The U.S. Supreme Court’s decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), (decided on July 9, 2020), saw that Court uphold a 200 year old treaty between the United States and Creek Indians that traces back to Andrew Jackson and the Trail of Tears. As a result of the McGirt decision, most of Eastern Oklahoma, including Tulsa, is now considered part of Indian Country. Contracts, land rights, and criminal cases in Eastern Oklahoma must be viewed, at least partially, through the scope of Federal Indian Law. By way of example, between July 9, 2020 and August 9, 2020, over 1000 criminal convictions by Oklahoma state courts have been overturned as a direct result of McGirt because state courts do not have subject matter jurisdiction over criminal prosecutions of defendants on Indian lands. Other dormant, but valid, treaties can be expected to again see future honor as a result of McGirt. If the area of the country you live in was once Indian territory, (e.g., Chattanooga, Tennessee), look to see if there may be an old Indian treaty that may impact your case. If you wish to discuss a legal matter, such as how Native American bloodlines may impact a pending child custody case in Tennessee, call attorney Gregory D. Smith, 931/647-1299 for a free consultation.
Federal Indian Law issues
The first, and most important point, before one changes legal counsel, is to carefully consider if that move is actually in your best interest? Is the change being done out of anger, panic, or logic? No attorney can promise an outcome in court. The attorney you currently have knows your case, has been paid, and previously earned your trust. Can your concern be eased by simply sitting down with the attorney and discussing your concern? That may be worth a try before paying another attorney a second retainer to take over your case or proceeding “pro se.” (Latin for “on your own”). Likewise, an appeal is usually considered a separate case, so once a case is completed, you may seek other counsel for an appeal.
If you find that an attorney change is necessary, there are two ways to do it. First, you can personally tell your attorney “You’re Fired.” That option is self-explanatory. Second, you can hire another attorney, and then the newly retained attorney contacts the previous attorney for a “substitution of counsel.” These two procedures are fairly common and won’t be as stressful or offensive to the original attorney as one might expect. Changing counsel does not automatically waive any outstanding attorney fee owed to the original attorney or obligate new counsel to negotiate a return of fee from the original counsel. Most of the time, the new attorney stays out of that discussion.
In the case of appointed counsel, simply hiring an attorney usually ends an appointed attorney’s duty to represent a client. If an indigent criminal court defendant wants to fire their appointed counsel, but can’t afford to hire counsel, the defendant can instruct appointed counsel to file a motion to withdraw or send the court clerk a pro se motion or letter asking for a different attorney and stating why the change in counsel is necessary. The Court is not required to give new counsel for indigents simply because a defendant does not like the appointed attorney. Indigents do not get to pick who a Court appoints as the defendant’s attorney. That being said, courts frequently grant a first request for a different appointed attorney filed by an indigent defendant. Repeated requests for new appointed counsel are less frequently granted.
If you are in Tennessee and have questions about rules regarding changing attorneys, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal,(the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith .
The Indian Child Welfare Act, commonly called ICWA, can be found at 25 U.S.C. section 1901 et seq. ICWA applies to state juvenile court cases where a termination of parental rights or surrender of parental rights exist and either the child or one of the parents is associated with a federally recognized Native American Indian tribe. ICWA also applies to custody cases arising from a state initiated dependency and neglect case where a parent or child is associated with a federally recognized Native American Indian tribe. The third area where ICWA sometimes becomes an issue is state filed private adoption cases where at least one the parents giving up a child for adoption is associated with a federally recognized Native American Indian tribe. ICWA does not normally apply to divorce cases where one or both parents in a pending state divorce case are Native American.
It may sound odd to say a parent is “associated with a federally recognized Native American Indian tribe.” This term-of-art usually means a party is a member of an Indian tribe that the United States Department of the Interior has declared to have proven existed before the United States became a nation and said tribe still exists today. An example of a federally recognized Indian tribe would be the Eastern Band of Cherokee Indians, based in North Carolina. This tribe has traceable blood ties to ancestors “registered” as Native Americans prior to the 1930s “Dawes Rolls.” Ironically, Cherokees in the federally recognized Oklahoma Cherokee Nation may have common ancestors to their North Carolina cousins. DNA tests often determine blood lines and acceptable percentages of Native American heritage for a person to qualify as a tribal member or to be deemed “associated with a tribe.” Some people who could be registered as Native American in a federally recognized tribe do not register, but perhaps a parent or grandparent has registered. That unregistered person still has potential association with a Native American tribe. Likewise, if a Native American couple adopt a non-Indian child, the tribe can declare the adopted child to be a tribal member since each tribe determines their own membership qualifications.
In the event that a known Native American child comes into state court custody via surrender, state intervention for neglect, or private adoption, the state and court have an obligation to try and notify the relevant federally recognized Indian tribe that the child is in state custody or is being considered for a private adoption. Then the tribe, or Native American family members, can intervene in the state case to either monitor, participate in the state case, or seek to move the matter to the tribal court associated with the federally recognized Native American Indian tribe pursuant to ICWA. This law helps avoid a de facto tribal genocide by non-Indian adoptions or state foster care scenarios. Note that ICWA rules do not necessarily apply if a tribe is not federally recognized. Sadly, the mandate of ICWA is sometimes overlooked or undermined by social workers not asking about a child’s tribal background or a parent deliberately hiding a Native American tribal association. ICWA applies while a case is proceeding and a tribe can intervene, even late in the process. Once a case becomes final, even if ICWA could have applied, the right to intervene by a tribe under ICWA is usually extinguished.
