Which Tribal Nations are protected by McGirt?
The Supreme Court decision in McGirt v Oklahoma was a landmark ruling for the rights of Native Americans to have criminal jurisdiction restored to their tribal lands. Tribal governments have been governing and ruling over their own communities for hundreds of years however this sovereignty has been repeatedly undermined by the State of Oklahoma and the federal government. The McGirt decision is the first time that the Supreme Court has given explicit support for tribal sovereignty.
Although the decision is related to only one tribal nation in Oklahoma, it has been generally interpreted to apply to all nations that have not been disestablished by Congress. As a result, many individual tribal members have been able to get their cases thrown out of state courts and allowed to be governed by their own laws and court system. If you are a member of a Tribal Nation in Oklahoma and believe you should be afforded the protection of McGirt, you should speak with a criminal defense attorney from our law firm.
At Cannon & Associates, our lawyers can help you get your case dismissed based on the McGirt decision and represent you with any state or federal law matters. Our law firm has been helping all citizens of Oklahoma for many years and we understand the unique issues that Native Americans are faced with. We want to help you in any way we can by providing the highest standard of legal representation and by being your fierce advocate.
Our criminal defense lawyers are highly skilled in all criminal and family law matters and we always give equal importance to every matter that comes through our door. We want you to have legal representation that you can trust and that you feel confident with.
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Tribal Nations in Oklahoma
Almost all of Eastern Oklahoma is home to over 39 federally recognized tribal nations. These tribal nations are self-governed and have their own governments that administer justice on their lands in accordance with tribal traditions and laws. Within these nations, there are Five Civilized Tribes that are recognized by the federal government. These Five Civilized Tribes include the Cherokee, Choctaw, Chickasaw, Seminole, and Muscogee Creek Nations.
The Muscogee Creek Nation, which was at the center of the McGirt v Oklahoma decision, is the fourth largest tribe in the United States and has over 86,000 citizens as members. Each tribal group has its own laws, tribal governments, and traditions that apply to the members. For a long time, these tribes have felt that their tribal sovereignty has suffered due to their inability to exercise tribal jurisdiction and apply their own laws to tribal members within their lands.
Tribal Land in Oklahoma
The amount of land that Native American tribes claim ownership of covers almost one-half of Oklahoma and almost the entirety of Eastern Oklahoma. In McGirt v Oklahoma, the Supreme Court held that over 40% of Oklahoma is contained within tribal land, and as such is to be considered tribal land. Justice Neil Gorsuch came to this decision on the basis that Congress had never disestablished this reservation, and as such, anything within the reservation boundaries of the Muscogee (Creek) Nation should be afforded tribal sovereignty.
The boundaries of the Muscogee Creek Nation, like all other tribal lands, are still within the state boundaries of Oklahoma. As such, although Native American people living within this land have the ability to prosecute some crimes themselves, they are still protected by the rights offered to all Oklahoman citizens and are expected to carry out the same duties, such as voting, etc.
McGirt v Oklahoma was a case that questioned whether federal and state governments in Oklahoma have criminal jurisdiction to charge and prosecute Native Americans for alleged crimes committed on tribal land. Prior to this case, state criminal jurisdiction applied to all citizens living in Oklahoma, regardless of whether they were a member of a tribe and lived on tribal land.
The defendant, in this case, Jimcy McGirt, had been tried and convicted of crimes in an Oklahoma state court. He brought an appeal to the Court of Criminal Appeals on the basis that state law enforcement and state courts did not have Subject Matter Jurisdiction to charge him with a crime because he is a Native American person and the crime was committed on native lands.
The court rejected this appeal however he brought it to the United States Supreme Court. The Supreme Court ruled in his favor and found that the Muscogee Creek Nation does not fall under the criminal jurisdiction of the state of Oklahoma, and because the defendant was a member of the Seminole Nation tribe and his crimes occurred within this land, he could not be convicted by a state court. As such, the Supreme Court returned tribal sovereignty to the Muscogee Creek Nation and held that they should have the authority to try and prosecute crimes.
In this particular case, the defendant had committed serious crimes that fell under the Major Crimes Act. As such, federal law enforcement had the criminal jurisdiction to try the defendant in a federal court for his crimes. Based on this ruling, only the federal government has the authority to try and convict alleged Native American criminals that commit crimes on native land.
What Does The Supreme Court Decision Mean?
The Supreme Court case of McGirt v Oklahoma was significant for many reasons. Firstly, it gave tribal sovereignty back to Muscogee Creek Nation and other tribes within Oklahoma. This sovereignty meant that tribes now have the power to exercise their own criminal laws and handle criminal cases in accordance with these laws.
