Second Oklahoma Death Penalty Voided Under Native Sovereignty Decision, Shaun Bosse to Get Non-Capital Trial in Federal Court

The Oklahoma Court of Criminal Appeals has voided the convictions of a second death-row prisoner who was unlawfully tried and condemned in the Oklahoma state courts for an offense that occurred on Native American tribal 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 vacated Shaun Bosse’s convictions and death sentences for the murders of three citizens of the Chickasaw Nation within the historical boundaries of the Chickasaw Nation Reservation. The court unanimously held that Oklahoma lacked jurisdiction over the case because the crimes occurred on lands considered “Indian Country” under federal law, subject to the exclusive jurisdiction of the federal courts.

“The federal government, not the state of Oklahoma, has jurisdiction to prosecute [Bosse],” the court wrote.

The decision was the first time the state court had applied McGirt in the context of a death-penalty case. In McGirt, the Court determined that Congress had never disestablished the Creek Reservation that was created by a series of treaties between 1832 and 1866 in the aftermath of the federal government’s forcible relocation of the Creek and four other Indian nations from their homes in Alabama and Georgia. Writing for a 5-4 majority of the Court, Justice Neil Gorsuch said that the lands within the historical boundaries of the reservation were still “Indian Country,” as defined by federal law, within which Oklahoma lacked jurisdiction to attempt to try individuals for serious offenses committed by or against tribal members. Though McGirt specifically addressed the borders of the Muscogee (Creek) Nation, the Oklahoma court found that its reasoning applied equally in determining the modern-day borders of the reservations established by the treaties with the other tribes.

Bosse is the second Oklahoma death-row prisoner whose conviction has been voided by McGirt. The first was Patrick Dwayne Murphy, a Muscogee citizen who was convicted of a crime committed on Muscogee lands. Both Murphy and Bosse remain in custody and can be tried by the federal government. Murphy has already been indicted and federal authorities have announced their intention to try Bosse. However, a death sentence cannot be sought under the federal Major Crimes Act, which governs the trial of crimes in Indian County, because neither the Chickasaw Nation nor the Muscogee Nation has authorized the death penalty for crimes committed on their lands. Only one Native American tribe — the Sac & Fox Nation of Oklahoma — has granted the federal government permission to seek death sentences for crimes committed by or against its members on its land.

Oklahoma argued that it should have concurrent jurisdiction over Bosse’s case because, while the victims in his case were Native Americans, he is white. The court rejected that argument, writing that the U.S. Congress would have to authorize law-enforcement compacts between the state and the tribes before state courts could share jurisdiction over such cases.

In a statement responding to the decision, Chickasaw Nation Gov. Bill Anoatubby said, “Our hearts remain steadfast with the family this man victimized. 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.”

Informed sources have told DPIC that the McGirt decision could potentially affect between five and ten Oklahoma death-row prisoners, including Bosse and Murphy. The decision is expected to have a much larger impact on non-capital cases. According to Oklahoma Attorney General Mike Hunter, 571 cases were referred to the U.S. Attorney for the Eastern District of Oklahoma in the three months following the McGirt ruling. Of Oklahoma’s 77 counties, 27 are wholly or partially within Native American reservations.