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Welcome to the Rez - McGirt's Law - Robert Don Gifford

2023 presentation by Robert Don Gifford (Cherokee) on the effects of the U.S. Supreme Court opinion in McGirt v. Oklahoma (2020) and the laws of "Indian Country" as to jurisdiction over Native American Tribal Members. The McGirt opinion has resulted in more than half of Oklahoma's 77 counties to be considered a Reservation and limiting the State's Jurisdiction.

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Welcome to the Rez - McGirt's Law - Robert Don Gifford

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  1. Welcome to the Rez:Murphy’sMcGirt’s Law Robert “Bobby Don” Gifford Founder and Attorney, GIFFORD LAW, PLLC Tribal Court Judge/Justice Comanche, Iowa, Kaw, Miami, Seminole

  2. Tribes original to Oklahoma • Comanche • Kiowa • Osage • Wichita • Caddo

  3. 39 Tribes in Oklahoma Today Absentee Shawnee Tribe of Oklahoma; Alabama Quassarte Tribal Town; Apache Tribe of Oklahoma; Caddo Nation; Cherokee Nation of Oklahoma; Cheyenne & Arapaho Tribes of Oklahoma; Chickasaw Nation; Choctaw Nation of Oklahoma; Citizen Potawatomi Nation; Comanche Nation of Oklahoma; Delaware Nation; Delaware Tribe of Indians; Eastern Shawnee Tribe of Oklahoma; Fort Sill Apache Tribe; Iowa Tribe of Oklahoma; Kaw Nation; Kialegee Tribal Town; Kickapoo Tribe of Oklahoma; Kiowa Tribe of Oklahoma; Miami Tribe of Oklahoma; Modoc Tribe of Oklahoma; Muscogee (Creek) Nation; Osage Nation of Oklahoma; Otoe-Missouria Tribe of Indians; Ottawa Tribe of Oklahoma; Pawnee Nation of Oklahoma; Peoria Tribe of Indians of Oklahoma; Ponca Nation of Oklahoma; Quapaw Tribe of Oklahoma; Sac and Fox Nation of Oklahoma; Seminole Nation of Oklahoma; Seneca-Cayuga Tribe of Oklahoma; Shawnee Tribe of Oklahoma; Thlopthlocco Tribal Town; Tonkawa Tribe of Oklahoma; United Keetoowah Band of Cherokees; Wichita & Affiliated Tribes; Wyandotte Nation; Euchee (Yuchi) Tribe of Indians

  4. A Few Basics • Going back to 1832: Tribes are considered, in the words of Chief Justice John Marshall to be “domestic, dependent sovereigns.” Worcester v. Georgia, 31 U.S. 515 (1832); • Indian Tribes are beyond the authority of states unless Congress has granted authority • Going back to 1989 - State v. Klindt, 1989 OK CR 75, ¶ 3, 782 P.2d 401, 403 ("[T]he State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.")

  5. Are we in Indian Country? • Not In Indian Country • In Indian Country No Tribal Criminal Jurisdiction No Federal Criminal Jurisdiction, UNLESS Crime of General Applicability There might be Tribal Criminal Jurisdiction There might be Federal Criminal Jurisdiction Need to answer more questions

  6. Who is considered an “Indian” • Member of a “federally recognized tribe.” • Lists of acknowledged tribes are periodically published in the Federal Record by the Secretary of the Interior pursuant to the mandate of 25 CFR §  83.6(b). See 53 Fed. Reg. 52829 • Is not race-based but arises from "political status." SeeUnited States v. Antelope, 430 U.S. 641 (1977); Morton v. Mancari, 417 U.S. 535 (1974). • Each tribe determine who can be a tribal member (blood quantum)

  7. Indian or Non-Indian? • No Federal Statutory Definition of “Indian” • Morton v. Mancari (1974) test: • 1) some degree of Indian Blood – federally recognized tribe; and • 2) Individual is recognized by the fed. government or tribe as an Indian

  8. “Recognized as an Indian” - • Indicia of Tribal or Federal Recognition of Individual • Indian status follows tribe; termination • Proof of Indian Status • BIA Records; CIB; Formal enrollment not always required, federal or tribal benefits • United States v. LaBuff, CA10-30274 (10/13/11)

  9. So, is there a requisite blood quantum to be an Indian • NO - To be determined by a tribe; • United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012). • “To find that a person is an Indian the court must first make factual findings that the person has “some Indian blood” and, second, that the person is “recognized as an Indian by a tribe or by the federal government.” Id. at 1280 (citations omitted). United States v. Keys, 103 F.3d 758, 761 (9th Cir.1996) (same test); United States v. Torres, 733 F.2d 449 (7th Cir.1984) (same).”

