: Ottawa county judge rules Peoria Nation Reservation never disestablished. I’m McGirt attorney James Wirth. And we’re talking about the expansion geographically of McGirt. And that was the United States Supreme Court decision on July 9, 2020.
That found that the Muskogee Creek Nation was never disestablished. That, that original boundary of the reservation is still the reservation, which means the majority of Tulsa County and surrounding counties are reservation land. That has since been expanded to each of the Five Civilized Tribal reservations that are still pending to be a decision.
But they’re all decided based on the rules that are set up in McGirt v Oklahoma. And basically what McGirt says is that “If there was an established reservation based on a treaty, it still exists unless there was specific congressional intent to disestablish it.” Then you look at the letters of laws passed by Congress to find that out.
And that is the framework that was used by the judge in Ottawa County. So the case there it’s Winston Brester and he’s got four cases. And some of them are currently pending cases and some old ones are doing post-conviction relief.
But those cases in Ottawa County and some of them are in the Peoria Tribe, and some of them are in the Ottawa Nation Tribe. But as far as the Peoria Tribe goes, which this video is covering, the court found, and there was actually a stipulation between the state and the defendant, that the Peoria Nation did exist at one time, that it was created by treaty.
From that point, the burden shifts from the defendant onto the state to show that it was disestablished at some point. And they made some arguments. They had noted that there was the Termination Act of August 3, 1956.
And they’re asserting that that terminated the reservation at that time. However, they also acknowledged that the Act of May 15, 1978, repealed the 1956 Act. So the court essentially found well, once that’s repealed, it completely undoes the prior Act. So we don’t review that prior Act at all.
And without reviewing that prior Act, they brought no evidence of congressional intent to specifically terminate this reservation. So the district judge, or actually I think it was a special judge, in Ottawa County found that the Peoria Nation historic boundaries were not disestablished, they still exist today. And the state of Oklahoma lacks jurisdiction in that area to prosecute people such as in this case, Mr. Brester.
So this decision is likely to be appealed. I believe they put in a notice of intent to appeal on March 8, 2021. However, I don’t see that an appeal has actually been filed yet with the Oklahoma Court of Criminal Appeals.
The judge allowed the defendant out on an OR bond, but reset the court date to June 2, 2021, to see if that appeal is filed. So we have at least one decision from one lower-level court finding the Peoria Nation reservation was not disestablished. We’ll see what happens if that goes up to the Oklahoma Court of Criminal Appeals.
But we are seeing that the McGirt Decision is expanded beyond these five civilized tribes. If you have questions on how that may affect you, you’re going to want to talk to an attorney about your specific circumstances. You’re going to want to do so confidentially. To do that with somebody at my office, you can go online to get that scheduled. Go to makelaweasy.com.