Implications for Indian Defendants
Hi, I’m James Wirth. I am an attorney in Oklahoma. In a letter dated March 3rd, 2023, the Oklahoma Attorney General advised Doug Puit, the District 13 District Attorney, to continue prosecuting Indians despite a judge’s ruling that the state lacks jurisdiction. The issue relates to the McGirt ruling from the United States Supreme Court in 2020, which reviewed various tribes to determine whether they were disestablished. The precedent set by the ruling states that if a tribal reservation was established, it must be disestablished by congressional intent in order to be considered disestablished. Therefore, if a reservation was not disestablished, it remains in full effect to the present.
Ottawa County is one of the more interesting counties in Oklahoma when it deals with tribal nations because it has quite a few tribal reservations. Various tribes in the county assert that they were not disestablished, and therefore, Indians who are alleged to have committed crimes within that reservation cannot be prosecuted by the state. Instead, the crimes must be prosecuted either by the tribe or, if it’s a major crime, by the federal courts.
Dismissal of Over 100 Criminal Cases in Ottawa County
In Ottawa County, the prosecutor dismissed over 100 criminal cases filed against Indians for crimes that occurred on reservation land due to rulings by judges that dismissed many of these cases. The Attorney General’s office responded by asserting that the district attorney should be prosecuting these cases regardless of what the local judge says until they are ruled by a higher judge, the Oklahoma Court of Criminal Appeals, or perhaps the United States Supreme Court.
This suggestion is quite controversial as district attorneys have the obligation, just like the court has the obligation, to ensure that they have jurisdiction in that court before they file criminal charges and make a ruling on a case. There have been notices from the defendants and the tribes asserting that the state has no jurisdiction. Additionally, rulings from the judge agreed and stated that the state of Oklahoma lacks jurisdiction because this reservation was never disestablished and is still intact.
Multiple Tribes Suing the State of Oklahoma and Attorney Gentner Drummond
Now, multiple tribes, including the Miami tribe, the Ottawa tribe, the Eastern Shawnee tribe, and the Seneca Nation, all in Ottawa County, are suing in federal court. The Oklahoma Attorney General is telling the prosecutor there that he needs to continue to file criminal charges, even if the judges down there keep dismissing him. They will pick up the ones that they want and appeal those to the Oklahoma Court of Criminal Appeals. And there are various appeals still pending to decide this issue at the higher level.
But it’s just interesting that even though we have a ruling from the local judge and you have the United States Supreme Court opinion in McGirt, and you have the history of this district attorney dismissing these cases, that the Attorney General would come out and say, no, we need to continue filing these until somebody higher does so because it’s incumbent upon the prosecutor to ensure that jurisdiction is proper. And the local judge there has already determined the state doesn’t have jurisdiction, so it does kind of fly in the face of the law and makes it appear as though the prosecution, the AG, believes that they are above the law when they’re filing those. But that’s what’s currently going on in Ottawa County, and no doubt this will be resolved over time as further opinions come in from the Oklahoma Court of Criminal Appeals and perhaps even the United States Supreme Court.
If you are dealing with a case in Ottawa County or in Oklahoma, you’re going to want to talk about your specific facts and circumstances with an attorney privately and confidentially. To get that scheduled with a McGirt lawyer in Tulsa at my office, you can go online to MakeLawEasy.com.