  10. What is “Indian Country”

  11. “Indian Country” defined • The term Indian country is defined in 18 U.S.C. § 1151 and 40 C.F.R. § 171.3 as: • all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation; • all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and • all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. • Consistent with the statutory definition of Indian country, as well as federal case law interpreting this statutory language, lands held by the federal government in trust for Indian tribes that exist outside of formal reservations are informal reservations and, thus, are Indian country.

  12. “Indian Country” • Reservation – all land within reservation boundaries including privately owned land – 18 USC 1151(a) • “Dependent Indian Community” – 18 USC 1151(b) • Allotments – 18 USC 1151(c) • Lands held in “Trust”

  13. Why does it matter? • State has very limited jurisdiction in “Indian Country.” See Casto-Huerta. • Tribes can only prosecute misdemeanors against tribal members • Feds have the jurisdiction to prosecute felonies • Civil Jurisdiction: It depends….

  14. 1978 • Oliphant v. Suquamish Tribe – 435 US 191 - No tribal criminal jurisdiction over non-Indians • U.S. v. Wheeler – 435 US 313 – no Double Jeopardy problem for subsequent tribal/federal prosecutions

  15. 1978 • State v. Littlechief, 573 P.2d 263 (Okla. Crim.) – held that state did not have jurisdiction over Indian on Indian crime on Kiowa allotment. • Oklahoma AG agreed: Okla. A.G. Op. 78-176.

  16. Post-Littlechief Cases • C.M.G. v. State, 594 P.2d 798 (Okla. Crim. 1979), cert. den. 444 US 992 – Chilocco Indian School is Indian country subject to federal jurisdiction. • Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990) – Cherokee tribal trust land is Indian country where state criminal law does not apply to Indian suspects.

  17. 1991 – Tribal Jurisdiction over any Indian • The “Duro-fix” legislation • Tribes DO have criminal jurisdiction over non-member Indians – 25 USC § 1301(2)

  18. Tribal Law & Order Act (TLOA) • Signed into law by President Obama on July 29, 2010. • Public Law 111-211.

  19. TLOA Section 234(a)-(b) • Amends Indian Civil Rights Act (25 USC § 1302). • Prior to TLOA: tribal courts limited to one year per count. • Now: tribal courts limited to 3 years per count and 9 years per case.

  20. TLOA Section 234(a)-(b) • Qualification- Tribal courts exercising felony jurisdiction must provide: • State Bar licensed indigent counsel, • Judge having received “sufficient training” to conduct criminal trial • Tribal criminal laws, rules must be publicly available • Proceedings must be recorded

  21. Always ask these 4 questions, in this order: • Where did the crime occur? • Is it “Indian Country” or not? • Who is the suspect? • Indian or Non-Indian? • Who is the victim? • Indian or Non-Indian? • What did they do? • Is it a Major Crime?

  22. Jimcy McGirt v. OklahomaUnited States Supreme Court140 S.Ct. 2452(2020) On the far end of the Trail of Tears was a promise . . . Today we are asked whether the land these treaties promised remains an Indian reservation for the purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”

  23. In case you were asleep… • As of June 2020, the Muscogee (Creek) Nation Reservation remains intact (11 Counties) • Tulsa County, Rogers County, Creek County, Mayes County, Wagoner County, Muskogee County, Okmulgee County • The State of Oklahoma now has extremely limited jurisdiction; • Tribal Courts and Federal Courts • Criminal, AND civil, taxation, property titles, oil & gas, etc. etc.

  24. “[C]ourts have no proper role in the adjustment of reservation borders. Mustering the broad social consensus required to pass new legislation is a deliberately hard business under our Constitution. Faced with this daunting task, Congress sometimes might wish an inconvenient reservation would simply disappear. Short of that, legislators might seek to pass laws that tiptoe to the edge of disestablishment and hope that judges – facing no possibility of electoral consequences themselves – will deliver the final push. But wishes don’t make for laws, and saving the political branches the embarrassment of disestablishing a reservation is not one of our constitutionally assigned prerogatives.” 5-4 decision Majority (Gorsuch joined by RBG, Breyer, Sotomayor, and Kagan) Dissent (Robert, joined by Alito, Kavanaugh, Thomas)

  25. Once a reservation is established, only Congress can dimmish or disestablish it. Doing so requires a clear expression of congressional intent. Does McGirt apply to the “Five Tribes” (formerly known at the “Five Civilized Tribes”)

  26. But wait, there’s more…The Cherokee Nation (14 Counties) • Hogner v. State, 2021 OK CR 4 • All of Adair, Cherokee, Craig, Nowata, Sequoyah, and Washington Counties, and portions of Delaware, Mayes, McIntosh, Muskogee, Ottawa, Rogers, Tulsa and Wagoner Counties; • The 1833 Cherokee treaty "solemnly pledged" a "guarantee" of seven million acres to the Cherokee on new lands in the West "forever".

