Shaynna Sims was haunted by the fact that her husband had been having an affair. So when his lover died in 2015, Ms. Sims went to a viewing at the Tulsa, Okla., funeral home. There she mutilated the woman’s body, which prosecutors later said had both breasts “crudely cut off.” She also took graphic pictures, including one with her wedding ring “prominently displayed.” Ms. Sims received 16 years in prison in 2017, but last month she was freed.

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Add this to the toll from the Supreme Court’s 2020 decision in McGirt v. Oklahoma. In that case Justice Neil Gorsuch, joined by the Court’s liberals, held that Congress never formally dissolved the Creek Nation’s historical reservation. The same logic has been extended to five other tribes. As a result, the state’s authority to prosecute crimes involving Native American perpetrators and victims has vanished in nearly half of Oklahoma.
The woman whose body was carved up? She was 1/64 Creek, an amount consistent with having one Native American great-great-great-great grandparent. Citing McGirtan appeals court said Ms. Sims’s conviction was unlawful. The state argued it could punish the desecration as a “victimless” crime, but judges disagreed. The feds can’t reprosecute Ms. Sims because the U.S. Attorney’s office says the statute of limitations has run out. The Creeks can’t do anything either, because Ms. Sims isn’t Native American. On Nov. 8 she was released into the free world.
What a bizarre loophole Justice Gorsuch has opened in Oklahoma. Here’s another one: Richard Ray Roth was driving a Chevy Tahoe through Wagoner in 2013 when he hit a 12-year-old Cherokee boy with a bicycle. Mr. Roth didn’t immediately call 911. While the boy, Billy Lord, lay dying, Mr. Roth drove home to get his wife, then returned to the scene. He claimed he’d had only two beers, yet his blood-alcohol level was nearly four times the legal limit.
A guilty verdict on charges up to manslaughter gave him 20 years. It was overturned in September. “This case cannot be retried in federal court,” a dissenting state judge wrote, “and Roth will likely go free without further punishment and without so much as a traffic ticket on his record for the events in this case.” Mr. Roth’s release has been stayed pending a state appeal to the Supreme Court.
Billy Lord’s mother, at a hearing last year, was incredulous that the conviction might be thrown out. “My son was tribal,” she said, “but he was also a citizen of the United States. He was a citizen of Oklahoma.” Letting Mr. Roth go would be “abusing my son’s memory” and hard on her other children. “I wonder which one of you guys are going to come to my house,” she said, “and sit my kids down and tell them, ‘look, this is why,’ and hold my babies’ hands and bring them some kind of peace and comfort. Because I can’t.”
Oklahoma is asking the Supreme Court to reconsider McGirt. Meanwhile, the state has filed some 40 petitions for certiorari, as it tries to preserve convictions. Some of these cases are already being reprosecuted in federal court, along with similar new crimes. The U.S. Attorney’s office for the Northern District of Oklahoma says it previously did 200 indictments a year. It was 544 in fiscal 2021. In the Eastern District, cases filed for violent crimes in Indian country have risen to 299 from two in 2019.
Also helpful was an August opinion by Oklahoma’s top criminal court, saying McGirt “shall not apply retroactively to void a final state conviction.” The ruling has kept older cases from being vacated, at least for now. Yet this is being appealed to the Supreme Court, too. “McGirt’s rule is a substantive rule with constitutional force,” and “federal law requires its retroactive application,” argues a petition by Clifton Parish, convicted of murder in 2012.
Even if McGirt doesn’t apply retroactively to a “final state conviction,” there’s another escape route. Because Ms. Sims’s initial appeal was on the docket when McGirt came down, her conviction wasn’t “final.” Ditto for Mr. Roth. So here’s the formula for non-Native Americans to get off scot free: The crime must be old enough that the feds can’t reprosecute, which generally means five years, with exceptions. And a state appeal, however futile it was before McGirt, must have been already languishing in court.
Nearly two million people live in the parts of Oklahoma where justice now depends on both the perpetrator’s race and the victim’s race. If Ms. Sims had dissected an Irish-American body, she’d still be in prison. If Billy Lord had been a Hispanic boy, instead of a Cherokee, Mr. Roth’s conviction would stand.
The Supreme Court should look these cases in the face. Is this justice, Justice Gorsuch?

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