Oklahoma Attorney General Attempts to Limit Supreme Court Tribal Sovereignty Ruling as State Appeals Court Voids Four Capital Convictions

The Oklahoma Attorney General’s Office has asked the United States Supreme Court to stay an Oklahoma appeals court rul­ing that void­ed the con­vic­tion of an Oklahoma death-row pris­on­er for a triple mur­der com­mit­ted on trib­al lands against mem­bers of the Chickasaw Nation while state pros­e­cu­tors seek review of that rul­ing by the U.S. high court. 

The state pros­e­cu­tors’ fil­ing in Oklahoma v. Bosse, which the tribe oppos­es, comes in the midst of four deci­sions by the Oklahoma Court of Criminal Appeals apply­ing the U.S. Supreme Court’s land­mark July 2020 trib­al sov­er­eign­ty deci­sion in McGirt v. Oklahoma to void state-court con­vic­tions for mur­ders com­mit­ted by or against Native Americans on trib­al lands in Oklahoma. In a his­toric rul­ing, the court deter­mined that Congress had nev­er dis­es­tab­lished the Muscogee (Creek) Reservation and the lands with­in the his­tor­i­cal bound­aries of the reser­va­tion con­sti­tut­ed ​“Indian Country” under federal law. 

The same day McGirt was decid­ed, the Court void­ed the con­vic­tion of death-row pris­on­er Patrick Murphy, a cit­i­zen of the Muscogee Nation, for the mur­ders of two trib­al mem­bers with­in the bor­ders of the Creek Reservation. The Court ruled that the fed­er­al gov­ern­ment, not Oklahoma, had exclu­sive juris­dic­tion over those crimes. On March 11, 2021, apply­ing McGirt, the Oklahoma appeals court ruled that the mur­ders com­mit­ted by Shaun Bosse, who is White, were com­mit­ted with­in the his­tor­i­cal bound­aries of the Chickasaw Nation Reservation and that the Oklahoma courts had no juris­dic­tion to adju­di­cate the crimes.

Since April 29, the Oklahoma Court of Criminal Appeals has void­ed the con­vic­tions of three more Oklahoma death-row pris­on­ers for mur­ders com­mit­ted on trib­al lands. Miles Bench, an enrolled mem­ber of the Choctaw Nation, had been sen­tenced to death for a mur­der com­mit­ted with­in the bound­aries of the Choctaw Reservation. Two oth­er death-row pris­on­ers, Benjamin Robert Cole Sr. and James Chandler Ryder, are non-Native Americans who were con­vict­ed of crimes against cit­i­zens of the Cherokee Nation with­in the his­tor­i­cal bound­aries of the Cherokee Reservation.

In April, the Oklahoma Attorney General’s Office asked the state court to recon­sid­er its rul­ing in Bosse’s case, argu­ing that state pros­e­cu­tors retained con­cur­rent juris­dic­tion over mur­ders of Indians by non-Indians on trib­al lands. Bosse and the Chickasaw Nation opposed the motion. After the Oklahoma court ruled in Bosse’s favor, state pros­e­cu­tors asked the U.S. Supreme Court to intervene. 

On May 7, Bosse and the Chickasaw Nation filed sep­a­rate briefs in the U.S. Supreme Court oppos­ing the motion, say­ing that the state pros­e­cu­tors’ argu­ments run counter to two cen­turies of Congressional statutes and U.S. Supreme Court rulings. 

The Impact of McGirt v. Oklahoma

The U.S. Supreme Court’s deci­sion in McGirt was ground­break­ing with respect to deter­min­ing whether lands were still ​“Indian Country” for pur­pos­es of fed­er­al law but did noth­ing to change what law applies once the sta­tus of the land has been estab­lished. Federal law has long declared that major crimes com­mit­ted by or against Indians on trib­al lands can be tried only in fed­er­al or trib­al courts. McGirt held that large por­tions of 11 coun­ties in east­ern Oklahoma, includ­ing much of the city of Tulsa, were with­in the bound­aries of the Creek Reservation estab­lished by a series of treaties between 1832 and 1866 in the after­math of the fed­er­al government’s forcible relo­ca­tion of five Native American tribes. The same argu­ments that led the Court to con­clude that Congress had nev­er dis­es­tab­lished the Creek reser­va­tion also apply to the treaties between the United States and the Cherokee, Chickasaw, Choctaw, and Seminole Nations.

