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Supreme Court lets ruling stand on 'McGirt v. Oklahoma' retroactivity; no decision yet on reconsideration

J. Scott Applewhite

The U.S. Supreme Court on Monday let a lower court ruling stand that said McGirt v. Oklahoma could not be applied retroactively.

The high court denied all three petitions that sought to reverse the prior decision on cases seeking post-conviction relief. Only cases after July 9, 2020 are eligible for a re-hearing.

The court also decided to hold all the post-McGirt petitions. Those pending 33 petitions asked the Supreme Court to either overturn McGirt v. Oklahoma or narrowly rule that the state can share concurrent jurisdiction could be on next week's order list.

Monday was one of the last days SCOTUS could issue orders to deny or grant petitions to the court.

The landmark McGirt v. Oklahoma ruling said the Muscogee Nation's reservation was never disestablished and returned criminal jurisdiction to the tribal nation. That means felony cases involving Native Americans when they occur on reservation land must be tried in federal or tribal court.

A fight over tribal sovereignty

Quapaw Nation tribal chairman Joseph Byrd said what's at stake with the Supreme Court’s decision is tribal sovereignty.

"The Court is tasked with addressing whether the rule of law still governs or if treaties can be broken as they have throughout history," Byrd told OPMX.

The Oklahoma Court of Criminal Appeals ruled in October that the McGirt decision transcends the Five Tribes. The court ruled the Quapaw Nation's reservation was never disestablished.

Byrd said regardless of what the outcome is, the Quapaw Nation is working to make their reservation safe by implementing new codes and investing in their criminal justice system.

So far, Quapaw Nation has cross deputization agreements with the town of Quapaw, Ottawa County and Cherokee County in Kansas. Since October, they've doubled their caseload for criminal cases and tripled their caseload for protective orders. They've also increased their court docket days from twice a month to four docket days a month and are considering adding another docket as they continue to see an increase in case count.

"Our next steps are continuing to develop our tribal codes, judiciary, courts, and even detention because we are committed to public safety within our reservation," said Byrd. “That's tribal sovereignty.”

Oklahoma Gov. Kevin Stitt has said the ruling has created "chaos" and crimes are going unpunished, and the state’s Attorney General John O'Connor has filed a stack of appeals to get the ruling overturned or modified.

In a statement released to the press, Okla. Attorney General John O'Connor said the Supreme Court's ruling was a, "major victory for the state of Oklahoma."

But the tribal nations affected say it is not chaos. They have prosecuted thousands of crimes and changed criminal codes and agreements with local police.

Principal Chief David Hill of the Muscogee Nation said, "The time is long past due for Gov. Stitt to shut down his political campaign of obstruction and work with us to embrace a better future. I hope the Supreme Court will take the opportunity to tell him so."

McGirt petitions, a breakdown

Of the 45 petitions filed by the state, 33 were distributed on Dec. 8 to the Justices for consideration at the Court’s Jan. 7, 2022 conference.

Of these, five petitions present both questions: narrowly rule that the state has concurrent jurisdiction and overturn McGirt v. Oklahoma entirely.

Additionally, the Wallace petitions dealt directly with whether the McGirt decision applies to crimes that occurred before the ruling that came down on July 9, 2020.

Fifteen defendants filed petitions seeking review of the Oklahoma Court of Criminal Appeals decision in Wallace, presenting the question of whether McGirt must be applied even in instances where a conviction was final prior to the Court’s decision on July 9, 2020.

Of these petitions, three were distributed Monday to the Justices for consideration at the Court’s Jan. 7, 2022 conference.

McGirt is a change in the way Oklahoma has run the criminal justice system. It has created more financial burden on tribal nations as they have had to increase their criminal justice budgets. Last year, all tribal nations called on the federal government to increase the money allotted for criminal justice. It's part of their federal trust responsibility, say leaders of the Five Tribes.

Additionally, the U.S. Attorney's Office for the Northern District has asked for more money in the wake of the decision, as their caseloads have increased. The Five Tribes have also increased their cross-deputization agreements and hired more tribal police officers in the wake of the decision.

This report was produced by the Oklahoma Public Media Exchange, a collaboration of public media organizations. Help support collaborative journalism by donating at the link at the top of this webpage.

Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs desk.
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