McGirt Was Decided by the United States Supreme Court
Video Transcribed: Big McGirt news, Bosse has been stayed by the United States Supreme court. I’m McGirt attorney, James Wirth. And we’re talking about a big decision made by the United States Supreme court that may signal some changes in what we believe is going to happen regarding McGirt.
So a little bit of background regarding McGirt and Bosse. McGirt was decided by the United States Supreme court, July 9th of 2020 that ruled the Muskogee Creek nation tribal reservation was never disestablished. So a large chunk of Northeast Oklahoma still to this day is reservation land.
And on reservation land, the state of Oklahoma lacks jurisdiction to prosecute Indians or to prosecute non-Indians for crimes that occur against Indians that have since been expanded in other decisions to the five civilized tribes.
And that includes the decision in Bosse which expanded it to the Chickasaw Nation. Bosse is a published decision. It’s published by the Oklahoma court of criminal appeals and is being used as a binding precedent by the court in decisions that are going on.
However, the state of Oklahoma is not happy with the decision in Bosse and is really worried about the repercussions of McGirt and Bosse, particularly to older cases on post-conviction relief. So this case now may have a very big result or very big effect on other cases that are pending dismissal under McGirt. And I can tell you why that is.
So first off the precedent and the big decisions in Bosse, it’s not just that it expands it to the Chickasaw nation, that’s actually not considered that big of a deal. The state of Oklahoma is not fighting that issue that much. It’s the two other parts of it that is in Bosse the defendant is non-native American, the victims in Bosse are native American. The state of Oklahoma is arguing that the state should have concurrent jurisdiction to charge non-Indians for crimes that occur against Indians in Indian country.
So that either the state could prosecute or the feds could prosecute or the tribe could prosecute or technically multiples of those could prosecute.
But the state says it does not lack jurisdiction under that Oklahoma court of criminal appeals decided differently and they don’t like that decision. That is the second part of it. The biggest part and the biggest precedent in Bosse though is that it deals with the procedural defenses that the state makes such as latches and waivers.
They’re saying that too much time has gone by, you were convicted years ago, you didn’t raise this on direct appeal. Now you’re raising it now years later, it’s too late. All of those procedural defenses were brought up in Bosse and they were denied by the Oklahoma court of criminal appeals who held concurrent or pursuant to many other prior cases that have ruled this. That subject matter jurisdiction can never be waived and it can be attacked collaterally at any time.
So that ruling means that McGirt can apply to thousands of old cases, which could result in thousands of convictions being vacated. Some of them in cases that are going to be very difficult to re-prosecute in the correct court, federal court or tribal court because the statute of limitations has gone by, or because the witnesses and evidence simply are not available anymore. So that’s what the state is fighting.
They want the state to have concurrent jurisdiction to prosecute non-natives and they want the application of McGirt only to be prospective, not retrospective, not for collateral attack. If it goes in that direction, what does it not mean? Well, it means that for cases that are currently pending before the trial court, where people haven’t been convicted yet in those cases state lacks jurisdiction if the defendant is a native American and occurred on tribal land needs to be dismissed.
Also, they were previously convicted, but they still have a direct appeal going on then they can still attack it in the direct appeal, get the conviction thrown out that way. But if they’ve already been convicted, already exhausted their direct appeals, then they may be open to some procedural defenses depending on the history of their case and how much time has gone by. There may be various procedural defenses that may be available and the state may try to use them against them.
And then it comes down to what happens with the Bosse decision. Because in Bosse, the Oklahoma court of criminal appeals decided none of those procedural defenses work, the state didn’t like that. They requested rehearing. Oklahoma court of criminal appeals says no, you can’t have a rehearing in post-conviction relief. It’s statutorily prohibited, but we will throw you a bit of a bone. We won’t issue the mandate for 45 days or until May 30th of 2021.
