Last summer, the U.S. Supreme Court decided the case of McGirt v. Oklahoma, _____ U.S. _____, 140 S.Ct. 2452 (2020), which has proven one of the most impactful criminal law decisions in the history of this state. This decision has been under assault politically by Oklahoma Governor Kevin Stitt, as well as legally by the Oklahoma Attorney General’s Office. Those parties secured their biggest win to date on August 12, when the Oklahoma Court of Criminal Appeals held that McGirt would only apply to cases which did not involve a final conviction.
In McGirt, the High Court determined that the reservation of the Muscogee (Creek) Nation had never been abolished by Congress or by treaty with the tribe, and thus still existed. This meant that the Nation was still “Indian Country” as that term is used in the federal laws known as the General Crimes Act and the Major Crimes Act, found at 18 U.S.C. §§ 1151, 1152 and 1153 (for nonlawyers, read that as Title 18 United States Code Sections 1151, 1152 and 1153). Thus, certain serious crimes listed in the Acts, such as murder, kidnapping, rape and the like committed by or against an Indian can only be prosecuted by federal authorities in a federal court, while other crimes committed by or against Indians must be prosecuted in the tribal court for that particular reservation. In McGirt, the Court voided the conviction of a member of the Seminole tribe by an Oklahoma state court, because the crime was committed within the boundaries of the Muscogee (Creek) Nation and the State of Oklahoma lacked jurisdiction to convict or punish an Indian in that reservation.
Initially, after a substantial delay, the Oklahoma Court of Criminal Appeals (Oklahoma’s highest state court for criminal cases), began to apply McGirt to other tribes. On March 11, the Court decided Bosse v. State, 2021 OK CR 3, 484 P.3d 286, which extended McGirt to the Chickasaw Nation (which includes Marshall County) and Hogner v. State, 2021 OK CR 4, _____ P.3d _____, which did the same for the Cherokee Nation. On April 1, the Court did the same for the Choctaw Nation in Sizemore v. State, 2021 OK CR 6, 485 P.3d 867, and the Seminole Nation in Grayson v. State, 2021 OK CR 8, 485 P.3d 250. In Bosse, and several other less-heralded decisions, the Court determined that since Oklahoma had never had jurisdiction, old convictions were void. At the request of the Attorney General, the Court stayed Bosse, and the State has appealed the decision to the U.S. Supreme Court, seeking, among other things, an outright reversal of McGirt.
Meanwhile, the State sought to attack McGirt on other bases. In Pushmataha County, Clifton Parish filed an application for post-conviction relief, seeking to set aside his 2012 conviction for second-degree murder. Associate District Judge Jana Wallace, following the decisions of the Court of Criminal Appeals, granted that application on April 13, 2021. District 17 District Attorney Mark Matloff filed a petition seeking a writ of prohibition (a type of injunction against a judge, seeking to have them ordered not to do something) with the Court of Criminal Appeals. Finding an opportunity to reverse course, the Court of Criminal Appeals decided State ex rel. Matloff v. Wallace, 2021 OK CR 21, _____ P.3d _____, and held that McGirt would not be applied to convictions that had become final prior to that decision being rendered.
In order to reach that conclusion, the Court’s three-judge majority determined that McGirt announced a new rule of criminal procedure, which would normally not be retroactive. After an extended discussion, most of which argued the burdens of vacating old convictions, the Court held that McGirt should not be applied to cases where convictions had become final. Thus, in Wallace, since Clifton Parish’s appeal was denied in 2014, his conviction was final, and McGirt did not apply. The Court then issued the writ of prohibition, barring Judge Wallace from enforcing her order vacating Parish’s conviction. As of press time, Parish’s attorneys have filed a motion seeking reconsideration of that decision, which has yet to be decided.
The decision in Wallace should have no impact on pending criminal cases. Any Indian accused of committing a crime within the Five Tribes, whether speeding or murder, should be able to get their case dismissed from state court. Likewise, any non-Indian committing a crime against an Indian in those reservations is entitled to the same relief. This also extends to those cases which are currently on appeal, or for which the appeal time had not expired (ten days after sentencing) as of the decision in McGirt on July 9, 2020. Any person charged with a crime in these circumstances is clearly immune from prosecution in Oklahoma state courts.
