Textualism and Another Broken Promise: Retroactivity and McGirt v. Oklahoma

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Southern California Review of Law and Social Justice


On July 9, 2020, the United States Supreme Court handed down McGirt v. Oklahoma, one of the Court’s most consequential decisions concerning Indian law and tribal sovereignty. Employing an expressly textualist approach to interpret the applicable federal treaties and statutes, Justice Neil Gorsuch’s eloquent majority opinion found that Congress has not disestablished the Muscogee (Creek) Reservation in Eastern Oklahoma and that under federal law, Oklahoma has no power to prosecute Indians who commit crimes on the reservation. Oklahoma responded to McGirt with resistance and outrage. Soon, this landmark decision faced contentious litigation in state and federal court, much of it instigated by the State of Oklahoma. Less than two years after McGirt, the Supreme Court denied certiorari review in Parish v. Oklahoma and granted review in Oklahoma v. Castro-Huerta. Then a newly configured Supreme Court majority limited McGirt and the scope of tribal sovereignty.

This article focuses on the issue that was raised in the certiorari petition in Parish v. Oklahoma: whether McGirt applies to all defendants who were convicted and sentenced by state courts that lacked subject matter jurisdiction or applies only to a small subset of defendants whose unlawful convictions and sentences were not final at the time the Supreme Court issued McGirt in July of 2020. Clifton Parish, a defendant who was convicted in a state court lacking subject matter jurisdiction, raised this issue in a certiorari petition to the U.S. Supreme Court. However, unlike Oklahoma’s request for certiorari review in Castro-Huerta, the Supreme Court denied certiorari review to Mr. Parish. The Court’s refusal to hear Parish’s petition and the issue of the retroactive scope of McGirt is relevant not only for those defendants seeking the benefit of McGirt, but also it is relevant to assessing the Court’s commitment to textualism, the role of stare decisis, and the values the Court purported to set out in McGirt.