OCCA Now Says McGirt Not Retroactive
Video Transcribed: Wallace motion for rehearing and stay denied by the Oklahoma Court of Criminal Appeals. I’m McGirt attorney James Wirth and I got a slight update for you regarding the Wallace case.
That is the case that overruled Bosse and finding, although the state courts in Oklahoma lacked subject matter jurisdiction to charge Indians for crimes that occurred on Indian territory, the court found that that is a new procedural rule rather than just a subject matter jurisdiction issue, and therefore they can elect to adopt federal rules in saying that that is not going to be retroactive to prior cases before the court on post-conviction relief.
So that’s Wallace’s decision. Completely undid Bosse and kind of turned everything on its head. The defendant, in that case, has filed a request to stay that, asserting that they don’t want that decision to be final until the appeal in Bosse is decided or it’s decided in other the United States Supreme Court case.
And the court has denied that and said that it’s not going to stay the case. It’s not going to hear rehearing and essentially it’s going to be a final order at that point.
However, it is interesting because the defendant’s attorney, in that case, notes that Wallace will be appealed to the United States Supreme Court, that they want it stayed while that’s happening, and obviously that stay is not going to go through, but they have indicated the intent to appeal the decision to the United States Supreme Court.
Now that the Bosse appeal to the United States Supreme Court is likely to be dismissed, Wallace is likely to be the case that decides this in federal courts.
And they’ve got some good arguments for that because they’re trying to, the state court, the Oklahoma Court of Criminal Appeals is trying to characterize this as a new procedural rule, but there is good precedence that suggests that’s not the case.
And there’s plenty of precedent from the Oklahoma courts, the Oklahoma Court of Criminal Appeals that says subject matter jurisdiction can be attacked at any time and, in fact, needs to be attacked at any time because the court has a duty to ensure that it has jurisdiction.
That’s what they said in Bosse before they changed their minds and did the complete opposite a few months later in Wallace. But there are some interesting quotes from some of these cases that they’re listing as precedent. Particularly there’s one from the United States versus Johnson, 457 US 537 regarding the retroactive application.
What it says is “When a decision of the Supreme Court merely has applied settled precedence to new and different factual situations, no real question has arisen as to whether the later decision should apply retroactively. In such cases, it has been a foregone conclusion that the rule of the later case applies to earlier cases because the latter decision has not, in fact, altered that rule in any material way.
So that is the more applicable rule here rather than the new procedural rule because this is not a procedure. It’s substantive. It’s subject matter jurisdiction. And additionally, the McGirt decision, the Murphy decision, was applying a precedent that goes back to 1984.
It’s the Solem test, and the fact that it was applied to a different tribe than previously, that’s a new application. That’s the application of an old rule to new facts. It is not procedural. It is substantive. And I think that is the better review of the law.
However, when we have some courts that are inclined to make a decision-based analysis, i.e., I want the end result to be this. Now how do I find the best arguments to support what decision I want to make, then it’s difficult to know what a court will do.
But as far as the law and what we expect of someone following the law would do it, I think that would be the more appropriate way to go. So it’s likely we will see the Wallace case go to the United States Supreme Court, and this issue will be decided there and may very well overturn the Oklahoma Court of Criminal Appeals that very recently overturned itself in Bosse.
If you’ve got any questions about McGirt, Wallace, Bosse, how it may affect your friends’ or families’ cases or circumstances, you’re going to want to talk to an attorney privately confidentially about that.