Secondly, the Supreme Court decision changed how criminal and civil jurisdiction operates within Oklahoma substantially. Before the decision, state law enforcement could arrest and charge individuals with crimes throughout the entire state and bring them through the state court process. However, after this decision, they no longer have the power to do this as easily. Although state law enforcement can help individual tribal members and help prevent crime in communities, they must work alongside tribal governments to ensure that their rights are being respected.
As a result of protecting tribal sovereignty and changing how criminal and civil jurisdiction works in Oklahoma, the Supreme Court decision has given more power to Native American people living in Native land. Native American people that have been charged with a crime by the state can now challenge Oklahoma courts on their criminal jurisdiction power.
Which Tribal Nations Are Protected by McGirt?
One of the main questions that came up for citizens of Oklahoma after the McGirt case was whether the court’s ruling applied only to the Muscogee Creek Nation, or whether it had further jurisdiction. The original Supreme Court case related only to the Muscogee Creek Nation, however, the decision handed down by Justice Gorsuch implied that the principle of law applied to other tribal nations in Oklahoma.
Justice Gorsuch held that because Muscogee Creek Nation had never been disestablished by Congress, they were entitled to have sovereignty over their land. Most tribal nations in Oklahoma have never been disestablished by Congress, and as a result of this ruling, most of these tribal nations have been given sovereign criminal jurisdiction over their land. The tribal nations protected by McGirt include:
- The Muscogee Creek Nation
- Seminole Nation
- Chickasaw Nation
- Choctaw Nation
- Cherokee Nation
Since the Supreme Court’s ruling, there have been subsequent court decisions strengthening the position of different tribes within Oklahoma. Many Judges in Oklahoma District Courts have held that the Five Civilized Tribes listed above have never been disestablished by Congress and their land remains tribal land for purposes of federal criminal law. As such, state governments no longer have criminal jurisdiction over these Tribal Nations.
Does Oklahoma State Court Have Criminal Jurisdiction Over Indian Country?
Following the decision in McGirt, the Oklahoma state courts no longer have jurisdiction to prosecute Native Americans that allegedly commit crimes within tribal lands. Originally, this decision applied to non-Native Americans who committed crimes against Native American people. However, in the more recent case of Oklahoma v. Castro-Huerta, the Supreme Court ruled that Oklahoma state and tribal governments have shared jurisdiction to try non-Native people accused of committing crimes against Native people within tribal land.
As a result of the recent Supreme Court decision, tribal sovereignty within Eastern Oklahoma has been limited. However, if you meet the following requirements, the state court will be unable to charge and prosecute you for crimes:
- The alleged crime occurred within Indian country, which includes all of the Five Tribes
- The accused person or the victim is a member of a federally recognized tribe
- The defendant or the victim has Indian blood
If you meet these requirements you will be subject to the criminal jurisdiction of the tribal or federal government and the state cannot bring criminal charges against you. If you have been charged with a crime by the state and you believe that you fall under the scope of the McGirt decision, you may be able to get your case dismissed.
Can The Federal Government Charge Me With a Crime?
The question at issue in McGirt was whether Oklahoma state courts have jurisdiction to try Native American people for alleged crimes committed on Native American land. The court ruled in favor of Native Americans and took power away from state courts however it did not affect federal jurisdiction. In relation to serious crimes that fall under the Major Crimes Act, such as murder, manslaughter, kidnapping, crimes against minors, aggravated sexual abuse, etc., the federal courts have exclusive jurisdiction to bring charges.
This means that the tribal government can choose to handle a case themselves, however, the federal government still reserves the right to bring separate criminal charges. As such, even if you fall under the scope of McGirt and qualify to have your case heard outside of a state court for a crime, the federal court still reserves the right to bring criminal charges against you for crimes under the Major Crimes Act. The same applies to all Tribal Nations throughout Oklahoma and the Native Americans living in these tribes.
Can I Get My Conviction Vacated?
When the Supreme Court decision of McGirt v Oklahoma was first handed down, it applied retroactively. This meant that any person who had previously been convicted of a crime by a state court in Oklahoma but fell under the scope of the McGirt decision could get their conviction vacated.
As such, many people who had been convicted of crimes began to challenge their decisions in court on the grounds of a lack of Subject Matter Jurisdiction, and get their cases thrown out. Federal law enforcement still reserved the right to charge people who had committed crimes within the Major Crimes Act, such as sex crimes, murder, manslaughter, crimes against children, etc. However, a huge number of people successfully challenged their convictions and were released from prison as a result. The federal authorities did not bring subsequent charges against a lot of people who were released from prison.
As a result of this, the Supreme Court held in a 2022 decision that the McGirt ruling could no longer be applied retroactively and that any past convictions made prior to the decision could no longer be challenged. This means that regardless of whether you fully qualify under McGirt but were convicted of a crime by the Oklahoma state courts when they had no criminal jurisdiction, you will be unable to get your conviction vacated.