For more information on ICWA or other Federal Indian Law questions, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith and Federal Indian Law in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.
For many criminal matters, you have the right to have a trial. During your trial, you present factual evidence to refute your guilt. You may also question favorable witnesses and cross-examine unfavorable ones. If you do not like the outcome of your case and have important legal topics to address, you can probably file an appeal.
In Tennessee, there are four different types of courts, including two trial courts and two appellate courts. If you need to appeal a criminal conviction, you likely want to ask an appellate court to consider your case. Eventually, you may be able to appeal your matter to the Tennessee Supreme Court. You should know, though, that appeals are vastly different from trials.
Tennessee criminal trials
If prosecutors bring criminal charges against you, you are likely to have an opportunity to plead guilty. If you choose to assert your innocence, you may proceed to a criminal trial. In Tennessee, you may have either a jury trial or a judge one, called a bench trial. Before the trial starts, you have an opportunity to uncover facts through the discovery process. Then, you present factual evidence that proves you are innocent. The prosecutor, of course, attempts to prove your guilt.
Tennessee appellate trials
If a judge or jury convicts you of a crime, you may have an opportunity to file an appeal. The appellate process, though, is not a rehashing of your initial trial. That is, you typically may not present new facts, examine witnesses or otherwise retry the case. Instead, you argue that there was some type of legal error during the trial that negatively affected the outcome of the case. Alternatively, you may argue that the trial court violated your rights in some way.
As you can see, criminal trials and appeals have some important differences. As such, the attorney who handled your trial may not have the skill set to appeal your case successfully. By understanding the fundamental differences between criminal trials and appeals, you can better plan for choosing the right legal counsel for your case.
If you are in Tennessee, federal appeals courts or the military appeals courts and have questions about rules regarding appeals, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith and his work in Federal Indian Law appeals in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), at http://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith .
There are many situations that could lead to your parental rights being terminated in Tennessee. Typically, when you lose your rights, you are made aware of what is happening. You are given the chance to stop the termination by the court. Courts do not often remove rights without giving you a chance to prevent it from happening. However, if your rights were terminated and you now wish to reinstate them, it helps to know where the law stands on this.
The National Conference of State Legislatures explains that the termination of parental rights is often meant to be permanent. When you lose your rights, your child is not able to be adopted. This could be by a family member, a stepparent or a stranger, depending on the situation. If your child is adopted, then it will be very difficult for you to get rights back regardless of any possible loopholes in the law. So, do keep that in mind.
In general, though, in this state, you cannot get your rights back. The state has no specific laws that pertain to the reinstatement of your parental rights. There are other states that do have such laws, which can make things easier. Your best option is to go in front of the court and see if there is any chance to get your rights back, especially if your child has not been adopted. However, keep in mind that there is no guarantee the court will give you your rights back. It all is dependent on the situation. This information is for education and is not legal advice.
If you are in Tennessee and have questions about rules regarding termination of parental rights or appeals, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), athttp://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.
If you are not familiar with appealing a court judgment, you may wonder who can make an appeal in the first place. Do both sides have an equal opportunity to appeal a Tennessee court decision, and does it work the same way in civil litigation and in criminal prosecutions? The U.S. Courts website provides answers to these important questions. If you are considering an appeal to a court judgment, you should have a reasonable idea of how to proceed.
When it comes to cases involving suing another party in court, either side has a right to appeal a judgment to an appellate court. It does not matter whether the case was decided by a jury or a judge. However, the right to appeal can be waived if the parties decide to settle the case without pursuing a decision from a jury or the bench. If a settlement is agreed to, there can be no appeal.
Appeals work differently in criminal cases. If a person is found guilty of a crime, the defendant has the option to appeal the verdict. This is not the case if the person is acquitted. A prosecutor cannot appeal a not guilty verdict to try to get a new trial because it would violate Fifth Amendment protections against double jeopardy. However, if the defendant pleads guilty, the right to an appeal is typically waived.
However, there is room for both a defendant and a prosecutor to retain the right to appeal a sentence imposed after a verdict of guilty. A defense attorney may argue that the sentence does not comply with the requirements of the law. A prosecutor can appeal on the grounds of a similar argument. Either side might also claim that the sentence violates sentencing guidelines or otherwise deviates from the guidelines.
Anyone inexperienced in matters concerning appealing a judgment can benefit from asking a professional appeals attorney to gain a better understanding of the subject. Remember that this article is only intended to inform you about appeals and not to give you any legal advice.
If you are in Tennessee and have questions about rules regarding appeals, call the Law Office of Gregory D. Smith, 931/647-1299 or visit www.gsmithlawfirm.com. Mr. Smith is listed in Mid-South Super Lawyers and is A-V rated by Martindale-Hubbell. You can read a featured article about Mr. Smith’s work in appellate courts in the November, 2019 ABA Journal, (the national magazine of the American Bar Association), athttp://www.abajournal.com/magazine/article/tennessee-attorney-greg-smith.