Supreme Court lets stand decision that McGirt not retroactive. The U.S. Supreme Court on Monday put off a decision on whether to review its ruling that reshaped criminal jurisdiction in eastern Oklahoma, but justices let stand a decision by the Oklahoma Court of Criminal Appeals that greatly limits the number of people who can challenge their convictions for past crimes on newly affirmed Indian reservations.
Justices are scheduled to discuss again privately on Friday whether to review the court’s 2020 ruling in the case of McGirt v Oklahoma that the Muscogee (Creek) reservation was never disestablished. That ruling has led to the affirmation of five other reservations in Oklahoma and has shifted criminal jurisdiction to the federal government and tribes in cases that involve Native Americans on the reservations.
The Oklahoma attorney general’s office has filed dozens of petitions asking the U.S. Supreme Court to reverse the McGirt decision or, short of that, to declare that Oklahoma can still prosecute non-Indians for crimes committed against Native Americans on the reservations.
Under federal law, federal and tribal courts must prosecute cases involving Native Americans in Indian country.
The court’s refusal to review the case of Clifton Merrill Parish and two others on Monday was a victory for the state. The Oklahoma Court of Criminal Appeals ruled in Parish’s case that, even though he is a Choctaw and his crime was committed on the Choctaw reservation, he could not appeal his prosecution by the state because his conviction had already been upheld on an earlier appeal in which he did not make a jurisdictional claim.
The Oklahoma Court of Criminal Appeals decision that the McGirt decision was not retroactive greatly limited the number of people who could appeal past convictions, potentially cutting off thousands of appeals.
The state court reasoned that the Supreme Court’s decision in McGirt was simply a new procedural rule and said “new rules generally do not apply retroactively to convictions that are final, with a few narrow exceptions.”
“McGirt was never intended to annul decades of final convictions for crimes that might never be prosecuted in federal court; to free scores of convicted prisoners before their sentences were served; or to allow major crimes committed by, or against, Indians to go unpunished,” the court said in its decision, handed down in August.
Attorneys for Parish, who was convicted of second-degree murder, asked the U.S. Supreme Court to reverse the state court’s ruling, arguing that the McGirt decision had “constitutional force” and was not just a procedural rule.
“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 attorneys told the high court.
The court declined Parish’s appeal on Monday without comment, along with two related appeals filed for Gary Compelleebee and Keith Elmo Davis.
Other appeals have been filed challenging the Oklahoma Court of Criminal Appeals ruling, including one for death row inmate Shaun Michael Bosse. The state court had initially ruled that Bosse was wrongly prosecuted by the state because he murdered three Chickasaw Nation members on the tribe’s reservation. However, the court reversed itself on Bosse after its ruling that the McGirt decision wasn’t retroactive. Bosse had already lost a direct appeal before McGirt was decided and he had not previously raised the issue of jurisdiction.
Oklahoma Attorney General John O’Connor said Monday that upholding the ruling that McGirt was not retroactive was “an important victory for the safety of victims, families of victims, and the people of Oklahoma.”
He said, “Victims and their families will not be required to relive their tragic experiences by testifying in new trials, or worse, seeing the perpetrators out in society.”