"Every great magic trick consists of three parts or acts. The first part is called 'The Pledge'. The magician shows you something ordinary: a deck of cards, a bird or a man. He shows you this object. Perhaps he asks you to inspect it to see if it is indeed real, unaltered, normal. But of course... it probably isn't. The second act is called 'The Turn'. The magician takes the ordinary something and makes it do something extraordinary. Now you're looking for the secret... but you won't find it, because of course you're not really looking. You don't really want to know. You want to be fooled. But you wouldn't clap yet. Because making something disappear isn't enough; you have to bring it back. That's why every magic trick has a third act, the hardest part, the part we call 'The Prestige'." - The Prestige
Ladies and gentlemen, step right up and see the amazing Oklahoma Court of Criminal Appeals do wonders! Their latest feat of magic? Turning subject matter jurisdiction into personal jurisdiction. I'm referring to their December 14, 2023 decision of Deo v. Parish, 2023 OK CR 20.
In my last blog post I gave a brief history of the McGirt decision and I won't bore you with it here. Suffice to say that the Oklahoma Court of Criminal Appeals has been slowly dismantling that decision with a series of related cases for the last three and a half years. This might be their crowning achievement by making McGirt, as has been applied in Indian Country in Oklahoma, disappear.
For our magic trick, the Court in Deo shows us the Pledge, Billy Zane Deo, an enrolled member of the Muscogee Nation with some degree of Indian blood, who was alleged to have committed a crime in Muscogee Nation territory (Indian country) by the State of Oklahoma. He pled to a deferred sentence (not a conviction) and appeals from this case. As the facts lay it out, Billy Zane Deo is a traditional McGirt application involving subject matter jurisdiction that cannot be waived.
In the Turn, the Court makes subject matter jurisdiction in these cases disappear. However, the Court, "is no longer satisfied that Oklahoma district courts' subject matter jurisdiction is implicated in the preemption analysis." I'll spare you the details, but the Court finally comes up with this gem, "subject matter jurisdiction considers the type of controversy before the district court, not the parties, territory, or sovereigns at issue. While those other concerns may be relevant to a district court, they are not relevant to a determination of its subject matter jurisdiction."
Now for the Prestige, "Therefore, we hold that Oklahoma district courts' subject matter jurisdiction is not preempted, and Petitioner waived his claim that the trial court lacked any personal or territorial jurisdiction...." And just like that subject matter jurisdiction becomes personal jurisdiction that can be waived.
The Court goes out of its way to say that this doesn't bypass McGirt. But after their new understanding, that's exactly how it will be used. Vice Presiding Judge Hudson in his dissent perfectly captures the crisis the Court now puts us in, "The majority opinion reinvents Indian country jurisdiction and offers very little that is new or useful " and "...injects confusion into an already difficult area of the law."
With this ruling, the landscape will be difficult for myself and other law practitioners in Indian Country to know the standards. Difficult for our clients most of all. All I can say is grab some popcorn law fans and enjoy the next show as the Court tees up more wonders, "And for our next trick..."
---- Matt Price