Chickasaw Nation Opposes Oklahoma Attorney General’s Attempt to Undo Tribal Sovereignty Decision in Death Penalty Case

Oklahoma Attorney General Mike Hunter has asked the Oklahoma Court of Criminal Appeals to reconsider its decision recognizing the tribal sovereignty of the Chickasaw Nation over crimes committed by or against Native Americans on Chickasaw Nation lands.

On March 11, 2021, applying the U.S. Supreme Court’s landmark 2020 tribal sovereignty ruling in McGirt v. Oklahoma, the Oklahoma appeals court ruled that the Chickasaw Nation Reservation created in a series of treaties between the United States and the tribe in the 1880s had never been disestablished and that the lands within the historical boundaries of the reservation constituted “Indian Country” within which crimes by or against Native Americans were subject to the exclusive jurisdiction of the federal courts. The court voided the conviction and death sentence imposed in state court on Shaun Bosse for the murders of three citizens of the Chickasaw Nation, finding that the offense had been committed within the historical boundaries of the Chickasaw Nation Reservation. The court unanimously held that Oklahoma’s state courts lacked jurisdiction over the case.

The Attorney General’s petition for rehearing, filed March 31, 2021, asserts that Oklahoma’s state courts may exercise concurrent jurisdiction over offenses committed against Native Americans on tribal lands when the accused is not Native American. The state court, with the support of briefing from the Chickasaw Nation, considered and rejected that argument in its initial ruling. State prosecutors argue that, in doing so, the court misinterpreted caselaw that grants permission for cases to be heard in federal court as instead commanding that those cases can be tried only in federal court.

Chickasaw Nation Governor Bill Anoatubby issued an executive proclamation on March 11 praising the state court’s decisions. The “rulings affirm what we have always known: The Chickasaw people continue, and so too does our treaty homeland.”

The Nation has asked the Oklahoma appeals court for permission to file a brief in response to the attorney general’s arguments. Its previous brief argued that “[s]ettled law rejects” Oklahoma’s claim to having “concurrent state criminal jurisdiction over all non-Indians in Indian country.” Unless and until Congress amends the relevant laws, the Nation wrote, “[f]ederal criminal jurisdiction … is exclusive of state jurisdiction” (emphasis in the Chickasaw Nation brief).

“We do not lightly offer these observations,” the tribe’s lawyers wrote. “The Nation has no interest in delaying justice for a Chickasaw family. However, as McGirt makes plain, Oklahoma has long asserted criminal jurisdiction in violation of federal law, which is itself an injustice that goes to the heart of the criminal justice system.”

“Our hearts remain steadfast with the family this man victimized,” Governor Anoatubby said at the time of the decision. “We are in communication with the United States Attorney and appreciate his assurance that federal charges will be timely filed. We will continue our efforts to see justice done for the victim’s family.”

On March 26, Christopher J. Wilson, Acting U.S. Attorney for the Eastern District of Oklahoma, announced that his office had filed 22 federal cases involving murder in Indian Country cases since the Bosse decision, and will seek to try Bosse in federal court. A news release from the federal prosecutor’s office said that the U.S. Supreme Court decision in McGirt and several Oklahoma Court of Criminal Appeals rulings “held that Congress never disestablished the reservations of the Muscogee (Creek) Nation, Chickasaw Nation and the Cherokee Nation, and the State of Oklahoma lacked jurisdiction to prosecute major crimes involving Native Americans occurring on these reservation lands.”

The Chickasaw Nation expressed support for federal legislation to allow the tribes to work in partnership with state and federal prosecutors to develop a system for trying offenses committed on tribal lands. “Rather than accept the State’s invitation to bend the law,” the Chickasaw Nation brief wrote, “the Nation supports the Oklahoma Attorney General’s call for cooperation to seek congressional authorization for tribes and states to allocate criminal jurisdiction by compact.”