McGirt v Oklahoma Ruling
In July 2020, The U.S. Supreme Court handed down their decision in McGirt v Oklahoma. It held that the boundaries of the Muscogee (Creek) Nation Reservation had not been disestablished when Oklahoma gained statehood in 1907. This has a significant impact on the state’s ability to prosecute cases involving Indians. The state courts lack jurisdiction to prosecute non-Indians for some crimes against tribal members. If the crime occurs on Indian land and either the defendant or the victim is Indian, the state courts lack jurisdiction to prosecute.
In subsequent cases, the McGirt ruling has been expanded to all of the Five Civilized Tribes:
Bosse (2021 OK CR3), Chickasaw Nation
Hogner (2021 OK CR4), Cherokee Nation
Sizemore (2021 OK CR6), Choctaw Nation
Grayson (2021 OK CR8), Seminole Nation
Tribal member McGirt was tried and convicted of multiple sexual offenses in an Oklahoma state court in 1997 and sentenced to life in prison. He successfully challenged his conviction, asserting that Oklahoma lacked jurisdiction to prosecute a tribal member for crimes committed on tribal land.
Relevance of When You Obtain Tribal Membership
Prosecutors are unhappy with the McGirt decision and posit that if the defendant was not a tribal member on the date of the alleged offense, then the conviction cannot be affected by McGirt.
They argue that one is not an Indian until they register with an Indian tribe, rather than having that identity from birth. While this is likely to be litigated further, the question is whether the status held at birth or the formal enrollment and recognition by an Indian tribe determines eligibility under McGirt. Previous decisions seem to separate birth status from formal recognition.
Does McGirt Apply Retroactively?
The issue of whether McGirt could be applied retroactively to overturn convictions based on the lack of jurisdiction is heating up. Bosse left that question open. Bosse looked at the issue of waivers and laches, both as a function of the passage of time. Both of these legal constructs assert that if you wait too long to assert a legal claim, you can’t assert it any longer. Bosse asked whether this changed recognition of jurisdiction is retroactive.
Judge Lumpkin, a conservative judge of the Oklahoma Court of Criminal Appeals, recently ruled that subject matter jurisdiction must be raised if relevant. The case, James Chandler Ryder v the State of Oklahoma, seemed to settle that subject matter jurisdiction cannot be waived.
However, on August 12, the Oklahoma Supreme Court ruled in the 4-0 opinion written by Judge David Lewis that McGirt does not apply retroactively. This decision comes on the heels of Oklahoma’s request to the U.S. Supreme Court to overturn the McGirt decision.
No doubt, this issue will continue to percolate, and we will continue to keep you apprised. If you have questions about how these decisions affect you or a loved one, bring them to an experienced criminal defense lawyer from Wirth Law Office – Muskogee.
Free Consultation with a Muskogee Criminal Defense Lawyer
An experienced Muskogee criminal defense lawyer can work with you to get the best possible outcome. But it is important to talk to an attorney instead of the police. Our Muskogee attorneys are able to defend you and appear on your behalf before the tribal and federal courts. We will be with you every step of the way to ensure that you get a fair shake. Call a Muskogee criminal defense attorney today at 918-884-7774 with your questions. You may also schedule a free, confidential consultation by filling out the form on our website.