However, Wallace is a dramatic shift in the legal landscape with regards to old convictions. Reversing decades of prior decisions, the Court has declared that even though the State of Oklahoma never had authority to prosecute those persons, because it did anyway, and because of the passage of time, it will not disturb those otherwise-unlawful convictions. In a bit of breathtaking honesty, Judge Gary Lumpkin, writing separately to explain why he agreed with the Court’s result and not its reasoning, frankly admitted that the old convictions should be void, but that this law should not be applied because of the harm applying the law could cause. As Judge Lumpkin argued, “This is hard to explain in an objective legal context but provides a just and pragmatic resolution to the McGirt dilemma.” Wallace, 2021 OK CR 21 at ¶ 6 (Lumpkin, J., specially concurring).
This area of the law is far from settled. The Oklahoma Attorney General is frankly attempting to reverse McGirt or to limit its application in any way possible. The primary hope for reversing McGirt appears to be a change in the Supreme Court’s membership; Justice Ruth Bader Ginsburg, who was part of the 5-4 majority in McGirt, was replaced after her death in September 2020 by Justice Amy Coney Barrett by then-President Trump. However, it is far from clear what will happen going forward. Likewise, it seems likely that Parish’s attorneys will appeal the Wallace decision, so it may well be that this area of the law will once again be reviewed by the Supreme Court. It is unlikely, however, that any decision on whether the Court will even consider these issues will occur before 2022.
Meanwhile, the Court of Criminal Appeals is plainly hostile to McGirt and its results. The Court ignored its own rules to consider District Attorney Matloff’s request for a writ, and then with a wave of the judicial hand reversed decades of decisions which required a different result. This results in a fair amount of uncertainty going forward for lawyers, judges, and everyone else involved in the criminal justice system, as these ongoing developments continue.
UPDATE: On August 31, 2021, the Court of Criminal Appeals issued an order in Bosse v. State, vacating the original opinion in light of the holding in Wallace. Bosse v. State, 2021 OK CR 23, _____ P.3d _____. Note that while Bosse was the first case recognizing the Chickasaw Nation's continuing reservation, this withdrawal of that opinion does not mean the Court does not recognize the Chickasaw Nation. Wallace affirmed that part of the Court's prior holding, expressly recognizing the continuing existence of the Chickasaw Nation reservation (as well as the Choctaw and Cherokee reservations). Wallace, supra at ¶ 15. The new order in Bosse appears to be just cleanup by the Court, attempting to reconcile its cases, which is indeed a challenging task the way the Court has whipsawed back and forth on this issue.
A version of this article was published in the August 25, 2021 edition of The Madill Record, and it is republished here by permission.
In McGirt, the High Court determined that the reservation of the Muscogee (Creek) Nation had never been abolished by Congress or by treaty with the tribe, and thus still existed. This meant that the Nation was still “Indian Country” as that term is used in the federal laws known as the General Crimes Act and the Major Crimes Act, found at 18 U.S.C. §§ 1151, 1152 and 1153 (for nonlawyers, read that as Title 18 United States Code Sections 1151, 1152 and 1153). Thus, certain serious crimes listed in the Acts, such as murder, kidnapping, rape and the like committed by or against an Indian can only be prosecuted by federal authorities in a federal court, while other crimes committed by or against Indians must be prosecuted in the tribal court for that particular reservation. In McGirt, the Court voided the conviction of a member of the Seminole tribe by an Oklahoma state court, because the crime was committed within the boundaries of the Muscogee (Creek) Nation and the State of Oklahoma lacked jurisdiction to convict or punish an Indian in that reservation.
Initially, after a substantial delay, the Oklahoma Court of Criminal Appeals (Oklahoma’s highest state court for criminal cases), began to apply McGirt to other tribes. On March 11, the Court decided Bosse v. State, 2021 OK CR 3, 484 P.3d 286, which extended McGirt to the Chickasaw Nation (which includes Marshall County) and Hogner v. State, 2021 OK CR 4, _____ P.3d _____, which did the same for the Cherokee Nation. On April 1, the Court did the same for the Choctaw Nation in Sizemore v. State, 2021 OK CR 6, 485 P.3d 867, and the Seminole Nation in Grayson v. State, 2021 OK CR 8, 485 P.3d 250. In Bosse, and several other less-heralded decisions, the Court determined that since Oklahoma had never had jurisdiction, old convictions were void. At the request of the Attorney General, the Court stayed Bosse, and the State has appealed the decision to the U.S. Supreme Court, seeking, among other things, an outright reversal of McGirt.