That’ll give you time to file with the United States Supreme court that they did the state of Oklahoma files for a request for a stay with the United States Supreme court. And that’s the big decision that we got yesterday. The United States Supreme court granted the stay. So the mandate in Bosse is not going to be entered on May 30th of 2021 like we thought it was, it is delayed pending one of two things occurring.
The first one is the state of Oklahoma is anticipating they’re going to file for a petition for writ of the search area. That means that they’re petitioning the United States Supreme court to take on this case to appeal the decision from the Oklahoma court of criminal appeals. They do that and then the United States Supreme court can deny cert the vast majority of cases that request cert is denied. They need four justices to vote in order for cert to be accepted.
If it’s accepted, then the stay will likely continue if it’s denied the stay ends at that point. All right, so we’re waiting on the state of Oklahoma to file their petition for the writ and then the decision from the United States Supreme court.
If the United States Supreme court does accept the case for decision, then the state is going to continue likely until the decision from the United States Supreme court on whether they’re going to affirm the decision made by the Oklahoma court of criminal appeals in Bosse or whether they’re going to reverse it.
So what does it mean and what do we need to expect based on the stay being granted? Well, it means that at least four, maybe five of the justices decided that it should stay. Three of them specifically indicated that they would not have stayed, that was the three more liberal justices.
And the standard for staying a case is about three parts. First off, there has to be a reasonable probability that four members of this court will be of the opinion that the issues are sufficiently meritorious to warrant a grant of cert. So there has to be a belief that cert’s going to be granted first.
Second is there has to be a significant possibility of reversal of the lower court’s decision. So at least four of the justice believe that there’s a significant possibility of reversal of Bosse. And then lastly, there has to be irreparable harm if the United States Supreme court were not to grant the stay and the mandate in Boston went out there have to be irreparable harm to the state of Oklahoma by not staying it.
So at least four members, maybe five members of the United States Supreme court found that those exist, which is concerning for defendants who are relying on and seeking for having their convictions and sentences vacated. However, it’s still a hard, long road forward for the state of Oklahoma. They have to get a cert granted and then they have to convince the court that a subject matter jurisdiction issue should not be retroactive.
Even though in doing that, they’re acknowledging that the sentencing court never had the authority to charge the person, never had the authority to convict the person, never had the authority to sentence the person, never had the authority to incarcerate the person, but yet we’re not going to provide any relief.
What that would mean is an acknowledgment that the person is currently actively being illegally held by the state of Oklahoma, but we’re just going to ignore it because it would be too much of a problem to require the proper authorities to prosecute it.
So subject matter jurisdiction is very fundamental. The idea that we’re going to waive that issue and essentially allow procedural defenses and say that you cannot attack it because too much time has gone by meanwhile somebody’s still being incarcerated based on that very serious err committed by the state of Oklahoma, that’s going to be tough.
So it’s not yet known whether this is going to be reversed or not, but it is definitely more on our radar screen to watch now than it was prior to the state being granted.
So if you’re under these circumstances friends or family member, and you are facing this issue where you have filed for post-conviction relief, it’s pretty clear based on the United States Supreme court precedent in McGirt that the state of Oklahoma lacked jurisdiction to prosecute you and holds you yet your case keeps getting kicked down the road.
What this means is it’s likely to be continued longer because the trial courts are waiting to get further rulings from the higher courts before they do anything definitive like release somebody from prison.
So we’ve seen a lot of continuances on those cases already. And even though it is binding Oklahoma court of criminal appeals precedent that is published and is being relied upon by the Oklahoma court of criminal appeals. This is an excellent excuse for judges to pass the cases further, the state of Oklahoma and its prosecutors will no doubt be making the request to do so.
So I anticipate there’s going to be further delays in these cases while we await the decision from the United States Supreme court on whether they’re going to grant cert in Bosse.
If you’ve got questions on how this may apply to your case, you’re going to want to talk to an attorney specifically privately about those circumstances. To do that or to get that scheduled somebody at my office, go online to makelaweasy.com.