There Are More Factors than Just Registration with the Tribe
Video Transcribed: You don’t have to be a registered member of a tribe at the time the crime occurred for McGirt to be applicable to you. I’m Tulsa Attorney James Wirth. That is the topic that we have today.
It has to do with the timing of tribal membership and how that applies to a McGirt claim that the court lacks jurisdiction. The state court lacks jurisdiction to prosecute you. Previously, I did a video back in November of ’21. At that time, it was regarding the Robert Watkins case, and it had made it to the Oklahoma Court of Criminal Appeals.
And in that case, the defendant was not a registered member of a tribe at the time the crime occurred. But a couple of months after McGirt was decided by the United States Supreme Court, he applied for and received tribal membership. The trial court found that he was not an Indian for the purposes of a prosecution, and that was appealed to the Oklahoma Court of Criminal Appeals and they ultimately decided that he is an Indian, even though he was not a registered member of the tribe. The state of Oklahoma sought to appeal that to the United States Supreme Court, and that’s the news that we have now, is that the United States Supreme Court denied the Petition for Writ Certiorari on that.
So the decision of the Oklahoma Court of Criminal Appeals stands, and what that provides is that there are more factors than just registration with the tribe. So in this case, the way it was applied is they looked at other factors like social factors, that they live, that they have a social life with the Indian community, and that they receive the benefits of being an Indian. Did they receive healthcare benefits when they were young? Did they get that from their parents who were registered members of the tribe? So it’s more than just about the timing of tribal membership.
It is also about other circumstances that factor in. So that decision from the Oklahoma Court of Criminal Appeals stands, the Supreme Court of the United States decided not to hear it. And even if you were not a member of a tribe at the time the crime occurred, you may still be considered an Indian for the purposes of determining jurisdiction for prosecution of that crime.
If you’ve got any questions about criminal defense in Oklahoma or McGirt and how it applies to your circumstances, you’re going to want to talk to an Oklahoma McGirt lawyer about that privately and confidentially. To get that scheduled with an attorney at my office, you can go online to makelaweasy.com.