If you filed a motion before this year’s Supreme Court decision, you may still be able to get your conviction vacated. However, the Supreme Court’s turn has made it a lot more difficult to get retroactive justice from the McGirt decision.
Do I Need to Hire a Lawyer For McGirt Cases?
The Supreme Court’s ruling in McGirt brings about many different issues for Native American communities, Oklahoma state officials, and federal agencies. Because of this ruling, these groups must work together to ensure that Native Americans are protected, sovereignty is protected, and justice is served for crimes committed in Oklahoma.
Because the ruling is recent and there are many different interests at play in these cases, the question of criminal jurisdiction can often get confused, which can result in those accused of crimes being mistreated by the law. If you are a Native American living within a federally recognized tribe in Oklahoma, the state cannot bring criminal charges against you. If you have been charged with a crime by the state, and believe you should be protected by McGirt, it is vital that you contact a lawyer.
Coming up against the state legal system without the backing of a criminal defense attorney can be a difficult task. An attorney can help ensure that your needs are listened to, your rights are protected, and that your case is dealt with in an appropriate court.
Because the McGirt decision only dealt with Muscogee Creek Nation, many members of other tribes are unsure as to whether they too were protected by McGirt. As has been made clear by subsequent state court decisions, the Supreme Court ruling applies to all Native American tribes and individuals that can meet the requirements outlined. As such, if you have been charged with a crime by the state of Oklahoma yet believe you are protected by McGirt, you may be eligible to get your case dismissed.
To get your case dismissed by a state court, you will need to submit a motion to dismiss to the Judge presiding over your case. To successfully get a case dismissal, you will need the assistance of a criminal defense attorney. Filing motions to the court can be quite complex and you will need to outline why your case should be dismissed, prove that you fall under the scope of McGirt, and provide evidence supporting your claim.
If the state prosecution argues against your motion to dismiss, you will need to fight to prove your case and demonstrate that you fall under the protection of McGirt. An experienced criminal defense attorney can help you demonstrate that you are legally protected by McGirt and that your case should be dismissed. Without legal assistance, this could prove to be quite difficult.
Federal Government Cases
Federal criminal law essentially operates as a separate legal system from state criminal law and relies on separate laws and statutes. As such, when the decision was handed down in McGirt, it did not apply to federal criminal matters. When federal courts bring criminal charges against an individual, the consequences can be far more severe. Federal authorities have access to almost unlimited resources which they can use to investigate and charge individuals with crimes.
They may use investigative agencies and tools to investigate your crimes, such as the FBI and undercover agents. By using these extensive resources, they are usually able to build strong cases against individuals which can be difficult to fight in court. As such, it is highly recommended that you seek help from a criminal defense attorney if you have been charged with a federal crime in Oklahoma. Most federal authorities do not want to bring cases to trial and would prefer to reach a plea deal outside of court. An experienced attorney can help achieve a fair plea deal on your behalf that reduces your sentence substantially.
If you fall under the jurisdiction of McGirt, you could be charged with the same crime twice. As noted above, tribal nations and federal law enforcement have concurrent jurisdiction, meaning that even if you are charged with a crime by a tribal government, you may also be charged with the same crime by the federal government. An experienced criminal defense lawyer with experience handling concurrent jurisdiction cases can help negotiate a fair deal to ensure that your sentence is not too harsh and try to achieve a fair plea deal.
Contact a Criminal Defense Lawyer at Cannon & Associates
Following the monumental decision in McGirt v Oklahoma on tribal sovereignty, many tribal members were left feeling confused as to whether their nation was also protected under the new law. The McGirt case dealt specifically with the Muscogee Creek Nation and held that the State of Oklahoma does not have jurisdiction to charge and convict Native Americans of crimes within their land.
However, the language of the Supreme Court decision made it clear that any tribal nation that has not been disestablished by Congress shall be awarded the same unique jurisdiction. As such, sovereignty has been returned to all Five Tribes of Oklahoma and they will be subject only to tribal and federal law. This means that if you have been charged with a crime by state law enforcement yet believe you fall under the scope of McGirt, you may be entitled to get your case dismissed.
The lawyers at Cannon & Associates have been handling criminal cases for many years and we have helped hundreds of clients get their cases dismissed or thrown out. We understand that the McGirt decision is quite confusing and many people are unsure as to whether they fall under its scope. Our law firm can help you understand the McGirt decision and advise you as to whether you fall under its protection.
Regardless of what legal issue you are facing, we want to ensure that your rights as a Native American are protected and that you are not wrongly thrown into the state criminal legal system.
Call our law firm today to schedule a free consultation at 405-591-3935.
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