The Future of Criminal Prosecution on Reservations
I’m James Wirth, an attorney in Tulsa, Oklahoma and we’re talking about this issue because it relates to McGirt in Oklahoma that United States Supreme Court ruling that found that the State of Oklahoma does not have the legal authority to charge defendants who are Indians for crimes that occur on reservation land. And the main part of that ruling was that it held the Muskogee Creek Nation was never disestablished, and then that also subsequently courts found that the Cherokee Nation Reservation was never disestablished.
So this case deals with actually the Kickapoo Nation Reservation, and that is a reservation historically that it was in, let’s see, Oklahoma County, partially in Lincoln County, Potawatomi County.
This particular case though comes out of Potawatomi County. It’s actually a published decision that just recently came out on January 19th, 2023. It is BUCK v. STATE. 2023 OK CR2, which means it’s the second published case from the Oklahoma Court of Criminal Appeals for 2023. And it holds that based on language that was in the Act of September 9th, 1891, that reservation was specifically seated and disestablished.
And it reads some of that language and it says, “That said Kickapoo Tribe of Indians in the Indian territory hereby cede, convey, transfer and relinquish forever and absolutely without any reservation whatsoever. All their claim title and interest of every kind and character in and to the lands embraced in the following described track of country in the Indian territory.”
So that is pretty unambiguous, clear language that is part of an act that was entered back in 1891 and therefore that reservation has been disestablished is the finding now by the Oklahoma Court of Criminal Appeals. Obviously, until McGirt we were operating under the assumption for the last 100 years or so that all of those reservations were disestablished.
But in the case of some of the tribes, including the five tribes, there was not particularized language like that. And ultimately the United States Supreme Court ruled that they were not disestablished, which means that that reservation still exists in Indians cannot be prosecuted by the State of Oklahoma, nor can non-Indians, against where the tribal victim is Indian, although that has now changed based on the Huerta case. All right, so that is the update for McGirt in the State of Oklahoma.
If you’ve got any questions as it relates to your particular circumstances, you’re going to want to talk to an attorney privately and confidentially about that. To speak with an Oklahoma McGirt lawyer at my office, you can go online to makelaweasy.com.