Oklahoma Wants to Overturn McGirt Completely
Video Transcribed: Petition for Writ of Certiorari filed with the United States Supreme Court in Bosse. I’m an Indian Country attorney, James Wirth.
We’re following up with the Bosse case and what the status is of that. Just got a copy here of the petition for Writ of Certiorari. That is from the state of Oklahoma filing an appeal in the Bosse case.
In the Bosse case in March of 2021, the Oklahoma Court of Criminal Appeals decided that, contrary to what the state wanted, that it was going to apply McGirt to the post-conviction relief case, finding that it’s a subject matter jurisdiction issue, that it can never be waived, and that McGirt and it’s other related precedents deprived the court of subject matter jurisdiction, even when the defendant is non-native if the victims of the crime are native.
They requested a stay originally from the United States Supreme Court on Bosse to prevent that published precedent from being utilized. In-state courts and other post-conviction relief cases, the United States Supreme Court accepted that filing, granted the stay, giving the state of Oklahoma time to file a petition for writ.
They have now filed that where they are formally requesting the United States Supreme Court take on the case. Now, generally, it is recommended that when you file with the United States Supreme Court you narrow your issues because they will only look at one or two.
I remember when I filed a case with the United States Supreme Court and was looking into it, it was strongly recommended that you do not make more than three requests for questions presented.
In this case, the state kind of went with that maximum three so what are they requesting? First off, they’re requesting and stating that the state should be allowed to impose procedural or equitable bars to post-conviction relief based on McGirt.
Basically, they want a reason to deny the dismissal of cases, even acknowledging the court had no jurisdiction to charge, prosecute, convict, confine in the first place, they’re wanting to use equitable and procedural bars to say, “Well yeah, we should have never done that, never had the authority, but it’s too late for you to raise it now or we can’t apply this retroactively.”
Now, that’s the first thing that they’re requesting. The second one, whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country, they want to carve out crimes committed against Indians by non-Indians to allow the state to still prosecute non-Indians.
They want to carve that out. Then the third one, whether McGirt v Oklahoma should be overruled. McGirt v Oklahoma was just decided last year by the United States Supreme Court and here we are a year later and the state of Oklahoma is going back and saying, “We want a redo. We want you to decide that differently, overturn a decision from just last year.”
Those are the three questions presented, and they’ve got arguments in there for those. Now, it’s important to note that although the United States Supreme Court granted the stay, the United States Supreme Court is yet to actually accept the case.
In order to grant cert, four of the nine justices have to vote in favor of that. That vote has not occurred yet. This was just filmed on August 6 of 2021, there hasn’t been sufficient time for that.
That’s what will be the next step, is that they will review it, then the justices will vote. If four accept the case, then it will be on the docket for the next term to be decided.
Now, since this was filed there has been a huge development in the state of Oklahoma related to McGirt, and that is that the Oklahoma Court of Criminal Appeals that decided Bosse and was very explicit that this has to apply retroactively, almost to the point where they are saying, “Well, if there were any way to avoid applying this retroactively we would, but because it’s subject matter jurisdiction there is no way so it’s got to apply retroactively.”
Well, now a few months later after that, they’ve decided Matloff v Wallace where they’ve decided the exact opposite. Now they have effectively overruled their reasoning in the prior cases of the Oklahoma case of McGirt, and Murphy, and Bosse, and a few other ones in saying that, “No, this is not a subject matter jurisdiction issue, or it is but we’re not going to talk about that, that much.
We’re going to frame it more as a new procedural rule. That way, we can apply a different rule to determine whether it’s retroactive or not, and we’ve done that and it’s not retroactive anymore.”
Essentially, the Oklahoma Criminal Court of Appeals is now in agreement with the state related to the first question presented on the Bosse appeal.
Very interestingly, if strategically the state of Oklahoma could withdraw its petition for cert and then it would essentially have won that issue because the state’s highest court now agrees with them and has overruled Bosse itself.
That would be the law of the land in Oklahoma from that point forward and it would be up for the defendant or Matloff v Wallace to appeal that up to the United States Supreme Court.
If the state did withdraw that, that means that they would not be able to move forward on questions presented, two and three, which the state of Oklahoma wants to overturn McGirt completely so they’re not likely to do that.
Now, rather than just the state hoping that the United States Supreme Court takes up Bosse, now defendants and their counsel are going to be arguing or hoping that Bosse is taken up by the United States Supreme Court so that we can get a decision that is definitive and kind of resolves the two decisions from the Oklahoma Court of Criminal Appeals that decided it 180 degrees differently three months apart.
That is filed. Now we’re waiting for a decision on whether the court is going to accept that appeal. If you’ve got questions about McGirt or your case specifically, you’re going to want to talk to an attorney about that. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.