Oklahoma Supreme Court distinguishes subject matter jurisdiction.
This is Tulsa lawyer James Wirth. The recent Oklahoma Supreme Court decision, 2023-OK-49, sheds light on how deprived child proceedings are affected by McGirt. One of the most crucial aspects clarified in this decision is the distinction between subject matter and territorial jurisdiction. The court refused to find that it is a subject matter jurisdiction issue, and instead called it territorial jurisdiction. This distinction is important because subject matter jurisdiction is absolute, whereas territorial jurisdiction opens up some wiggle room to make exceptions to the rule.
The Importance of Tribe Membership in Deprived Child Proceedings
Another critical aspect the court addressed is the importance of tribe membership in deprived child cases. The court made it clear that for McGirt to be an issue, the child must be a member of the tribe on which the reservation they reside lies. Thus, if the child is not a member of the tribe, then McGirt does not apply. This issue is expected to come up in future cases, and the court may rely on territorial jurisdiction to come up with new solutions.
Concurrent Jurisdiction and Intergovernmental Agreements
The court also addressed the issue of concurrent jurisdiction between the state and tribe, noting that under 25 U.S. 1919, ICWA explicitly authorizes an Indian tribe and a state to agree to concurrent jurisdiction outside the default rules set out by ICWA. This means that if an intergovernmental agreement exists, the tribes can provide jurisdiction to the state to allow it to prosecute deprived child cases. In Tulsa County, for example, an intergovernmental agreement was reached after McGirt was decided, allowing the state to move forward on deprived child proceedings.
Get the Legal Help You Need
If you are dealing with deprived child proceedings in the aftermath of McGirt, it is crucial to get the legal help you need. Given the fact-specific nature of these cases, it is advisable to talk to an Oklahoma McGirt attorney privately and confidentially to understand how the Oklahoma Supreme Court decision applies to your case. Contact my office to schedule a free consultation, and visit makelaweasy.com for more information.