Meanwhile, the State sought to attack McGirt on other bases. In Pushmataha County, Clifton Parish filed an application for post-conviction relief, seeking to set aside his 2012 conviction for second-degree murder. Associate District Judge Jana Wallace, following the decisions of the Court of Criminal Appeals, granted that application on April 13, 2021. District 17 District Attorney Mark Matloff filed a petition seeking a writ of prohibition (a type of injunction against a judge, seeking to have them ordered not to do something) with the Court of Criminal Appeals. Finding an opportunity to reverse course, the Court of Criminal Appeals decided State ex rel. Matloff v. Wallace, 2021 OK CR 21, _____ P.3d _____, and held that McGirt would not be applied to convictions that had become final prior to that decision being rendered.
In order to reach that conclusion, the Court’s three-judge majority determined that McGirt announced a new rule of criminal procedure, which would normally not be retroactive. After an extended discussion, most of which argued the burdens of vacating old convictions, the Court held that McGirt should not be applied to cases where convictions had become final. Thus, in Wallace, since Clifton Parish’s appeal was denied in 2014, his conviction was final, and McGirt did not apply. The Court then issued the writ of prohibition, barring Judge Wallace from enforcing her order vacating Parish’s conviction. As of press time, Parish’s attorneys have filed a motion seeking reconsideration of that decision, which has yet to be decided.
The decision in Wallace should have no impact on pending criminal cases. Any Indian accused of committing a crime within the Five Tribes, whether speeding or murder, should be able to get their case dismissed from state court. Likewise, any non-Indian committing a crime against an Indian in those reservations is entitled to the same relief. This also extends to those cases which are currently on appeal, or for which the appeal time had not expired (ten days after sentencing) as of the decision in McGirt on July 9, 2020. Any person charged with a crime in these circumstances is clearly immune from prosecution in Oklahoma state courts.
However, Wallace is a dramatic shift in the legal landscape with regards to old convictions. Reversing decades of prior decisions, the Court has declared that even though the State of Oklahoma never had authority to prosecute those persons, because it did anyway, and because of the passage of time, it will not disturb those otherwise-unlawful convictions. In a bit of breathtaking honesty, Judge Gary Lumpkin, writing separately to explain why he agreed with the Court’s result and not its reasoning, frankly admitted that the old convictions should be void, but that this law should not be applied because of the harm applying the law could cause. As Judge Lumpkin argued, “This is hard to explain in an objective legal context but provides a just and pragmatic resolution to the McGirt dilemma.” Wallace, 2021 OK CR 21 at ¶ 6 (Lumpkin, J., specially concurring).
This area of the law is far from settled. The Oklahoma Attorney General is frankly attempting to reverse McGirt or to limit its application in any way possible. The primary hope for reversing McGirt appears to be a change in the Supreme Court’s membership; Justice Ruth Bader Ginsburg, who was part of the 5-4 majority in McGirt, was replaced after her death in September 2020 by Justice Amy Coney Barrett by then-President Trump. However, it is far from clear what will happen going forward. Likewise, it seems likely that Parish’s attorneys will appeal the Wallace decision, so it may well be that this area of the law will once again be reviewed by the Supreme Court. It is unlikely, however, that any decision on whether the Court will even consider these issues will occur before 2022.
Meanwhile, the Court of Criminal Appeals is plainly hostile to McGirt and its results. The Court ignored its own rules to consider District Attorney Matloff’s request for a writ, and then with a wave of the judicial hand reversed decades of decisions which required a different result. This results in a fair amount of uncertainty going forward for lawyers, judges, and everyone else involved in the criminal justice system, as these ongoing developments continue.
UPDATE: On August 31, 2021, the Court of Criminal Appeals issued an order in Bosse v. State, vacating the original opinion in light of the holding in Wallace. Bosse v. State, 2021 OK CR 23, _____ P.3d _____. Note that while Bosse was the first case recognizing the Chickasaw Nation's continuing reservation, this withdrawal of that opinion does not mean the Court does not recognize the Chickasaw Nation. Wallace affirmed that part of the Court's prior holding, expressly recognizing the continuing existence of the Chickasaw Nation reservation (as well as the Choctaw and Cherokee reservations). Wallace, supra at ¶ 15. The new order in Bosse appears to be just cleanup by the Court, attempting to reconcile its cases, which is indeed a challenging task the way the Court has whipsawed back and forth on this issue.
A version of this article was published in the August 25, 2021 edition of The Madill Record, and it is republished here by permission.
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