The Oklahoma Court of Criminal Appeals has applied McGirt to rec­og­nize reser­va­tion bound­aries and void cap­i­tal con­vic­tions for offens­es com­mit­ted with­in the lands of four of the five tribes. The rul­ings do not free defen­dants of lia­bil­i­ty for crim­i­nal offens­es, and fed­er­al pros­e­cu­tors have under­tak­en steps to ensure they will face tri­al in federal court.

Oklahoma Attorney General Mike Hunter has peti­tioned the U.S. Supreme Court to stay the vaca­tion of Bosse’s con­vic­tion to deter­mine whether McGirt has been prop­er­ly applied to crimes com­mit­ted in ​“Indian Country” against Native American vic­tims by alleged offend­ers who are not Native American. Hunter’s stay appli­ca­tion argues that the Court should grant review, assert­ing that whether states have con­cur­rent juris­dic­tion ​“over non-Indians who vic­tim­ize Indians” has ​“immense” prac­ti­cal impor­tance. Hunter con­tends that per­mit­ting con­cur­rent state juris­dic­tion over those offens­es ​“fur­thers both fed­er­al and trib­al inter­ests by pro­vid­ing addi­tion­al assur­ance that trib­al mem­bers who are vic­tims of crime will receive jus­tice, either from the fed­er­al gov­ern­ment, state gov­ern­ment, or both.” 

The attor­ney general’s fil­ing asserts that the McGirt deci­sion has dra­mat­i­cal­ly increased the case­load for fed­er­al pros­e­cu­tors in Oklahoma, as cas­es that were tried in state court are over­turned and trans­ferred to fed­er­al juris­dic­tion: ​“The Northern District of Oklahoma has already seen a 300 – 400% increase in crim­i­nal cas­es. In the Eastern District of Oklahoma, the U.S. Attorney had indict­ed only 3 Indian coun­try crimes in 2017, but in just the first few months fol­low­ing McGirt, that office has already been referred 571 such cas­es with respect to the Creek reser­va­tion alone, not includ­ing the oth­er recently-recognized reservations.”

Attorneys for Bosse and the Chickasaw Nation counter that the law on this issue was set­tled long before McGirt. ​“From 1896 and through McGirt itself,” Bosse’s brief explains, ​“this Court has rec­og­nized that in Indian coun­try, fed­er­al courts have exclu­sive juris­dic­tion over ​‘crimes … by … Indians or against Indians.’” The Chickasaw Nation’s ami­cus brief oppos­ing the state pros­e­cu­tors’ motion notes that Congress has man­dat­ed this approach even longer. ​“Since 1790,” the Nation’s brief states, ​“Congress has exer­cised its Constitutional author­i­ty in Indian affairs by enact­ing statutes under which fed­er­al juris­dic­tion is exclu­sive over crimes by non-Indians against Indians on Indian lands.”

Tribal Sovereignty

The Chickasaw Nation argues that state pros­e­cu­tors’ con­cerns about the impact on fed­er­al case­loads are pol­i­cy issues that fall square­ly with­in the purview of Congress, rather than the Supreme Court. The Chickasaw Nation and oth­er tribes have been work­ing with fed­er­al pros­e­cu­tors and state author­i­ties to draft fed­er­al leg­is­la­tion to allow for spe­cial com­pacts between the tribes and state gov­ern­ments with regard to crim­i­nal pros­e­cu­tions for crimes com­mit­ted on tribal lands.

“We’re not going to give up our juris­dic­tion,” said Chickasaw Nation Governor Bill Anoatubby. ​“We believe that we need to be the ones to decide what’s in the com­pact [with the state of Oklahoma] because this is the juris­dic­tion of the Chickasaw Nation.”

Stephen Greetham, senior legal coun­sel for the Chickasaw Nation, told NPR affil­i­ate KOSU, ​“We cel­e­brate the vin­di­ca­tion of our treaties. We appre­ci­ate intel­lec­tu­al hon­esty and the solid­i­ty of the law that the court applied,” but he crit­i­cized the state of Oklahoma’s char­ac­ter­i­za­tion of the rul­ing as cre­at­ing a cri­sis for law enforce­ment and a dan­ger to pub­lic safe­ty. ​“We take great excep­tion to folks who seem to be treat­ing this like the sky is falling,” he said.