Tulsa Attorney BlogOCCA Approves Indian Status for Defendant Who Obtained Tribal Membership in Response to McGirt

Defendant has 3/16th Indian Blood by the Choctaw Tribe

Video Transcribed: Oklahoma Court of Criminal Appeals approves Indian status for a defendant who sought tribal membership after McGirt v Oklahoma. I’m Tulsa lawyer James Wirth. We’re talking about a new case from the Oklahoma Court of Criminal Appeals.

It’s unpublished, but it is Watkins V Oklahoma F-2018- 790. And in this case, it’s a criminal case where the person had been convicted in the trial court after the trial court found that he did not qualify as an Indian for the purposes of McGirt.

It was undisputed that the crime occurred in Indian territory, so the question came down to whether he qualifies as an Indian. He had a number of factors that suggested that he does but ultimately the trial court said, well, he was not registered as a member with a tribe, therefore pursuant to that test that we’ve seen from the Oklahoma Court of Criminal Appeals, which is do they have some Indian blood and are they a recognized member of an Indian tribe.

attorney in OklahomaApplying that simplified rule that the Oklahoma Court of Criminal Appeals has listed in prior McGirt decisions, the trial court found that, no, you’re not an Indian. This court does have jurisdiction. He was prosecuted convicted, ultimately appealed to the Oklahoma Court of Criminal Appeals.

As part of the finding the trial court made, it found that he was 3/16th Indian blood by the Choctaw tribe, so it was undisputed that he had Indian blood, but he did not become an enrolled member of the Choctaw Nation in Oklahoma until October 9th of 2020, which is a few months after McGirt was decided.

So it sounds like it’s a case where somebody found out about McGirt, was not a registered member of the tribe, applied for membership, got a membership, and then filed a motion to dismiss. The court found that there was insufficient evidence that he was an Indian based on all of these and ultimately found that he could not be considered an Indian. The court had jurisdiction.

So previously, as I said, the Oklahoma Court of Criminal Appeals has looked at a more narrow, simpler rule, but we know from other prior decisions that predate McGirt that it’s a little bit more complicated than just looking at tribal rolls to see if somebody is an Indian or not.

And this case forced the Oklahoma Court of Criminal Appeals to pull up those more specific rules that fall under these circumstances where you do not actually have tribal membership at the time that the crime occurred.

So under those circumstances, they recognize pursuant to precedent that you look at, one, tribal enrollment, government recognition formally and informally through the receipt of assistance reserved only to Indians, employment, or, I’m sorry, enjoyment of the benefits of tribal affiliation, social recognition as an Indian through a residence on a reservation and participation in Indian social life. So those are the factors that they’re going to look at.

So in this case, they found, although he was not a member of the tribe prior to McGirt, he actually did have a CDIB card with the federal government that listed him. There was also testimony that indicated they did receive benefits from the tribe, including food assistance and healthcare.

And although there was limited documentation provided at the hearing for that, the testimony was enough pursuant to the Oklahoma Court of Criminal Appeals to find that, yes, under the precedents that exist prior to McGirt, it is enough to show that he is an Indian for the purposes of determining Indian status under federal law that determines subject matter jurisdiction.

So in this case, although the person was not a registered member of the tribe at the time of the crime and only became a registered member of the tribe after McGirt, looking at the other factors in how he’s grown up receiving benefits, his family received benefits from the tribe and were members of the tribe and it’s just a matter that he hadn’t enrolled because he was a minor before and he had time incarcerated after he became an adult.

Whatever those circumstances, the fact that he was not enrolled at the time of the crime was not enough to say you’re not an Indian. There’s a more broad test that you apply looking at other forms of recognition, social recognition, Indian social life, and benefits received from the tribe found that he was an Indian. So ultimately the case is going to be dismissed, sent back to the trial with the instructions to dismiss.

So if you’ve got questions about Indian status, how that’s determined, how that applies in this new era where we’re dealing with McGirt issues, you’re going to want to talk to an attorney about that specifically, confidentially. To get that scheduled with somebody in my office, you can go online to MakeLawEasy.com.

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