McGirt Has Impacted Oklahoma
Video Transcribed: Oklahoma Court of Criminal Appeals does a complete 180 on McGirt and Matloff V Wallace decision. I’m McGirt attorney James Wirth and we’re talking about this bombshell decision from the Oklahoma Court of Criminal Appeals that just dropped, and essentially, its holding is that the McGirt decision does not apply retroactively to post-conviction relief cases.
So how did we get here? So the question is, obviously, what we know about McGirt decided July 9th, 2020 that found that the Muscogee Creek Nation was never disestablished far as the reservation land.
Any crime occurring therein has to be tried by the feds or by a tribe because the State of Oklahoma lacks jurisdiction to charge Indians with crimes on tribal territory and to charge non-Indians with crimes against Indians on tribal territory.
So McGirt expanded that territory by finding that the Muscogee Creek Nation was not disestablished. It’s subsequently been that analysis has occurred on the other five civilized tribes and found that those nation’s reservations have also not been disestablished.
But this decision today is not talking about whether the nations have been disestablished and where the Indian country is. It’s talking about whether it applies prospectively only or retroactively.
And there are common foundational rules of law that say that subject matter jurisdiction, what has to do with the court’s authority to do something, that when there’s an issue related to subject matter jurisdiction, it can never be waived. It can be attacked at any time.
It can be attacked collaterally. So that’s where we get the decision in Bosse from the Oklahoma Court of Criminal Appeals that was decided on March 11th, 2021. And I’ve got some quotes for that so I can show you how the position of the court has changed very much in a short period of time.
So this is the opinion from the court in Bosse. “It is settled that subject matter jurisdiction can never be waived or forfeited.” It says, “This court has repeatedly held that the limitations of post-conviction or subsequent post-conviction statutes do not apply to claims of jurisdiction.”
So the court was very clear in March of 2021 in the Bosse case that McGirt has to be applied retroactively because it’s an issue of subject matter jurisdiction, that we’ve got people that were unlawfully charged, sentenced, and thrown in jail and are still sitting in jail when we all know now, and we all acknowledge now, including the Court of Criminal Appeals, that the court never had the authority to do that. So the only question is, are we going to do anything about these old cases?
And in McGirt, the court found, “Well, our hands are tied, essentially. The law is pretty clear here. Subject matter jurisdiction is foundational and therefore it has to be applied retroactively because those courts never had jurisdiction and that means that we have to allow it to be applied at any time.”
As I had said in previous videos, the Oklahoma Court of Criminal Appeals is extremely conservative on convictions. A lot of times will bend over backward to find a way to save one.
So it is my opinion if the Court of Criminal Appeals couldn’t find a way to save these convictions in the post-conviction relief cases, then it’s going to be very difficult for anybody else, including the United States Supreme Court, to try to do so.
But since Bosse was decided in March, the state requested a stay that was granted ultimately by the United States Supreme Court, and they have just recently filed a petition for writ of cert to take the Bosse case up on appeal to the United States Supreme Court.
So while that is pending, we get this more recent case, Matloff V Wallace that is addressing a conviction that the defendant seeking collateral review of a conviction where it’s asserting that the court lacked jurisdiction based on McGirt.
And there’s a pivot in here, and this is based on arguments that the state is making in the Bosse appeal, and the court is saying, “Oh, we weren’t aware of these possible allegations or these possible arguments that could be made and now we’re aware of those we want to apply them here.”
But, really, it’s a switch of framing of the issues, and you can see it in the opinion. We’re moving away from talking about subject matter jurisdiction, which is so clear in Oklahoma law and can never be waived, and we’re to instead classify it and frame it as an issue of a new procedural rule.
So rather than it is an acknowledgment that the historic reservations were never disestablished and therefore the state courts lack jurisdiction, we’re going to say, “Well, this is a new procedural rule that we have found, like in the Miranda decision where we decided that you have to advise somebody of their rights.”
