One Thing About The McGirt Decision Is It Doesn’t Keep A Tribe Or The Feds From Filing Cases Against You.
Video Transcribed: My name is Ryan Cannonie, I am the Tahlequah criminal defense attorney for Wirth Law Office in Cherokee County. And for those who have stumbled upon this for the first time, the McGirt decision is a Supreme Court decision that came down this summer involving the Creek Nation tribe, Muskogee Creek Nation.
And what it said was that the tribe’s reservation, which is…the entire tribal boundary is a reservation. The reservation was never disestablished, meaning that they’ve had a reservation this entire time. Now, the ruling in McGirt is only for the Creek Nation, Muskogee Creek Nation.
However, their treaty language and the timing and everything around that decision and what it was based on equally could apply to the other five tribes. Now that’s Cherokee, Choctaw, Chickasaw, Seminole, and, of course, Creek. And so that means that while we’re waiting on official appellate court decisions, it appears that all of those tribes also have a reservation. The Oklahoma Attorney General has said as much. A lot of DAs’ offices have said as much. All the tribes definitely agree that they still have reservations.
Now, what does that mean to you? Well, if you are a Native American member, or if you are accused of a crime where the victim is a Native American member, that means that state courts, that’s your district court of Cherokee County, district court of Adair County, Muskogee County, different, whatever the County is, didn’t have the legal authority to prosecute you. Meaning if you have a case pending, they don’t have the authority. It means if you already pled to a case or was found guilty in a case, then you can file a motion to try to get rid of that based on the fact they did not have authority.
Now, one thing I’ve seen brought up, and one thing I’ve heard from friends who have argued these motions in other counties that prosecutors might be bringing up is the fact that the McGirt decision really looked at the Major Crimes Act. Specifically, McGirt was, there were actually two cases. There was Murphy, Murphy v. Royal, I think is what it was called, and it dealt with murder, and then McGirt dealt with lewd molestation, which are pretty serious felonies.
I mean, they’re about the most serious you can get. Those were considered, or are considered, major crimes. However, there’s also other crimes that are not listed in that Major Crimes Act that McGirt’s decision filters down to. And the Major Crimes Act, things like, let’s say a public intox is not found in major crimes. It’s not a major crime. Major Crimes Act that’s talked about in McGirt does not get jurisdiction.
However, there’s another statute called the General Crimes Act, and at one point, I think it was called the Indian Crimes Act, so it’s weird when you look it up. It’s got kind of a dual name. It talks about general crimes, and there’s a lot of case law that’s come out about that.
In fact, neighboring Adair County, there’s a case, probably 30 years ago or so that deals with public intoxication on tribal land. And based on the case law, even these general crimes, these public intoxes, like DUI kind of type stuff, stuff that there’s no victim, and they’re not a major felony, McGirt would also apply to them because if there is a reservation, if there’s Indian land, then those cases either have to go one of two places.
If you have a Native American defendant or a Native American victim, then it has to go either federal or tribal, not to the state courts. So that’s really, in a nutshell, kind of what’s going on in the state right now. There’s a lot of people talking about it. McGirt’s, there’s decisions being made every day on it.
I believe the legislature and Congress are trying to work out something to change the law as it relates to McGirt. But for right now, there’s kind of a gap where if you’ve had a public intox in state court and you’re a Native American member and it happened in one of the five tribes within their boundaries, then the decision should apply to, would apply to you, and you should be able to get that conviction either dismissed, or possibly even expunged, from your record by being dismissed and expunged.
So if you find yourself in this situation, if you’re a Native American member and are charged or have been already pled to a crime, or if you had a case where you were charged with a crime, let’s say assault and battery, you got into a fight out at the river and the other person was Native American, and let’s say they were part of the Choctaw tribe, but this happened at the river in Tahlequah. The whole decision still applies. Come give us a call.
We might be able to help you get your case dismissed and expunged. We might be able to help stop any prosecution of your case. Now, before I end this video, one thing I do want to bring up is that a lot of people are saying, “Well, we’ll just follow our own motion.” I have a … I don’t, but like saying, someone says, like, “I have a uncle in prison right now.” We’re just going to file a motion that says there was no jurisdiction for the state to do this.
One thing about the McGirt decision is it doesn’t keep the tribe or the feds from filing cases against you, meaning if someone goes out and files a motion to have a case dismissed or to have an old conviction reversed, then that doesn’t mean that the federal authorities or tribal authorities can’t file a case against you and have jurisdiction to legitimately punish you for it.
And also, their punishments are different in both federal and tribal court than they are at state a lot of times. So it’s real important to talk to an attorney about the cost-benefit of trying to dismiss your case or get it reversed so you know kind of what you are looking at going into it.
And if you have questions about this, you have concerns, you want to look at a strategy or look at just, if you have something like a P.I., just going in and trying to get it filed, you want to talk to a Tahlequah attorney, come on down or give us a call. We can help your Tahlequah criminal law case.
