Tulsa Attorney BlogMcGirt: Can Subject Matter Jurisdiction Ever Be Waived?

Muscogee Creek Tribal Reservation Was Never Disestablished

Video Transcribed:  Can subject matter jurisdiction ever be waived in Oklahoma? I’m McGirt attorney, James Wirth, and we’re talking about subject matter jurisdiction and how it applies to McGirt case.

So, the United States Supreme Court in McGirt, on July 9th of 2020, decided that the historical boundaries of the Muscogee Creek Tribal Reservation were never disestablished, meaning that a good portion of Northeast Oklahoma is still reservation land.

And with that, we also think that that will also apply to the remainder of the five civilized tribes and some other tribes, meaning that about half of Oklahoma, if not more, is reservation land now where the state lacks jurisdiction to charge crimes allegedly committed by Native Americans or committed against Native Americans.

So, there are hundreds, if not thousands, likely many thousands, of cases that could be challenged on the basis that the state lacked jurisdiction to prosecute. So, we’re getting some pushback from prosecutors and the Attorney General’s Office. They’re trying to find ways to get around vacating all these sentences that are unlawful.

And one of the ways they’re trying to do that is saying that, “Well, these issues were waived,” and that some of that comes from the Murphy Court, which is the 10th circuit opinion that predated McGirt, that addressed this issue. And there’s a portion in there that says that “The court suggests that well-known procedural arguments could prevent challenges to state convictions.

But,” then it goes on, “Under Oklahoma law, it appears there may be a very little bar to state habeas corpus relief because issues of subject matter jurisdiction are never waived and therefore can be raised on a collateral appeal.”

And what that means is that subject matter jurisdiction does not make a judgment or a sentence voidable. It makes it void ab initio, meaning from the beginning. What that means is that the court doesn’t have to go through and void the judgment. All the court has to do is look at it and acknowledge that it was void from the beginning. It was never proper.

And that means that you don’t have to necessarily attack the conviction in the criminal case. It can be attacked collaterally, meaning you can tack it elsewhere. We could file an expungement case, and we can attack it there because we’re not asking that it be vacated.

We’re asking the court to acknowledge that it was never proper, that it was void from the beginning. So, there are some procedural bars to post-conviction relief, to where things are waived, if they’re not raised in the direct appeal or raised on the first application for or petition for post-conviction relief. Those are the procedural bars that they’re talking about there. But you don’t have to go through a post-conviction relief, you can attack it collaterally. You could file a habeas corpus action. You could file other types of actions to go after it.

So, that’s where they’re talking about it can be attacked collaterally, and talking about the subject matter can never be waived because there are lots of case histories that indicate it can never be waived. So, I want to go over that, just a few cases here. In the Wallace V State case, 1997, Oklahoma Court of Criminal Appeals 18. And that says, “Issues of subject matter jurisdiction are never waived, and therefore, can be raised on a collateral appeal.”

And then, we’ve got Johnson V State, 1980 Oklahoma Court of Criminal Appeals 45. “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.” Then we’ve got to Armstrong V State, 1926, Oklahoma Court of Criminal Appeals 259, so this goes back almost a hundred years.

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, or even for the first time in the appellate court. Can never be waived.

Then we’ve got Dutton V City of Midwest City, 2015. OK 51, so that’s the Oklahoma Supreme Court. And it says, “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.”

So, that means the duty is not incumbent on the defendant to bring it forward, which means they can’t waive it if they don’t. It’s incumbent on the court to inquire into subject matter jurisdiction as well as the defendant and the state inquiring those things.

And then, finally, we’ve got Sanders V Oklahoma Employment Security Commission, 1948. OK, 116. That, again, is from the Oklahoma Supreme Court going all the way back to 1948. And it says, “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 emotion, it is the bound and duty of the court to inquire into its own jurisdiction.”

So, consistently, for a hundred plus years, Oklahoma has held that subject matter jurisdiction can never be waived. It can be challenged at any time. It can be a challenge collaterally. But despite all of that history, some prosecutors and Oklahoma’s Attorney General is suggesting that it can be waived, and it was waived by some of these defendants. So, I don’t think the Oklahoma Court of Criminal Appeals, given this history, can find any way around that. I don’t think they can find that there was a waiver.

I don’t think that they can attach equitable arguments of latches that it’s too late to bring these claims. I think that the case law is clear it can be raised at any time, and therefore, and the duty is on the court to raise it itself as well.

So, I don’t think that these arguments are going to win. If you’ve got questions, though, regarding how it may apply to a specific case, you’re going to want to talk to an attorney about that. You can contact me or an attorney in my office by going to makelaweasy.com.

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