Tahlequah Attorney BlogDoes McGirt Apply To Everyone?

McGirt Has Greatly Impacted Oklahoma

Video Transcribed: So does McGirt apply to everyone? Hi, my name is Ryan Cannonie. I’m an attorney in Tahlequah. And one question I keep getting is, “Hey, I want to do that McGirt law.

I want to apply for the McGirt law, or I want to transfer for the McGirt law.” Well, first off McGirt is not a law, it’s a case. And second, it only applied to the Muscogee Nation. They’ve dropped the Creek off of it, so just Muscogee Nation. However, after the McGirt decision, there were several others decisions that came through, such as the Hogner decision for the Cherokees. Sizemore, Bosse, these are for other tribes.

Now, just because there are certain tribes that have been declared reservations and not really declared, I guess rediscovered they are reservations doesn’t mean this applies to every case. It doesn’t mean it applies to every tribe.

So, if you’re in an area where there’s not a tribe that has been declared a reservation by an appellate court, then no, McGirt is not going to really apply to you. In fact, what it means is that you will not be able to piggyback on that decision and be able to get out of jail, which is what a lot of people are trying to do.

Now, does that mean that you’re in an area that’s never going to be a reservation? Well, no because a lot of the other tribes are now going through their treaties. Attorneys are starting to look through it, but it takes a lot of time and a lot of effort to go through and look through all these treaty documents and history to determine if there was a reservation and if it’s still maintained.

For example, the Osage Nation. Now the Osage County, massive county because it was a large Indian reservation. And people talk about the Osage. The Osage have more rights to different things than even the Cherokees or others do.

Well, that’s because of the Osage, and there’s actually a case on this. I believe it’s called Irby came out in the ’90s where someone tried to do the same thing with the Osage that McGirt did with the Muscogee Nation and to try to say that the tribal reservation was still intact and the court said, “No, it’s not” and they give these reasons. Now when McGirt came along, some of those reasons are no longer still being used by the court. So there are some people who think maybe there should be another attempt to say that Osage have a reservation, but as it stands today, they don’t.

And for one reason on that was the court found that their reservation had been disestablished, that they had contracted away and disestablished their reservation, and Congress had acted on that. Whereas with the Cherokees, Chickasaw, Muscogee, Seminole, and Choctaws, that never happened.

So not all tribes still have a reservation. And at this point, we don’t know how many are still out there and how many are not. So when you come with a question to your attorney or to a potential attorney, the issue is, “Well, where did this alleged crime take place? Where are we talking about? What location and are you a tribal member? Is the other person a tribal member?”

So before you can just like slap McGirt’s name on a motion, put it through, and get out, you actually have to have it apply to your situation. And if you’re outside of the five tribes right now, unfortunately, no appellate court, this Oklahoma Court of Criminal Appeals, Tenth Circuit Court, Supreme Court, even Supreme Court of Oklahoma on the civil side have designated any other tribes as having a reservation.

Now, there have been some decisions in lower courts that have said, “Well, this tribe still has a reservation. I’m dismissing.” Those aren’t controlling the same way that an upper appellate court decision is.

If you have questions about this, if you want to know if maybe one of these McGirt, Hogner, Bosse, Sizemore, or these other cases apply to you, then please give us a call, go online tahlequahattorney.com, shoot us a web form.

We can talk to you and we may be able to give you good news. We may be able to say, “Hey, you might have to wait a little bit on this.” Either way, we can at least help you figure out what the solution and answer are at this point. Thank you.

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