Law & Principles

Court rules McGirt not retroactive

August 12, 2021

Ray Carter

In a reversal of prior rulings, the Oklahoma Court of Criminal Appeals has concluded that the U.S. Supreme Court’s ruling in McGirt v. Oklahoma, which effectively decided that Indian reservations comprise most of eastern Oklahoma for purposes of the federal Major Crimes Act, is not retroactive.

“Applying new procedural rules to final convictions, after a trial or guilty plea and appellate review according to then-existing procedures, invites burdensome litigation and potential reversals unrelated to accurate verdicts, undermining the deterrent effect of the criminal law,” the court opinion states.

Clifton Parish was convicted and sentenced to a 25-year sentence for the 2010 beating and shooting death of Robert Strickland. A lower court subsequently ruled the state lacked the authority to prosecute Parish because of the McGirt decision. Parish is American Indian and committed the crime on what is now considered the Choctaw Reservation per McGirt.

However, the Oklahoma Court of Criminal Appeals overturned that decision, declaring that “we hold today that McGirt v. Oklahoma announced a new rule of criminal procedure which we decline to apply retroactively in a state post-conviction proceeding to void a final conviction.”

“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 opinion states.

The court majority noted it had previously vacated several convictions in response to McGirt, but said those actions were taken “without our attention ever having been drawn to the potential non-retroactivity of McGirt” in light of a prior federal Court of Appeals’ opinion in a similar case.

After reviewing those prior federal court rulings, the Oklahoma Court of Criminal Appeals ruled that McGirt does not apply retroactively even though the court reaffirmed “our recognition of the Cherokee, Choctaw, and Chickasaw Reservations.”

The court noted that the McGirt ruling “raises no serious questions about the truth-finding function of the state courts” that tried Parish and others now citing McGirt to have their sentences vacated. The opinion also noted that being tried in a state court “did not affect the procedural protections” of defendants and that Parish’s state trial “produced an accurate picture of his criminal conduct.”

“A reversal of Mr. Parish’s final conviction now undoubtedly would be a monumental victory for him, but it would not be justice,” the opinion states.

The ruling could reduce the likelihood that thousands of convicted criminals will either have to be retried in federal court or freed from prison as a result of McGirt, and the decision was issued against the wishes of four tribal entities.

In a state brief filed in a separate McGirt-related case pending before the U.S. Supreme Court, the office of the Oklahoma attorney general has noted that more than 3,000 applications for postconviction relief have been filed by prisoners seeking to overturn their state convictions based on McGirt and the Oklahoma Department of Corrections has already released more than 150 prisoners, about half of whom will not face retrial.

Those figures may represent only the tip of the iceberg. Oklahoma district attorneys have determined that, since 2005, at least 76,000 of the non-traffic criminal cases filed in Oklahoma state court involved an Indian perpetrator or victim.

While the Oklahoma Court of Criminal Appeals decision may provide greater clarity regarding prior convictions for crimes committed by or against Indian citizens in eastern Oklahoma, it does not resolve jurisdictional chaos created by the ruling for crimes now being committed in eastern Oklahoma.

Under McGirt, state officials cannot prosecute crimes committed by or against American Indian citizens on the reservations that now comprise most of eastern Oklahoma, and tribal police cannot prosecute non-Indians and have limited power to prosecute crimes involving only tribal citizens. That places the federal government in charge of prosecuting most crimes in eastern Oklahoma that involve a tribal criminal or victim, but federal officials have declined to prosecute roughly 90 percent or more of crimes referred to them, focusing on only the most heinous.

The state estimates that defendants in approximately 6,000 pending criminal cases are seeking dismissal under McGirt while the Federal Bureau of Investigation estimates it will handle 7,500 additional cases in 2022 because of the McGirt decision.

An amici curiae brief filed in the Parish case by the Cherokee Nation, Chickasaw Nation, Choctaw Nation, and Muscogee Nation argued that the “retroactive effect of Murphy and McGirt on collateral review of state criminal convictions has been established.”

(The referenced Murphy v. Royal case was similar to the McGirt case.)

But the Oklahoma Court of Criminal Appeals rejected that argument, noting in strong language the severe real-world impacts that would accrue.

“We cannot and will not ignore the disruptive and costly consequences that retroactive application of McGirt would now have; the shattered expectations of so many crime victims that the ordeal of prosecution would assure punishment of the offender; the trauma, expense, and uncertainty awaiting victims and witnesses in federal re-trials; the outright release of many major crime offenders due to the impracticability of new prosecutions; and the incalculable loss to agencies and officers who have reasonably labored for decades to apprehend, prosecute, defend, and punish those convicted of major crimes; all owing to a longstanding and widespread, but ultimately mistaken, understanding of the law,” the Oklahoma Court of Criminal Appeals opinion states.

While tribal governments argued that McGirt did not represent a “new” set of criminal procedures, the Oklahoma Court of Criminal Appeals concluded otherwise, noting the history of prosecutions for a century prior to McGirt showed no one believed Oklahoma’s reservations were not dissolved at statehood. Based on prior federal rulings in similar instances, the court concluded that state prosecutions that occurred during that time must stand.

“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 opinion states. “The Supreme Court’s intent, as we understand it, was to fairly and conclusively determine the claimed existence and geographic extent of the reservation.”