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.”