The timing of tribal membership relevant in a McGirt claim in the state of Oklahoma. I'm Tulsa Attorney, James Wirth and we're talking about McGirt claims and whether it's relevant when the person became a member of the tribe.

So we've got a lot of McGirt cases going on in Oklahoma right now that's essentially people alleging that the state of Oklahoma lacked jurisdiction to charge them because their alleged crime occurred within the boundaries of a tribal reservation, and they are an Indian or the victim of the crime is an Indian.

And the question comes, and we've seen the state trying to object to some of these cases, where the defendant was not a member of the tribe until after the alleged crime occurred.

So it becomes, when does the person become a tribal member or become an Indian, as it's referred to in the various acts, under the McGirt precedent. And the state of Oklahoma, when they're arguing these, they're citing a specific case and it's the United States v. Zepeda, and that's 792 F 3rd 1103.

And essentially, the quote from that case, which is a ninth circuit case is, "In a prosecution under the Major Crimes Act the government must prove that the defendant was an Indian at the time of the offense with which the defendant is charged." So according to that, they have to be an Indian at the time the crime was occurred.

So the state's arguing, if they got the tribal membership later, then they're not an Indian at the time of the crime, the state had jurisdiction. However, there's a couple of issues with that.

First off, this is a ninth circuit case, that is not precedent here in Oklahoma, because we're in the 10th circuit. And this hasn't been decided, apparently, by a higher court like the United States Supreme Court.

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