Supreme Court Native Sovereignty Decision Continues to Reverberate Through Oklahoma’s Death Penalty

A recent U.S. Supreme Court decision that affirmed the sovereignty of the Muscogee (Creek) Nation over tribal lands that span much of the eastern half of Oklahoma continues to reverberate through the state’s criminal justice system as prisoners sentenced for murders committed by or against Native Americans on tribal lands challenge the state’s authority to have prosecuted their cases.

The Court’s July 9, 2020 decision in McGirt v. Oklahoma already has vacated the conviction and death sentence of Muscogee citizen Patrick Dwayne Murphy (pictured) for a murder committed on lands the Court held were part of the historic Creek Reservation. On October 5, the Court granted Garry Wilson’s petition to vacate the judgment of conviction against him for a murder he says was committed within the historic boundaries of the Cherokee Nation. And in a case that could establish state-court procedures for prisoners challenging their convictions under McGirt, the Oklahoma Court of Criminal Appeals ordered the McClain County District Court to conduct a hearing to determine whether a triple murder by death-row prisoner Shaun Bosse was committed against citizens of the Chickasaw Nation on lands that are part of the historic Chickasaw Reservation.

Since the 1800s, the Major Crimes Act has granted the federal government — not states — exclusive authority to prosecute major crimes committed by or against Native Americans on their tribal lands. If an accused or the victim is a tribal citizen and the defendant was tried and convicted in state court of an offense occurring on lands recognized by the federal government as “Indian country,” that conviction is void. The legal issue, Native American Rights Fund senior attorney Joel Williams told Discussions With DPIC, “was never about these people going free … [or] that their crimes shouldn’t be punished. The question was, ‘Who should have the authority to do that?’”

While McGirt addressed the question only of whether Congress had disestablished the historic Creek Reservation, the Court’s reasoning applies equally to whether Congress disestablished the reservations of the Cherokee, Chickasaw, Choctaw, and Seminole nations — the other members of the “Five Civilized Tribes” whom the federal government forcibly evicted from their ancestral lands during the Trail of Tears and relocated onto reservations in Indian Country that later became part of the state of Oklahoma. Legal experts anticipate that the courts, applying McGirt, will rule that Congress also did not disestablish those tribes’ reservations.

Wilson contends that he is a Cherokee citizen and that his offense occurred within the Cherokee Reservation. The Oklahoma Attorney General’s office has agreed that he is entitled to a hearing to determine the validity of his conviction but does not concede Wilson’s Native American ancestry or that the murder occurred on Indian lands.

Bosse is not Native American but his three victims were members of the Chickasaw Nation. Oklahoma Attorney General Mike Hunter has not conceded that the murders occurred on the Chickasaw Nation’s reservation and is arguing that McGirt should not apply to defendants who are not tribal citizens. At a September 30 hearing in McLain County District Court, the county District Attorney, Greg Mashburn, contested Bosse’s petition for relief and told the court that the victims’ family members wanted Oklahoma to retain jurisdiction in the case.

The Chickasaw Nation filed a friend-of-the-court brief providing a history of the treaties between the tribe and the federal government and detailing the boundaries of the historical reservation. Bosse’s lawyer, assistant federal defender Michael Lieberman, presented expert testimony to show that the offense occurred on tribal lands. “[T]he law’s the law,” Lieberman said, and “the state of Oklahoma never had jurisdiction in this case.”

Tribal authorities have met with federal prosecutors concerning prosecuting defendants in federal court if their convictions are voided.