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.