The Bosse Case Was Decided by the Oklahoma Court of Criminal Appeals
Video Transcribed: Procedural bars to McGirt relief fail at the Oklahoma Court of Criminal Appeals. I’m McGirt attorney James Wirth, and we’re talking about the new decision of Bosse that’s been decided by the Oklahoma Court of Criminal Appeals on March 11th of 2021. This goes back to all of these McGirt cases.
The McGirt case originally dealt with the historic boundaries of the Muskogee Creek nation and how it was never disestablished and therefore it’s all still tribal land, which means that Indians cannot be prosecuted for crimes that occurred there or non-Indians also cannot be prosecuted for crimes that occurred against Indians on that land.
Since then, that is expanding. It has expanded to the Cherokee nation, it has expanded to the Chickasaw Nation and is likely to expand to not only the Five Civilized nations but also additional ones so that approximately half of Oklahoma is going to be determined to have always been and continue to be reservation land where the state of Oklahoma lacks jurisdiction to prosecute Indians.
But so what are prosecutors to do under those circumstances where they have hundreds of pending cases that may have to be dismissed and thousands of historic convictions that may be vacated?
Well, they’re coming up with a lot of arguments to try to limit McGirt and to try to say that these things can’t be thrown out. One of those arguments is procedural bars, and there are a few different ones that they’ve come up with.
So there’s the doctrine of laches, which essentially means if something has gone by without getting relief for a certain amount of time, it’s too late to whine about it, should have done it a long time ago. That’s laches.
Another one is a waiver, meaning if you didn’t bring it up on your first appeal, it was waived. Another one is timelines where it had to be filed within 60 days. There are all these deadlines for appeals.
So they’re trying to apply all of those to McGirt to say that, yeah, these pending cases, maybe we have to dismiss those, but these older cases where they’ve already had a direct appeal, well, it’s too late to raise those now. Unfortunately for prosecutors, the Oklahoma Court of Criminal Appeals came down like we expected that they would, which is essentially the McGirt issue is a subject matter jurisdiction matter.
Okay, what that means is that the state court lacked jurisdiction, never had the authority, to decide it in the first place. That is something that can never be waived. It can be brought up anytime and in fact, it’s incumbent on the judge to inquire into subject matter jurisdiction to make sure the court has jurisdiction.
So applying all of these arguments that are made by the state, through both the prosecutors with the district attorney’s office as well as the attorney’s general’s office, in the Bosse case, they decided that none of those are going to be applicable. It says it is settled law that subject matter jurisdiction can never be waived or forfeited.
However, it also provides some language that says McGirt provides a previously unavailable legal basis for this claim. So that gives a little bit of indication maybe they think that now that McGirt is known about, now that everybody is aware of it because it was decided and it’s the United States Supreme Court precedent, that they now could not have known about it before that, but they do know about it now.
So it kind of leaves opens the possibility of pushing some procedural bars if somebody waits too long after that decision to try to avail themselves as relief under McGirt v Oklahoma. But that is in conflict with the statements here that say subject matter jurisdiction can never be waived and therefore can’t be waived at any time. So there’s definitely a win for the defendant in this case and for defendants in general who are Indians who have been charged with crimes on tribal land.
If that’s something that you are dealing with or you or a family or a friend are dealing with, you’re going to want to talk to an attorney specifically confidentially about how these things may apply to your circumstances. If you want to do that with somebody at my office, you can schedule that by going to MakeLawEasy.com.