OCCA rules two more Oklahoma reservations fall under McGirt ruling

Derrick James, McAlester News-Capital, Okla.
·3 min read
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May 15—The Oklahoma Court of Criminal Appeals ruled two more tribal reservations were never disestablished, bringing the number of tribes impacted by the McGirt ruling to eight.

OCCA ruled in the case of Winston Whitecrow Brester, a Native American charged in Ottawa County District Court with four felony cases.

Attorneys for Brester argued the Ottawa and Peoria Reservations were never disestablished and only the federal government had criminal jurisdiction over Native Americans in the two reservations following the U.S. Supreme Court's 2020 decision in McGirt v. Oklahoma.

The U.S. Supreme Court ruled in 2020 that Congress never "disestablished" the reservation status of the Muscogee (Creek) Nation, and overturned the state conviction of Jimcy McGirt, who was retried in federal court and sentenced to life in prison.

OCCA in 2021 applied the ruling to the Choctaw, Cherokee, Chickasaw, Seminole, and Quapaw Nations in eastern Oklahoma.

The appeals court also ruled McGirt was not retroactive in cases where the defendant has exhausted all appeals and a final judgment issued before the 2020 ruling, with SCOTUS letting the appeals court's ruling stand in January 2022.

In 2022, the U.S. Supreme Court ruled in Castro-Huerta the state of Oklahoma had concurrent jurisdiction over non-Native Americans who committed crimes against Native Americans.

An Ottawa County District Judge ruled in favor of Brester in 2021 and dismissed charges of eluding a police officer, two counts of burglary, and placing bodily fluid on a government employee after finding the two reservations still existed.

The state of Oklahoma argued the Ottawa and Peoria Reservations were disestablished after Congress terminated relationships with the Ottawa Tribe in 1956 and the Peorias in 1959.

OCCA wrote in their ruling Congress reinstated the two tribes in the 1970s and "fully restored all rights and privileges" to the tribes and their members "including statutory and treaty rights" that were or might have been diminished or lost.

Oklahoma argued the reinstatement of the two tribes "did not revive the reservations because a reservation is not a right."

"Congress made clear in the Reinstatement Act that it was not only repealing termination but also restoring the tribes to the status and rights they enjoyed prior to termination," OCCA wrote in its ruling. "Congress used clear, explicit, and broad language in reinstating 'all rights and privileges."'

The appeals court also dismissed the state's claim that the Dawes Act subjected fee lands within the Ottawa Reservation subjected the lands to state jurisdiction.

In the ruling, OCCA overtured the district courts dismissal of Brester's 2018 charge of eluding a police officer, stating the conviction was final prior to 2020.

OCCA affirmed the dismissal of the two counts of burglary as the crime is considered a major crime under the federal Major Crimes Act but remanded the case of placing bodily fluids on a government employee back to the district court for a new hearing as the crime "may involve a general crime."

"Castro-Huerta leaves unresolved whether the state's jurisdiction to prosecute Indians for crimes under the General Crimes Act in Indian Country has been preempted," OCCA wrote.

The state has 60 days to pursue the unresolved jurisdictional claim "otherwise" the district court's ruling to dismiss the charge of placing bodily fluids on a government employee will be final.