TAHLEQUAH – Criminal cases eligible for review under 2020’s landmark McGirt v. Oklahoma ruling has narrowed following a recent state decision that closed doors to convictions finalized pre-McGirt.

A year after the McGirt ruling, the Oklahoma Court of Criminal Appeals ruled that it did not apply retroactively.

“They read McGirt to only apply prospectively from the day of the decision forward as to pre-conviction cases,” Ralph Keen II, attorney and Cherokee Nation citizen, said. “That’s a huge decision. It changed everything again. Convictions that span back over the last 30 years are affected by this. If you didn’t appeal it within your original 30 days, too bad, so sad, you’re still convicted; you lose.”

The U.S. Supreme Court’s July 2020 McGirt ruling affirmed the Muscogee (Creek) Nation’s reservation status when the court agreed with a Seminole Nation citizen who claimed that he should have been tried in federal court, not Oklahoma, for a crime committed on reservation land. Subsequent state rulings have affirmed reservation status for the other Five Tribes.

“I’ve been a student of federal Indian law since I’ve been practicing for 25 years,” Keen said. “So whenever McGirt was handed down I was surprised – I was pleasantly surprised – that we had a Supreme Court that had both the authority and the gumption to stand up for Native American rights and say a treaty is a treaty. From just a scholarly standpoint, it’s been the biggest decision handed down here in the Five Tribes during my lifetime for sure, and maybe the biggest one ever.”

The recent OCCA ruling in Matloff v. Wallace potentially affects hundreds of state convictions the court previously overturned. Oklahoma inmates who thought they would get a new trial in federal court based on McGirt, including some on death row, could remain in state prison with their sentences upheld.

Federal convictions would not be affected, according to the U.S. Attorney’s Office for the Northern District of Oklahoma. CN Attorney General Sara Hill recently told the Tribal Council that the state’s newest decision “really closes the door on a number of cases” that might have been overturned under McGirt.

“So if you had a case and you were sentenced and you had exhausted all of your appeals in 2012,” she said, “you couldn’t then ask the court to go back and apply McGirt to your conviction and undo that criminal conviction.”

Earlier this year, the OCCA overturned the convictions and sentences of two Oklahoma death row inmates under McGirt. But on Oct. 7, appeals from Shaun Michael Bosse, 38, and Benjamin Robert Cole Sr., 56, both convicted of murder, were rejected based on the Aug. 12 ruling that McGirt does not apply retroactively.

Keen said he has post-conviction motions pending in Cherokee, Adair and Washington counties for McGirt-related cases that range from drug verdicts to property law.

“The people I’m representing, they’ve essentially done their time and paid the crime,” he said. “They’re trying to either get it wiped off their record or avoid having to pay tens of thousands of dollars into a system that wrongfully convicted them.”

Three of Keen’s cases are directly affected by the newest OCCA decision.

“So we’re still in a holding pattern,” he said, adding that the state’s “poorly reasoned” ruling will be appealed. “The question is whether or not it’s going to stand scrutiny either before the 10th Circuit or the Supreme Court. I don’t think that it will stand up to constitutional muster in the federal courts.”

In his concurring opinion on Matloff v. Wallace, OCCA Judge Gary Lumpkin stated, “We now adopt the federal policy and established precedent of selective retroactive application in these type of cases due to the ramifications retroactive application would have on the criminal justice system and victims.” That decision, Keen said, is “based on convenient policy, not the law.”

“At least he was honest enough to say this really doesn’t make sense in a legal context, but it sure is convenient,” Keen said. “Everything that I’ve been taught in law school and everything I’ve learned through 25 years of practice and experience tells me this is wrong. There’s no way this should be upheld on appeal.”

Over the past year, Keen said, Oklahoma and Indian law history has unfolded “right before our eyes.”

“But so far, if you look at all the various times that the state of Oklahoma has gone up against the tribes concerning treaty rights or Indian law doctrines, almost uniformly they’ve lost,” he said. “It’s just a series of minor battles. The tribes lost this battle, but the war’s not over yet.”