Tahlequah Attorney BlogYou Filed Your McGirt Motion – Why Are You Still in Jail?

McGirt Only Deals With Creek Nation Reservation

Video Transcribed:  You filed your McGirt motion. You’ve shown you’re Indian. You’ve shown it was on what’s now the reservation. Why are you still in jail? My name is Ryan Cannonie, I am the Tahlequah Criminal Defense Attorney for the Wirth Law Office in Tahlequah.

And this is something that’s come up a lot recently. It seems like a lot of people are calling about the McGirt decision either for their own cases or for family members’ cases. And once we get to talking, once it’s filed, all of a sudden, everything just kind of stops. And they’re really confused as to why.

So, I always try to explain to my clients everything about McGirt before we start. I am probably over-explain. If you ever talk to one of my clients, they can tell you that. But I feel it’s important that everyone really knows what they’re getting into with this.

So, McGirt only deals with Creek Nation Reservation. That’s it. The reason for the decision, the basis the Supreme Court used can apply to all five tribes, but the court, not just the Supreme Court, but any court can only make a ruling based on what’s in front of them.

And at the time of McGirt, the only two cases going up Murphy and McGirt were about the Creek Nation. So, while the court’s ruling, we all know, applies to all five tribes. And by us all, I mean, even the Attorney General has made comments about this. As of right now, there’s not a ruling on all five.

I believe there is one out for the Choctaws now. But we’re still waiting on the Cherokee one. And the Cherokee one’s going to be a big one. The reason for that is the Cherokees have a large portion of Eastern Oklahoma under their reservation.

And once the Cherokee decision comes down it’s going to require a lot of federal prosecutors to pick up these cases. A lot of tribal prosecutors to pick up these cases. The courts are going to be kind of flooded more so than they already are with these McGirt motions. So, it hasn’t come down yet. No one really knows why. If there’s make sure everything’s in place before its decision’s made, or if it’s just the courts being slow. No one really knows.

But the problem is if you are Cherokee, let’s say, I’m your attorney, you come to me, I file a motion that the state courts did not have jurisdiction to prosecute you. What the state is going to come back and say, in some DA districts, they’re saying, “Well, McGirt was only for Creek.”

In others, they’re saying, “Well, we’re just going to pass this because the Cherokee decision is called Hogner’s. The defendant’s Travis Hogner out of Delaware County. That’s the case everyone’s waiting for. It hasn’t come down yet. So, we don’t know what will happen… We know what’s going to happen. We just have to wait for that decision.

Regardless, whatever excuse they use, a lot of DA’s offices are using the fact that there’s not an appellate ruling for the Cherokees as a reason to continue these cases out. So, while you come to your attorney, we have our motion, we can stand up there.

You can even get an amicus brief from the tribe explaining it. Until there’s an appellate ruling, then the courts and most places are not going to just dismiss against you. Now, some judges have been doing this.

I’ve heard some up North are doing this. It’s really kind of a judge by judge decision. IN the DA’s offices, some are fighting these a lot more than others are. It really just kind of depends. There’s a lot of moving parts in this whole thing right now.

But I wanted to bring this up because a lot of people are getting frustrated with the pace of their cases. Especially when they have a loved one who’s in custody, or in prison, why they’re not being released. And the simple fact is, they probably won’t be released until this appellate decision comes down.

Now, right now, a lot of people are putting cases off until February because they’re really hoping there’s a decision by then. There’s no timetable on this. It’s not like there’s a countdown clock. It’s just these cases keep getting passed. So, a lot of judges and courts are putting them to February to wait for this decision out of Delaware County.

Now, once that decision comes down, we all believe because of McGirt it’s going to come down showing the Cherokees have a reservation then, at that point, most of these cases can keep working their way through court. People can get out of jail. People can get out of prison.

Then, you can start to get back on with your lives. So this is kind of a video to explain that, but also to tell people, even some of my own clients I have to tell them on the phone, that just be patient.

I can’t make it go faster. They can’t make it go faster. It’s up to some judges who are hearing the appellate decision… Or riding the appellate decision, I should say.

But if you have questions about McGirt, if you have questions about how it will affect, not just yourself, but your loved ones, if they have cases, they’re on probation, they’re in prison, in jail even, how it’ll affect them. Then, please give us a call, go to our website, tahlequahattorney.com, send us a web form. We’ll get back to you as soon as we can. And, hopefully, we can help you

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