McGirt Has Caused Confusion For Oklahoma
Video Transcribed: The Oklahoma Court of Criminal Appeals has ruled that the Kiowa Comanche Apache Reservation was disestablished in 1900. I’m McGirt attorney James Wirth. We’ve got a decision from the Oklahoma Court of Criminal Appeals, clarifying some of these additional issues related to the United States Supreme Court’s decision in McGirt. In that McGirt case, the United States Supreme Court held that the Muscogee (Creek) Nation was never disestablished, and therefore remains intact.
That has since been applied to the other four of the main tribes and one additional tribe. But the decision that we have out now, this decision of December 30th, 2021, in the case of Martinez V State, has been published by the Oklahoma Court of Criminal Appeals, it’s 2021 OK 40.
And that deals with a defendant who is alleged to have committed a crime and been convicted based on what was historically within the boundaries of the Kiowa Comanche Apache Reservation.
Using the precedent in McGirt, which determines how you decide whether there has been disestablishment of a reservation, following that, the court found that it was disestablished. And essentially, the main thing in McGirt, is that in order to disestablish reservation it has to be unambiguous in a law passed by Congress.
And there are, other factors that you look into, but ultimately that one, was there a law passed by Congress, and is it unambiguous as to disestablish the reservation? That’s the main one. And that’s what carried the day in McGirt, is there was no unambiguous disestablishment that’s in the law, passed by Congress, signed by the President.
However, for this tribe, it’s a little bit different. There is a quote in the opinion, related to a law that passed, and it was part of the act of June 6th, 1900. And that includes, it says, “The said Comanche, Kiowa, and Apache Indians hereby seed, convey, transfer, relinquish, and surrender forever.
And absolutely without any reservation whatsoever, express or implied, all their claim, title, and interest of every kind and character, in and to the lands embraced by the following described tract of country in the Indian territory.”
And then it goes on to list that specific geographic area that we’re talking about for the Kiowa Comanche Apache Reservation. And that was done in consideration for $2 million and other things that went to the tribal members.
So Oklahoma Court of Criminal Appeals reviewed that and found that be an explicit disestablish of the reservation at that time. And therefore, that tribal reservation has not existed since 1900. Therefore, the State of Oklahoma did have jurisdiction to charge this defendant, and the court declined the defendant’s request to overturn that conviction, and it was affirmed.
So that resolves the issue, probably forever, but there could be appeals related to this. But this case is a little more clear-cut than some of the other ones that we’re dealing with, in finding that that reservation was disestablished.
If you’ve got questions about this decision, McGirt, or a case more specific to you, you’re going to want to talk to an attorney about that confidentially. Get that scheduled with somebody at my office. You can go online to makelaweasy.com.
