Most of Northeast Oklahoma, including most of Tulsa County and all of many of the surrounding counties, is all part of the Muskogee Creek Tribal Reservation, which means that native Americans, whether they’re members of that tribe or any other tribe, are going to be subject to criminal filings against them for crimes that occur in that area. Because of that, we’re looking at the differences between state law and tribal law now that we’re about to see a lot more cases in tribal court, as we’re seeing a lot of cases thrown out of state court. One of the more interesting ones is possession of drug paraphernalia.

Oklahoma has one of the highest incarceration rates in the nation. It was actually number one for women and number one for men for a period of time. Now I believe we’re down to number two in the nation for prison population. There are many reasons that go into that, but I’ve got an example of a case that gets you an idea on why some people are happy that the McGirt decision came out and divested the state courts with authority to charge certain Indians for crimes in Northeast, Oklahoma.

In a child deprived case, that is where the state of Oklahoma or another government entity has taken children out of the home, put them into state or governmental custody in order to protect them from parents who have deprived them, and Indian law has always been a big deal in deprived child cases in Oklahoma, even though when CPS, Child Protective Services, DH, Department of Human Services, even when they start their investigations, that’s one of the first thing they’re looking into is are these Indian children? Is this family a member of a tribe? Are they eligible to be a member of a tribe? Because ICWA applies, Indian Child Welfare Act applies, and that brings in Federal Law that greatly changes how the cases are affected.

Let’s touch on the jurisdiction. So this case only deals with the Muscogee Creek Nation, right? So I’ve got that here in green. That’s the territory that includes most of Tulsa, all of Okmulgee, surrounding counties. We’re talking about McIntosh, Creek County, Wagoner County, Muskogee County, Okfuskee County, McIntosh County. The green space there, that’s all that we’re talking about. So the case technically for precedent purposes is limited here, but all of the five civilized tribes there, Cherokee tribe, the Choctaw, Chickasaw, Seminole, they all had very similar treaties, 1866 treaties. They were all similarly treated when Oklahoma became a state. So although the McGirt decision doesn’t directly apply precedent, if you apply the same rules that were applied in McGirt to the other tribes, it’s going to show that they were not disestablished either. So now suddenly we’ve gone from that green area to most of Northeast Oklahoma for all the colored areas here. And although it’s not binding precedent, it’s going to be next to impossible to say they should be treated differently.

The McGirt v Oklahoma decision from the US Supreme court greatly expanded the current understanding of what tribal reservation is in Northeast Oklahoma, so that most of Northeast Oklahoma is reservation land. That divested the state court in prosecuting tribal members for crimes occurring in that territory and non-tribal members for crimes against tribal members or Indians. Most of those cases are subject to be vacated, to go away, and a lot of the current cases are being dismissed and moved off to either tribal court or to federal court.

So the Attorney General of Oklahoma has released a document entitled the Murphy McGirt agreement in principle, where he claims that there’s been some outlines on what a proposal would be for congressional legislation to resolve some of the issues with the aftermath of the McGirt decision. So in the McGirt decision, the United States Supreme Court ruled that the Muskogee Creek nation was never disestablished when Oklahoma statehood came, and therefore most of Tulsa and the surrounding counties are still on Muskogee Creek reservation. That decision equally applies, or at least the rationale for doing that, equally applies to all five civilized tribes in Oklahoma, which means that most of Northeast Oklahoma is now considered to be and to have always have been reservation land, although we didn’t know it until this decision.

McGirt v Oklahoma held that the Muskogee Creek nation was never disestablished, which means that most of Tulsa and surrounding counties are actually tribal reservation land, where the state lacked subject matter jurisdiction to prosecute Indians or crimes committed against Indians.

United States Supreme Court in the Mcgirt Case on July 9th of 2020 Decided the Muskogee Creek Nation Reservation of the Treaty of 1866 Was Never Disestablished When Oklahoma Became a State

How do you determine if a victim is an Indian under the McGirt Precedent in Oklahoma? I’m Oklahoma attorney James Wirth and we’re about to talk about how to find out if a victim of a crime is an Indian, as it relates to the law. This is all dealing with, again, the McGirt decision that is having huge ramifications in Oklahoma, regarding jurisdiction of state courts to prosecute people. I’m in the McGirt case, the court found that the 1866 boundaries of the Muskogee Creek Nation were never disestablished when Oklahoma became a state. So, that all, almost all of Tulsa County and surrounding counties are still reservation land and that same precedent applied to the remainder of the Five Civilized Tribes, means that most of Northeast Oklahoma is actually Indian territory, which means that the state has limited jurisdiction to charge people. What the Major Crimes Act says, is that for crimes committed on tribal land, by Native Americans or Indians, that the state court has no jurisdiction over them. For crimes committed against Indians on tribal land, reservation land, the state government has no jurisdiction over them. It has to be charged in federal court.

First off, you need to be a member or be able to show that you are recognized as a member of a tribe by an Indian tribe or by the federal government. And second, you also have to show some degree of Indian blood, and that’s based on the test in the case of Prentiss, back from 2001, and it determined that both of those factors have to be met. If the other side of the state can prove that one of those is not met, then you’re not an Indian as it’s described in the Act and the state does have the authority to prosecute you for offenses.

Crimes not in the Major Crimes Act were not involved in the McGirt case or in the Murphy case, the precedent set in the McGirt case that the tribal boundaries from 1866 were never disestablished triggers another list of crimes, which means that for anybody charged with those crimes in Northeast Oklahoma, the part that’s now considered reservation land, if it’s not under the Major Crimes Act, that means it must be charged in federal court, it still can’t be charged in state court, has to be charged in tribal court.

July 9th of 2020, the US Supreme Court made an opinion in the McGirt case that found that the Northeast half of Oklahoma is actually tribal land. It’s actually part of a tribal reservations from the five tribes How does that affect medical marijuana businesses and medical marijuana itself in Oklahoma? There’s still some debate on that. There’s a lot of people that say it’s not going to have any effect at all. There’s a lot of people that are screaming that it changes everything.

The United States Supreme Court entered a decision that is probably the most monumental decision ever to affect the state of Oklahoma. It has to do with the Muscogee Creek tribe and its reservation. Essentially, what it found is that the tribal reservation is way more expansive than previously thought. In fact, it actually encompasses most of Northeast Oklahoma putting much of the state, including 1.8 million of its residents inside the jurisdictional boundaries of the Muscogee Creek Nation reservation.