Court ruling that McGirt decision not retroactive a blessing for his district, DA says

Keri Thornton, Tahlequah Daily Press, Okla.
·3 min read

Aug. 17—District 27 prosecutors say the recent state appeals court ruling that the U.S. Supreme Court's McGirt v. Oklahoma decision is not retroactive is a blessing for this area.

On Aug. 12, Oklahoma's Court of Criminal Appeals ruled that state-court convictions can't be overturned, even if the defendant or victim is Native American, or if the crime occurred on tribal land. Judges issued their decision on a court's post-McGirt dismissal of convicted murderer Clifton Parish, who is a Choctaw tribal member.

Parish was tried and found guilty of second-degree murder in 2012 by a jury. He was sentenced to 25 years in prison and didn't petition for certiorari within the allowed 90-day time period.

"On Aug. 17, 2020, Mr. Parish filed an application for post-conviction relief alleging that the state of Oklahoma lacked subject matter jurisdiction to try and sentence him for murder under the Supreme Court's decision in McGirt v. Oklahoma," the court stated in its opinion.

Associate District Judge Jana Wallace found the state lacked jurisdiction and ordered the charge of second-degree murder to be dismissed.

Pushmataha County District Attorney Mark Matloff appealed Parish's decision and stated the Supreme Court didn't specify whether McGirt could be applied retroactively.

"This case dealt with those cases that had already been subject to a final judgment in the case," said District Attorney Jack Thorp. "The Court ruled in the 'Matloff' case that, defendant's cannot use the McGirt decision to have their judgments set aside because of the jurisdictional claim, if made as part of a motion for post-conviction relief."

Local officials say the state still has jurisdiction over cases wherein both the defendant and victim are non-Native, even if the crime takes place on the 14-county Cherokee Nation "reservation." But state prosecutors do not have criminal jurisdiction over crimes involving Natives with the Chickasaw, Cherokee, and Muscogee nations, and by extension, other tribes as well.

Thorp has conveyed his concerns for victims of violent crimes, saying the ruling is bringing those cases back to square one. Thorp calls the new ruling a victory for victims of crimes and their family members.

"This has been my biggest nightmare — victims having to relive the criminal justice process," said Thorp. "We believe now that the murderers, rapists, child molesters, and other violent offenders will have to serve the terms of punishment that they were assessed for committing those crimes."

Thousands of criminal cases have been dismissed by the state due to the Supreme Court ruling. The Cherokee Nation Attorney General's Office has filed or refiled more than 1,300 cases in the its District Court since January.

"This decision does not effect the current cases that were dismissed without a final disposition. Justice in the current cases that have been dismissed by state courts, and transferred to tribal and federal courts, will continue within the jurisdiction of those courts," said Thorp.

In a statement, Sara Hill, CN attorney general, said the decision examined legal questions regarding the status of past criminal convictions and affirmed the legal status of the Cherokee Nation's reservation and that of the Choctaw and Chickasaw nations.

"As Oklahoma's governor rushes forward in an attempt to convince the Supreme Court to reverse last year's decision and break treaties and promises, Oklahoma's courts continue to work through the legal issues as they arise," Hill said. "The Cherokee Nation will continue to work with federal, state and local law enforcement to do the same."

Law enforcement officials have expressed their frustration, while tribal officials call the McGirt ruling a victory for sovereignty.

Thorp said he's prayed that past cases and judgments would be upheld since the ruling in 2020.

"This is truly a blessing for our district. Some very dangerous and evil people who have been found guilty will continue to serve the punishment they have ordered to serve. Thank goodness," he said.