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.