That’s a new procedural rule. The court determined, “Let’s apply that prospectively. We’re not going to apply it retrospectively and re-litigate all the prior convictions where confessions were used without giving a Miranda warning.” Cause that’s a new procedural rule that allows them to apply a different test.
So by reframing this issue as rather than subject matter jurisdiction, they’re minimizing that a little bit, although they have it in there. Instead, we’re going to focus on it being a new procedural rule so we can talk about using that test, which would give the Oklahoma Court of Criminal Appeals, the authority to say, “You know what? We’re not going to apply it retroactively.”
And that’s exactly what they’ve done here, is that they’ve said, “Okay, we’re going to apply this test, new procedural rule, and we’re going to say that we don’t have to apply it retroactively and we’re going to elect not to apply it retroactively because that means that all of these old cases have to be re-litigated and it means that guilty people may ultimately end up going free.”
And I can certainly understand the desire of the court to do that. It’s just unfortunate that it is so obvious in the opinion that it is a results-based analysis that we know that we want to uphold these convictions and not allow these people to file for post-conviction relief.
Now we just need to find some argument that will work, and in Bosse, they tried, but they couldn’t find any argument that worked. But now they’ve latched on to this based on the state making that request in the documents that they filed with the United States Supreme Court to stay the Bosse decision.
And since then, there have been some political movements as well. There’s been a PR campaign by the Governor of the State of Oklahoma and various prosecutors against the McGirt decision and trying to limit it, and it seems that that has had its effect.
One other difference between March, when this Bosse case was decided, and now when the Matloff V Wallace case was decided is we have a little bit of a change on the composition of the court. And I’ve done a separate video on this where I noted that it’s concerning that Judge Kuehn has been appointed to the United States Supreme Court.
However, I said that a little bit ironic, because it is concerning, not because she is not a good judge, she’s a fantastic judge, she is a judge that provides good opinions and very good dissent as she has been on the Oklahoma Court of Criminal Appeals.
But now that she’s ascended to the Oklahoma Supreme Court, that means she is off the Oklahoma Court of Criminal Appeals and her dissents there and the reasoning that she’s put in many of the cases there that have been a little bit more favorable to protecting rights is going to be missed, and the concern was this could be very bad for the State of Oklahoma, not because she’s being put on the Oklahoma Supreme Court, but because that means she’s being removed from the Oklahoma Court of Criminal Appeals.
And now we have one of the first opinions without Judge Kuehn on it and this is what it does, it reverses a prior decision, clear cut backtrack on what was decided in Bosse. And not just Bosse either.
They also decided this in McGirt itself and Murphy and two or three other cases that were dismissed based on McGirt on post-conviction motions that now they say shouldn’t apply to any of them.
So we don’t know exactly what Judge Kuehn would have done on this or whether it would have made any difference, but it is interesting to note that this change occurred after she was off that court and did not participate in this decision. So there’s going to be a lot of repercussions to this.
It’s certainly going to delay some things as far as the resolution of the post-conviction relief. It is going to change our perspective if we’re representing defendants, whereas before with Bosse being a favorable precedent from Oklahoma’s highest criminal pellet court, we wanted to move forward with these post-conviction releases.
Now, we’re going to be slowing them down and saying, “Well, maybe we should stay this case. Let’s wait for the United States Supreme Court to pick up Bosse and find out what happens there.” There are a lot more details here about some of the arguments that the court utilized.
I think they can be distinguished, but you can see in the writing that they’re trying to set this up in such a way that they’re saying it’s a state court issue.
It’s based on state law. It’s not based on federal law. And all of that is to try to avoid the United States Supreme Court taking up this issue and doing something different than what they did in this case as opposed to what they did in Bosse.
So a lot to unpack here. Hopefully, that answers some of your questions. If you’ve got additional questions and there are general questions, you can post them in the comments section of this video.
If you’ve got something specific about your case, don’t post that publicly. You’re going to want to talk to an attorney privately about that. To get that scheduled, go online to makelaweasy.com.