This Case Will Not Be a Quick Process
Video Transcribed: The United States Supreme Court has set a conference date for the Wallace case. I’m Oklahoma attorney James Wirth. Got a little bit of an update for you regarding all of the issues in Oklahoma related to McGirt.
This particularly has to do with the retroactive application of McGirt. So as y’all are probably already aware, McGirt basically redefined what is Indian country in Oklahoma by finding that the Muscogee Creek Nation had never been disestablished, which has since been applied to all five of the five civilized tribes, as well as at least one other tribe outside of that.
So it changed our definition and understanding of what Indian country is. There were already a lot of rules on how prosecutions and jurisdiction work for Indian country. McGirt just says Indian country’s way more land that we thought, basically all of Northeast Oklahoma.
Now, because of that, the state lacked subject matter jurisdiction to charge Indians for crimes that occurred in that territory. And then the question became that means that defendants can file to vacate those sentences because the court never had jurisdiction. And in Bosse, the court decided, Oklahoma Court of Criminal Appeals initially decided that, well, subject matter jurisdiction can never be waived because that’s what prior precedent says, subject matter jurisdiction can never be waived.
However, a few months after Bosse was decided, the Oklahoma Court of Criminal Appeals decided Wallace and said that, “You know what? We’re going to call it a new procedural rule rather than keep mentioning it as subject matter jurisdiction.” They never definitively said that it’s not a subject matter jurisdiction. In fact, they’re still implicitly acknowledging that it is, but they don’t use that terminology as much.
And they use more terminology of a procedural new rule, and that because it’s a new procedural rule, we’re going to go ahead and make a new rule that says that we can decide whether that has retroactive application or not. In Wallace, they said it does not have retroactive application, which means that even though the court never had any jurisdiction to charge you, sentence you, throw you in jail, hold you before, because your sentence is final, we’re not going to let you bring up that issue now.
The post-conviction relief requests have been denied based on Wallace, but that case was appealed or has been appealed or is being appealed to the United States Supreme Court. So what news is that we have, is that the United States Supreme Court, which is getting back in session in January of 2022, in its first week back in session, has set this case along with numerous other McGirt related cases for a conference on January 7th of 2022.
So there is a date set for those Justices to decide conference deliberate and ultimately make a determination on whether they’re going to accept that appeal. The great majority of cases that are appealed to the United States Supreme Court are not accepted. So that is the norm. Is this case going to be the exception?
Obviously, it has far-reaching ramifications for many people involved. And the decision in Wallace by the Oklahoma Court of Criminal Appeals is based on very loose arguments, factual and legal arguments. So there is good reason to hope or believe that it will be accepted by the United States Supreme Court.
However, the state’s argument is this, “Well, this is a state issue. We’re interpreting state law. It’s not a constitutional issue. Therefore, the Fed should not get involved. The Supreme Court should not get involved.”
Those are the two sides arguing for whether the petition for writ of certiorari should be granted or not. Ultimately, those hoping that the court will accept it, need four votes of the nine Justices to decide to accept cert. If they accept cert, that means that the court is going to decide the case.
But this is not going to be a quick process. Even if the court made the determination that they’re going to accept the case during this conference on January 7th, that doesn’t mean that it’s going to be soon at all, and that doesn’t mean that they’re actually going to decide it that day. Once they decide it, that means the parties have an opportunity to brief it.
It means that friends of the court or amicus briefs could be filed as well and that it would set for a determination potentially including oral arguments at a later date. So it’s going to be a slow process, but at least we see some movement in the cases moving forward. It is set for conference to conference over whether the Supreme Court will accept the case.
But if you’ve got questions about McGirt, Bosse, Wallace, how any of these things fit together, you’re going to want to talk to an attorney specifically about your circumstances. You’re going to want to do that confidentially. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.