Tahlequah Attorney BlogDoes McGirt Apply To All The Tribes Or Just The Creeks?

McGirt Is A Supreme Court Case That Re-Acknowledged That The Creek, Muskogee Creek Nation Still Had A Tribal Reservation


Video Transcribed: Does McGirt apply to all the tribes or just the Creeks? McGirt attorney with the Wirth Law Office out of Tahlequah here in Cherokee County. And I actually talked with a friend this week about, he had another county outside of Cherokee.

It was actually further central than eastern Oklahoma. And there’s a well-known kind of reservation there, or was at one point. And he had a client. They were talking with the DA’s office, and McGirt came up.

For those of you who haven’t heard or seen any of the videos on McGirt, McGirt is a Supreme Court case that came out this summer that basically re-acknowledged that the Creek, Muskogee Creek Nation still had a tribal reservation. The reason that’s important is because if you are a Native American member, you have a CDIB and are enrolled in a tribe, doesn’t have to be the Creek Nation, just any tribe that’s federally recognized.

And if either you or the alleged victim on your crime, that applies to you if either you or them are Native, then the state can’t charge you. It has to go tribal, or it has to go federal. And that doesn’t mean that it’s only Creeks on the Creek Nation. It’s any federally recognized tribe on Creek Nation or in the reservation.

Now, while McGirt only applied to the Creek Nation, the same type of treaties were established with all of the five tribes. It was someone else that was Seminole just got an appellate ruling that the Seminole Nation is in fact part of that as well. In truth, something we all know, and I will give credit where credit’s due.

There are DAs out there who are acknowledging this and not making kind of the false claim in court, “Well, this only applies to the Creeks, not the Cherokees,” for instance.

There are a lot of DAs that are saying, “We’re not going to do that. That’s not true. Technically, McGirt only applied to the Creeks, but we know that the Cherokees have a reservation based on McGirt, too, or Choctaws or Chickasaws or, now, Seminole.”

The ruling in McGirt applied to all of the five tribes. Now, when you get out beyond that, let’s say the Osage, for instance. The Osage had a tribe which became their Osage County.

It’s a huge county in Oklahoma because it was originally the tribal reservation boundaries. The Osage, there’s a case out there, I want to say in the nineties, maybe 1990. It’s the Osage Nation v. Irby, I believe, where the court said that there was no Osage reservation.

It had been disestablished by Congress. Now, the Osage weren’t part of the same treaty negotiations like the Cherokee, Chickasaw, Seminole, Choctaw, and Creeks were. They saw what was going on, and in an effort to kind of protect themselves, decided to be proactive and go into the allotment system, like on their own, which kind of, unfortunately, with the case law out there that’s been established has been said to show that Congress actually disestablished the Osage tribe.

Now, after McGirt, maybe that’ll come up. Some of the reasons they used in the Osage case were also discussed in McGirt, but they applied them differently in McGirt. Long story on that is that as of right now, if you are in Osage County and are a Native American member, the McGirt ruling won’t apply to you in Osage County. Same with, let’s for instance, any of the Western tribes.

Let’s go Cheyenne Arapaho, maybe, or let’s say you’re in Payne County. Most of Oklahoma had tribes there and had reservations set up, but the McGirt ruling is very specific to just the five tribes. Really Eastern Oklahoma, if you’re outside of that area, then McGirt’s not going to be able to help you.

If you get, oh, let’s just say a misdemeanor, a DUI in Osage County, the fact that it used to be an Osage reservation and you’re Native isn’t going to help you. You’re not going to be able to use McGirt to get out of that case. If you’re south of Osage, if you’re in Tulsa and you’re in the part of Tulsa that was Creek Nation, then yeah.

McGirt can help you if you’re over in Nowata, which is not too far from Osage, that’s Cherokee, and Cherokees, although there’s not a court decision yet, we all acknowledge that the Cherokees will have a reservation claim. They’re just like the Creeks do down in Tulsa and Okmulgee and Muskogee.

So if you are a native and get pulled over and charged with something in Nowata County, then, yeah, McGirt is going to apply. But one thing I think that even attorneys were kind of confused about is McGirt only applied to the Creeks and to the other five tribes because of the way their treaties were signed and the way they were forced into the Allotment Act. Since the Osage voluntarily did it, that was part of the Irby case’s decision. They talked about how this showed a conscious decision to disestablish the tribe, basically.

That’s kind of the long and short of it. If you have questions on a case and you want to call us, we do free consultations. You can either call, come in. You can go to TahlequahAttorney.com and send us a little web email kind of thing, and we’ll call you back and do that free consult. And we can see. Who knows? Maybe if we look at the map, it turns out where you were is part of one of these reservation lands.

There’s still a lot going on with McGirt. There’s still a lot trying to be figured out on it, so everything’s kind of evolving day by day. But it’s something to look into. Give a Tahlequah criminal attorney a call. We might be able to help.

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