O’Connor files new McGirt petitions
Seeks Supreme Court reversal of decision
Oklahoma Attorney General John O’Connor filed two new petitions with the U.S. Supreme Court on Friday seeking the reversal of last year’s decision reaffirming the Muscogee reservation, or at least a ruling that Oklahoma still has jurisdiction over some crimes involving Native Americans in Indian Country.
Both petitions focus on cases in which the Supreme Court’s decision in McGirt versus Oklahoma led to the reversal of convictions of crimes committed by non-Indians against Native Americans.
O’Connor argues in the petitions that neither federal law nor U.S. Supreme Court precedents bar state prosecution of non-Indians accused of committing crimes against Native Americans in Indian Country and that the Oklahoma Court of Criminal Appeals was wrong to reverse convictions on those grounds.
A state “has legitimate interests both in protecting its Indian citizens and in enforcing its criminal laws against non-Indian citizens,” O’Connor told the court on Friday.
Concurrent federal and state jurisdiction, he argued, “would further federal and tribal interests by enhancing the protection of Indians from the crimes of non-Indians — particularly here, where Oklahoma has protected such interests for over a century and the federal government demonstrably lacks the capacity and resources to take over that responsibility.”
O’Connor told the justices that the Oklahoma Court of Criminal Appeals’ position on cases involving non-Indian perpetrators is “merely a symptom of a deeper problem. That problem is McGirt itself, and the reconsideration of that decision is the only realistic avenue for ending the ongoing turmoil affecting every corner of daily life in Oklahoma.”
Those arguments came in the case of Victor Manuel Castro-Huerta, who was convicted of child neglect in Tulsa County in 2017 and sentenced to 35 years in prison. The Oklahoma Court of Criminal Appeals overturned the conviction in April, ruling that the state did not have jurisdiction to prosecute Castro-Huerta because the child was a Cherokee and the crime occurred on the Cherokee reservation.
The attorney general’s petition regarding Castro-Huerta will serve as the foundation for the state’s effort to reverse or modify the McGirt decision,
in which the Supreme Court ruled that the state had wrongly prosecuted convicted child rapist Jimcy McGirt because he was Native American and his crimes were committed on the Muscogee reservation, which had never been disestablished by Congress.
O’Connor filed a petition in August in the case of death row inmate Shaun Michael Bosse laying out the state’s arguments for reversing McGirt and recognizing concurrent jurisdiction; other McGirt-related appeals filed by the state referred justices to the Bosse petition.
However, the state withdrew the Bosse petition earlier this month after the Oklahoma Court of Criminal Appeals ruled that the McGirt decision was not retroactive and could not be raised as an issue by those whose convictions had been upheld on a previous appeal. Bosse’s convictions were reinstated because of that ruling, leaving the state to find another case in which the convictions were overturned.
Now, the state’s numerous petitions to the U.S. Supreme Court will refer to the Castro-Huerva petition for the detailed arguments in the state’s case.
The other petition filed Friday came in the case of Shawn Thomas Jones, who hit and killed two sisters while driving drunk in 2016 in Pontotoc County. Jones’ second-degree murder convictions were overturned by the Oklahoma Court of Criminal Appeals because the sisters were Chickasaws and the crime occurred on the tribe’s reservation.
The Oklahoma Court of Criminal Appeals has ruled repeatedly since the McGirt decision that the state does not have jurisdiction in any case involving Native Americans on a tribe’s reservation.
On Thursday, the court overturned the manslaughter conviction of Richard Ray Roth, who was convicted of hitting and killing a 12-year-old Cherokee boy while driving drunk on the Muscogee reservation.
The federal statute of limitations appears to have expired in the Roth case, meaning he may be freed from state custody long before completing his sentence.
In the Castro-Huerva case, federal prosecutors in Tulsa have filed charges of child neglect in Indian Country, meaning he will be transferred to federal custody if he is released from state prison.
In most of the McGirt-related cases appealed by the state to the U.S. Supreme Court, federal prosecutors have filed charges and, in some, already secured a guilty plea or a guilty verdict.
The Supreme Court could decide in the next few months whether to review any of the state’s petitions.
Also expected in the next few months is a petition seeking U.S. Supreme Court review of the Oklahoma Court of Criminal Appeals decision that the McGirt decision was not retroactive.