McGirt Majorly Impacts Oklahoma
Video Transcribed: Does McGirt apply to the Quapaw Nation? I’m McGirt attorney James Wirth, and that’s the question that we are discussing today is, are the historic boundaries of the Quapaw Reservation, have they ever been disestablished? And this is related to a case I’ve been filing for some time, and that is State of Oklahoma v. Lawhorn.
And that is a case out of Ottawa County. And the Quapaw Nation Reservation is actually totally within Ottawa County. In Ottawa County, there’s a number of tribal reservations there. The Quapaw Nation is one of those that take up a significant portion of the county, but not all the county does not extend anywhere beyond the county.
And we’ve been following this case because the lower court decided that as the Supreme Court decided in McGirt to the Muscogee Creek Nation, the lower court, the Ottawa County district judge decided that the Quapaw Nation Reservation was never disestablished.
That is still Indian country, where the state of Oklahoma lacks jurisdiction to prosecute crimes committed by or against Indians. And that went up to the Oklahoma Court of Criminal Appeals. The state appealed that decision, which dismissed the charges against Lawhorn saying that there was no jurisdiction for the state.
The state hadn’t appealed that to the Oklahoma Court of Criminal Appeals. And then on October 21st, 2021, we got our answer there. And they went through the same discussions and the same legal framework that we go through in deciding this based on McGirt, which essentially first if there’s any evidence that a reservation was established, which is usually pretty clear-cut, we’ve got the treaties that demonstrate that.
Then at that point, it is incumbent on the state to prove that those reservation boundaries were disestablished through an act of Congress. Essentially, there’s got to be an explicit act of Congress where a bill that was passed and signed into law indicates that it was disestablished.
This is what the court said there. We look to acts of Congress. While no particular words or verbiage are required to disestablish a reservation, evidence of a clear expression of congressional intent to terminate the reservation is required. And just like in McGirt, where they did not find any clear congressional intent to disestablish the Muscogee Creek Nation, the court here did not find any clear congressional intent to disestablish the Quapaw Nation.
So the Quapaw Nation Reservation is now recognized, pursuant to the highest criminal court in the state of Oklahoma, to have not been disestablished. And charges against Native Americans or against non-natives for crimes committed against Native Americans in that county should be dismissed for want of jurisdiction. Of course, going back retroactively to old cases where there’s already a conviction, where it’s already passed the point of direct appeal, pursuant to the precedent from the Oklahoma Court of Criminal Appeals in Wallace, it says that’s not going to apply retroactively.
That is still up on appeal, likely going to the United States Supreme Court. But as of this point, you can expect this is going to be applied in the Quapaw Nation prospectively, but not necessarily retrospectively.
So if you’ve got any questions about how this may apply to your case, or have a question about some other reservation boundaries, there’s a number of them that are still pending to be decided. A lot of the cases that we’ve been following in those other tribal reservations were actually post-conviction cases, which means because of Wallace, those are either going to be put on hold or not going to happen, certainly not at this time. So it may take longer to decide whether some of those other tribal nation reservations have been disestablished. If you’ve got a question related to McGirt or anything like this, you’re going to want to talk to an attorney privately, confidentially about that. To get that scheduled with somebody in my office, you can go online to makelaweasy.com.