Can Subject Matter Jurisdiction be Waived in McGirt Cases

In an attempt to avoid the overturning of thousands of unlawful convictions in Oklahoma courts, many prosecutors and the State Attorney General are asserting that lack of jurisdiction arguments were waived by the defendants not asserting it previously or that the doctrine of “Laches” prevents it from being heard now given the delay. 

However, Oklahoma case law has historically been clear that subject matter jurisdiction can NEVER be waived.  Orders from a court that lacked subject matter jurisdiction are not just voidable, they are void ab initio (from the beginning).  This means the court need not vacate the order; instead, the court must simply acknowledge that the order was never valid. 

Below are case law quotes, including the initial one from the United States Supreme Court in McGirt:

  • ”The Court suggests that ‘well-known’ ‘procedural obstacles’ could prevent challenges to state convictions. Ante, at 38. But, under Oklahoma law, it appears that there may be little bar to state habeas relief because ‘issues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal.’ Murphy v. Royal, 875 F. 3d 896, 907, n. 5 (CA10 2017) (quoting Wallace v. State, 935 P. 2d 366, 372 (Okla. Crim. App. 1997)).”  McGirt v. Oklahoma, 591 U.S. ______ (2020).
  • “[I]ssues of subject matter jurisdiction are never waived and can therefore be raised on a collateral appeal.”  Wallace v. State , 1997 OK CR 18, ¶15.
  • “There are, of course, some constitutional rights which are never finally waived. Lack of [subject matter] jurisdiction, for instance, can be raised at any time.”  Johnson v. State , 1980 OK CR 45, ¶15.
  • “Jurisdiction of the subject-matter cannot be conferred by consent, nor can it be waived, and it may be raised at any time before or after trial, and even for the first time in the appellate court.”  Armstrong v. State, 1926 OK CR 259, Pg. 118.
  • “A court has a duty to inquire into whether it possesses jurisdiction over the subject matter of an action that has been brought before the court.”  Dutton v. City of Midwest City, 2015 OK 51, ¶15.
  • “The question of the jurisdiction of the court over the subject matter of an action is properly raised by motion to dismiss for want of jurisdiction; even in the absence of such a motion, it is the bounden duty of the court to inquire into its own jurisdiction.”  Sanders v. Oklahoma Employment Security Commission, 1948 OK 116.

"Make law easy!"