  27. Choctaw Nation • Sizemore v. State, 2021 OK CR 6 (04/01/2021) • Land set aside for the Choctaw Nation, beginning with the Treaty of Dancing Rabbit Creek in 1830, as reaffirmed and modified by the Treaty of Washington in 1855, and further modified by the post-civil war Treaty of Washington in 1866, established a Choctaw Reservation.

  28. Seminole Nation • Grayson v. State, 2021 OK CR 8 • The Seminole were removed to Indian Territory following the Treaty of Payne's Landing in 1832. They were eventually granted a reservation, but after subsequent land cessations, these lands were allotted following the Seminole Agreement of 1909. Today, the tribe owns 372 acres of federal trust land and approximately 53 acres of fee simple land. An additional 35,443 allotted acres supplement the tribal land base. • Tribal Complex/Headquarters in Wewoka • Tribal Courtrecently relocated from the Mekusukey Mission near Seminole to Wewoka (“Barking Waters”).

  29. Chickasaw Nation(all or part of 13 counties) • Bosse v. State, 2021 OK CR 3 (03/11/2021) • Byran, Carter, Coal, Garvin, Grady, Jefferson, Johnston, Love, McClain, Marshall, Murray, Pontotoc, and Stephens counties • Stay granted by U.S. Supreme Court • Issue: Shaun Bosse is NOT Native American, but his victims were.

  30. Eastern Shawnee (Ottawa County)(Ottawa County) • State v. Harry William Hull, Jr., CF-2019-00218 • Ottawa County District Court found Reservation remained. • State appealed – later dismissed • District Court Stands

  31. Ottawa and Peoria Tribes(Ottawa County) • State v. Winston WhitecrowBrester, , 2023-OK CR-10 (S-2021-209) • Decided May 11, 2023 • Ottawa County District Court found Reservation remained. • Court found the reservations of the tribe remain intact

  32. 1968 - Indian Civil Rights Act • Indian Civil Rights Act – 25 USC 1302 • Statutorily imposes most of the provisions of the Bill of Rights on tribal courts • Limited tribal court criminal sentences to misdemeanor level.

  33. Crimes of General Application • Those offenses in which there is a federal interest no matter where they occur and no matter who commits them: • Firearms offenses • Narcotics offenses • Border crimes • Counterfeiting • Bank Robbery • Postal Offenses • Assault on a Federal Officer*

  34. Domestic ViolenceProtective Orders • Domestic Violence Protective Orders – both tribal court & state/local court orders are valid nationwide – 18 USC § 2265 • VPO Requirements: • Court must have jurisdiction, • Reasonable notice to defendant, and • Opportunity for defendant to be heard.

  35. Domestic Violence Protective Orders – Tribal Court Authority • Tribal Courts can enforce domestic violence protective orders by: • Criminal contempt (Indian violators) • Civil Contempt - 18 USC § 2265(e) • Exclusion - 18 USC § 2265(e)

  36. Domestic ViolenceProtective Orders • Federal felony to possess firearm/ammunition – 18 USC § 922(g)(8) • Federal felony to cross rez line to violate protective order – 18 USC § 2262(a)(1)

  37. Domestic Violence by Habitual Offender (18 USC § 117) • Federal felony, if: • New domestic assault in Indian country, • 2 or more prior convictions of assault, sexual abuse, or serious violent felony against spouse/partner, • From Tribal, Federal, or State court. • NOTE: this include misdemeanor domestic assaults.

  38. Criminal JurisdictionSummary • Indian perpetrator & Indian victim • Tribe can prosecute misdemeanors. • State has no jurisdiction. • US can prosecute Major Crimes Act offenses and federal crimes of nationwide applicability.

  39. Criminal JurisdictionSummary • Indian perpetrator & Non-Indian victim • Tribe can prosecute misdemeanors. • State has no jurisdiction. • US can prosecute Major Crimes Act offenses, other offenses per 1152, and federal crimes of nationwide applicability.

  40. Criminal JurisdictionSummary • Non-Indian perpetrator & Indian victim • Tribe has no jurisdiction. • State now has jurisdiction (per Castro-Huerta). • U.S. can also prosecute offenses per § 1152 and federal crimes of nationwide applicability.

  41. Criminal JurisdictionSummary • Non-Indian perpetrator & Non-Indian victim • Tribe has no jurisdiction. • State can prosecute misdemeanors and felonies. • U.S. can prosecute federal crimes of nationwide applicability.

  42. Welcome to the Rez…..

  43. Questions, Comments, Criticisms?

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