Tulsa Attorney BlogThe New Wave of McGirt: Attacking Sentence Enhancements & Predicates

Muskogee Creek Nation Was Never Disestablished

Video Transcribed: The new wave of McGirt, attacking sentence enhancements and predicate offenses. I’m Indian Country attorney James Wirth, and we’re talking about new developments regarding McGirt, that’s the United States Supreme Court case that found the Muskogee Creek Nation was never disestablished. It is since been found that the five civilized tribes in Oklahoma have also not been disestablished, that’s all still reservation land for a good portion, almost half of Oklahoma.

And there are additional tribes that are still up in the air, that may get findings that their historic boundaries of the reservations were also not disestablished. But what’s the new way that we’re talking about? It’s expanding geographically, but we’re starting to get a different type of call as well.

As lawyers, we’ve handled a lot of McGirt cases, we’re handling a lot currently. And we get calls from people that are incarcerated, where they’re Indian and their crime was charged from an event that occurred on what is now known to be tribal territory, which is all of Tulsa County, surrounding counties, and they’re eligible for post-conviction relief.

Or we’ve got a client who has a current charge pending and they’re Native American or the victim, the alleged victim is Native American, and it’s within the historic boundaries of these tribes that are now the current boundaries of the tribes and were filing to get those dismissed.

But what we’re now seeing is the next way. The next big thing that we’re seeing is people attacking sentence enhancement and predicates. And that’s where, for example, we get somebody who’s calling that was convicted for obtaining a firearm after conviction of a domestic violence case.

And that’s filed in federal court, and they’re Native American or the alleged victim of the crime was Native American. So either way, that’s a federal charge in federal court. McGirt can’t attack that at all.

However, you cannot make that offense unless you have the predicate conviction, which in that case is the domestic violence conviction. Or it could be the possession of a firearm after conviction of a felony, the former conviction of a felony, and you can’t make that offense unless you have the prior conviction.

So what we’re seeing are federal charges that are predicated on state charges that are now void based on McGirt. So where the defendant, in that case, can file a McGirt post-conviction relief, even though they’ve completed the sentence on the prior offense.

But then that then causes the new charge to not be able to meet all of its elements or the charge for which they’re currently serving a sentence, they can’t meet the elements. So we’re attacking then the predicate offense or the sentence enhancing offense.

So let’s talk about sentence enhancement. So if you’re convicted in state court, there are Oklahoma laws regarding sentence enhancement based on you having prior felony convictions or certain predicate offenses.

So for instance, a first-time DUI is a misdemeanor, second time DUI is a felony. And then we also have the Habitual Offenders Act, which means that if you’ve got prior felony convictions, those can be alleged on what’s called your second page in order to make the range of punishment more severe in state court.

So if we’ve got somebody who’s being charged for a crime that occurred may be outside of the tribal territory, but they’re trying to enhance the sentence on that based on prior felonies that were in what we now know to be tribal territory and they’re Indian, then those predicate offenses or those sentence enhancement offenses can be attacked, file post-conviction in those. And then that lowers the range of punishment for the current offense.

We’re starting to get a lot of calls on these, and that’s the way that McGirt is expanding right now is by attacking predicate offenses and sentence enhancements. And that’s for current charges in federal court, prior charges in federal court, and current charges and prior charges in state court that are maybe outside the reservation, but the predicates were inside reservation land.

If you’ve got something like that pending, have a question about how it may affect you or somebody you know, you’re going to want to talk to an attorney about your specific circumstances. To get that scheduled, you can go online to makelaweasy.com.

"Make law easy!"