Inmate argues Supreme Court decision in McGirt retroactive
The U.S. Supreme Court’s ruling last year that Oklahoma had no criminal jurisdiction over a Native American on the Muscogee Creek reservation should apply to all prior criminal cases in Oklahoma involving Indians on reservations, lawyers for a Native American inmate told the court this week.
Apetition filed on Wednesday for Clifton Merrill Parish says the Oklahoma Court of Criminal Appeals wrongly decided in August that the Supreme Court’s ruling in McGirt v. Oklahoma was not retroactive and didn’t apply to Parish.
“If allowed to stand, the Oklahoma court’s decision will leave thousands of individuals with state convictions that the State had no authority to impose,” the petition states.
The Supreme Court, which begins its new term on Monday, now has several petitions pending regarding the McGirt decision. The state of Oklahoma wants the high court to reverse its 2020 ruling, or, short of that, at least allow the state to prosecute non-Indians who commit crimes involving Native Americans on reservations.
Oklahoma Attorney General John O’Connor has filed petitions in more than a dozen criminal cases seeking the reversal of the McGirt decision.
The Parish petition, filed by attorneys in Oklahoma, California and Washington, D.C., seeks the opposite of the state’s goal to reverse McGirt. It asks the justices to declare that all state convictions for crimes involving Indians on reservations in Oklahoma should be overturned.
In the McGirt decision, issued in July 2020, the Supreme Court ruled that convicted child rapist Jimcy McGirt, a Native American, should have been tried in federal court because his crimes were committed on the Muscogee (Creek) reservation, which was never officially disestablished when Oklahoma became a state.
The federal Major Crimes Act and the General Crimes Act grant criminal jurisdiction to federal and tribal courts in cases involving Indians in Indian country. The Oklahoma Court of Criminal Appeals this year extended the McGirt decision to the Cherokee, Chickasaw, Choctaw and Seminole reservations, meaning most of eastern Oklahoma and some central Oklahoma counties are now Indian country for purposes of criminal jurisdiction.
State courts reversed dozens of convictions in the wake of the rulings, including many that were years and even decades old. The Oklahoma Court of Criminal Appeals was among the courts that reversed convictions, but it changed course after Pushmataha County District Attorney Mark Matloff challenged a judge’s ruling that the state lacked jurisdiction to prosecute Parish for murder in 2012.
Matloff argued that Parish never raised the issue of jurisdiction when he unsuccessfully appealed his conviction several years ago and shouldn’t be allowed to raise it now because the McGirt decision did not retroactively apply to convictions deemed final.
The Court of Criminal Appeals agreed, ruling in August that the McGirt decision was a new rule of criminal procedure.
“New rules of criminal procedure generally apply to cases pending on direct appeal when the rule is announced, with no exception for cases where the rule is a clear break with past law,” the court said.
“But new rules generally do not apply retroactively to convictions that are final, with a few narrow exceptions.”
Since that decision, the Oklahoma Court of Criminal Appeals has continued to overturn McGirt-related convictions on direct appeal. But it has denied relief in the older cases that had already been upheld on direct appeal. In the petition filed Wednesday with the U.S. Supreme Court, attorneys for Parish argued that the Oklahoma Court of Criminal Appeals was trying to preserve “legally void convictions that the State never had authority to impose.”
The state court’s decision violates “bedrock principles of due process and centuries-old understandings of habeas corpus,” the petition states.
“A conviction cannot stand where a State lacks authority to criminalize the conduct, and habeas courts have long set aside judgments by a court that lacks Jurisdiction.”
The state’s response to the petition is due by Oct. 29. O’Connor in August hailed the decision by the Oklahoma Court of Criminal Appeals regarding retroactivity, calling it an “important victory for the people of Oklahoma.”
The Supreme Court will likely not decide for several weeks whether to revisit the McGirt ruling, either by reviewing the state’s petitions or the Parish case. Though the justices have several opportunities to refine the decision, they may choose not to.