McGirt Changed Oklahoma Forever
Video Transcribed: Does the McGirt case just apply to those charged with a crime? No. My name is Ryan Cannonie, I am the Tahlequah criminal defense attorney for the Wirth Law Office in Tahlequah. I know we’ve done a lot of McGirt videos, I’ve done a lot of McGirt videos, but we still get tons of calls about this.
I can’t overstate how big of a change the McGirt decision this summer was, is, and will continue to be for Oklahoma law, not only criminal but civil. There’s a lot of civil implications of it, but criminally especially. We’re still seeing it filter through as more and more travel reservations are actually recognized under Oklahoma law.
Now, one thing that a lot of the videos focus on is the people who are charged with a crime. That means the defendant in a case. The reason for that is those are generally the people that hire us, so that’s who we’re making some of these videos for, but there’s another person in the case or persons that also McGirt, it will impact them as well.
That other person is the victim or alleged victim in a case. Now, when you have a McGirt issue, for those who are unfamiliar with it, basically, it means that because of someone’s Native American status, and once again, for McGirt, Native American has a certified degree of Indian blood, is enrolled in a tribe, and the crime or alleged crime took place upon a Native American reservation, allotment, some other Native American land.
For those purposes, that’s all we’re talking about when we say “Native American,” we’re not… Oh, the tribe, it has to be federally recognized, too. The big, important part there. We’re talking about just those members.
But if someone qualifies for that, then the state court had no jurisdiction, no authority to do their case, and so they can file a motion to either dismiss, if it’s a pending case, I’ve actually got some of those done here recently for some of my Creek clients, or you can file a motion for post-conviction relief, meaning that they’re already convicted, but they want the court to basically go back in and re-look at an issue in the case, and then allows the case to be dismissed. I filed several of these for some of my clients, mostly Cherokee, and we’re still waiting for some more information on those, so we’re still waiting on those.
But when it comes down to the McGirt decision, it doesn’t just impact defendants or those convicted. It also impacts victims. If you have a case, let’s say you’ve been charged with something and you’re not a Native American, but the alleged victim is, then McGirt would apply.
It’s important you know this because that means that it won’t be handled by state courts. The breakdown when it goes is if it’s native-on-native crime, meaning Indian-on-Indian, the felonies are generally going to be to the federal prosecutor, the US attorney’s office.
That’ll go through federal court. Tribal will get misdemeanor offenses. If it’s a native-on-non-native crime, then same breakdown, federal for felonies, tribal for misdemeanors. If it’s non-Indian-on-an-Indian, then that’s going to be federal for both felonies and misdemeanors.
What does this mean to you? Well, it means a couple of things. The first thing is that even as a non-native member of a tribe, as a non-native person, you may not be able to use state court systems for any criminal offense that’s charged on you.
You may be looking at a different court system. This is important to know because not only do different courts do use different law, the federal use different federal statutes which are not the same as the state, tribals use their own tribal statutes, these are different than the state, but you also have to find an attorney who’s licensed to practice in those areas.
Now, I am licensed in both the state of Oklahoma courts and Cherokee Nation courts working on another tribe as we speak. We have attorneys that are also licensed in federal court within the firm. You actually have to have an attorney who is allowed to represent you in whichever court you’re going to be charged in.
Also, some other big things on that: State courts generally have a little bit more leeway on some of their sentencing guidelines, prosecutors and state court. When I was a prosecutor, there were times the feds would come to us and say, “Hey, we want you to file this here.
This person has been cooperative and we want you to send them to prison, but we don’t want you to send them to prison as long as they would serve in federal court because they helped us out,” something along those lines, and so cases will be run through state court rather than federal because the federal prosecutors didn’t have as much leeway as we did when it came to plea offers and sentencing recommendations, so there’s a lot to consider when it comes to McGirt and not just for someone who is native and charged with a crime, but for anyone who has an alleged native victim of a crime.
But how does this apply to people who have already been convicted? Well, not every agency took demographic information to whether or not someone is native or not, so there’s a lot of investigations going on right now to find out who is a native victim and who isn’t because as much as the state authorities were talking about how this is going to be terrible, all these people were released from prison, they were a lot of times focused on the people who were native and charged and convicted of a crime. The number of people who have a native victim is going to be huge as well. I mean, it’s going to be a massive amount of people, especially when you start talking about Eastern Oklahoma.
These are all things to consider if you’ve been charged, if you’ve already been convicted, to try to figure out if the alleged victim is a Native American. If you’ve already been convicted and the statute of limitations is run for whatever the offense was in both federal or tribal and you can prove that the person that was the victim is Native American, then you can file your McGirt and try to get your case dismissed.
If the statute of limitations, meaning the ability of another court to prosecute you has already run, then you’re probably not going to get recharged, so it’s really important to know the demographics of the alleged victims in cases.
If you have more questions about this, if you have a McGirt issue, if you’re wanting to look into possibly filing for dismissal of your case or filing for post-conviction relief and dismissal of your case, then please, give us a call. Go to our website, tahlequahattorney.com, send us a message there, and we’ll get back to you as soon as we can.