Law & Principles
Ray Carter | January 11, 2022
U.S. Supreme Court allows McGirt limit to stand
The U.S. Supreme Court has denied a petition for certiorari, leaving in place an Oklahoma Court of Criminal Appeals’ decision declaring the high court’s McGirt ruling will not be applied retroactively.
In McGirt v. Oklahoma, the U.S. Supreme Court held that a major reservation was never formally disestablished in Oklahoma for purposes of the federal Major Crimes Act. As a result, throughout much of eastern Oklahoma most crimes committed on reservation land that involve a mix of Indians and non-Indians must be prosecuted by federal law enforcement, not state or tribal officials.
The decision has created enormous jurisdictional chaos in Oklahoma, but the impact was somewhat mitigated last year when the Oklahoma Court of Criminal Appeals concluded the ruling was not retroactive.
Clifton Parish was convicted and sentenced to a 25-year sentence for the 2010 beating and shooting death of Robert Strickland. However, because Parish is American Indian and committed the crime on what is now considered the Choctaw Reservation per McGirt, he sought to have his sentence overturned.
A lower court initially ruled in Parish’s favor, but the Oklahoma Court of Criminal Appeals overturned that decision when it ruled that McGirt did not apply retroactively.
Be denying certiorari, the U.S. Supreme Court allowed the Oklahoma Court of Criminal Appeals’ decision to stand.
Oklahoma Attorney General John O’Connor hailed the high court’s decision.
“This is an important victory for the safety of victims, families of victims, and the people of Oklahoma,” O’Connor 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.”
The decision provides clarity for a huge number of cases. 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 previously noted that over 3,000 applications for postconviction relief had been filed by prisoners seeking to overturn their state convictions based on McGirt. Oklahoma district attorneys 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.
The Cherokee, Chickasaw, Choctaw, and Muscogee (Creek) Nations, although they declined to file a brief in the Supreme Court, previously filed a brief in Oklahoma’s highest criminal court encouraging the retroactive application of McGirt, which would have voided long-final criminal convictions. The tribes were joined in their position by the Oklahoma Criminal Defense Lawyers Association.
The state of Oklahoma is seeking to have McGirt revisited by the U.S. Supreme Court in an attempt to have it overturned or narrowed. The court has not yet ruled on that petition.
“We are hopeful that this is the first step in having the McGirt decision overturned or clarified and limited,” O’Connor said. “Even without retroactive application, McGirt has opened prison doors and let violent criminals go free.”
Director, Center for Independent Journalism
Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.