Law & Principles

McGirt chaos continues to grow

August 3, 2020

Ray Carter

With jurisdictional chaos continuing to grow from a U.S. Supreme Court ruling that reestablished a tribal reservation in Oklahoma, Attorney General Mike Hunter announced Monday he will seek a ruling from the Oklahoma Court of Criminal Appeals to ensure the state can still prosecute non-Indians who commit major crimes against American Indian citizens.

“The McGirt case does not constitute a get-out-of-prison-free card,” Hunter said. “We are not going to allow our justice system to be exploited by individuals who have murdered, raped, or committed another crime of a serious nature while the federal government considers whether to re-arrest and adjudicate their cases.”

In its recent ruling in McGirt v. Oklahoma, the U.S. Supreme Court found certain crimes involving American Indians on tribal land in Oklahoma must be prosecuted in federal, not state, court. While the decision directly affected land held by the Muscogee (Creek) Nation, it is expected to equally apply to the Cherokee, Chickasaw, Choctaw, and Seminole nations. The cumulative effect of the ruling could impact nearly half the state of Oklahoma, where 1.8 million people reside, including the city of Tulsa.

Because the McGirt decision declared the Muscogee (Creek) Nation’s reservation boundaries were never formally disestablished and that territory remains “Indian country,” the decision is expected to also expand tribal government authority in a wide range of areas, including regulation and taxation.

Hunter said nearly 200 individuals are now seeking release from state prisons due to the ruling, and that as many as 2,000 cases may be affected.

Among those seeking release is death-row inmate Shaun Bosse, a non-Indian who murdered a Chickasaw family—a mother and her two children—in 2010. Bosse is challenging his conviction on the basis that his crimes took place on the undiminished boundaries of the original Chickasaw Reservation and the state lacked the authority to prosecute him for major crimes committed against Chickasaws.

Bosse stabbed the mother and her eight-year-old son multiple times, and the body of the woman’s six-year old daughter was found in a closet with a chair wedged to trap the girl in the burning home.

“This was a horrific crime,” Hunter said. “It is also an example of how important it is for the state to seek justice on behalf of Indian victims who were abused, victimized, and killed by non-Indians.”

Hunter said his office would oppose McGirt appeals filed by Bosse and others based on procedural grounds, arguing convicted criminals waited too long to bring their claims. Hunter said his office will also argue the state has jurisdiction, concurrently with the federal government, over non-Indians like Bosse who victimize tribal citizens.

The attorney general is also asking the court to clarify how Indian status is to be proven in such cases, and to put the burden of proving Indian status on the defendant.

“This is not an academic exercise,” Hunter said. “We’re dealing with criminals who, if released, could re-offend and certainly re-victimize the survivors.”

Following the court’s McGirt ruling, Hunter announced an “agreement in principle” had been reached with the five tribes, but leaders of two tribes quickly withdrew their support. It was not clear whether Hunter had the legal authority to negotiate such agreements since the Oklahoma Constitution and state law give the governor the authority to enter into state-tribal agreements.

Hunter said talks with the five major tribes are now in a “cooling off” period.

Under the agreement announced by Hunter, the attorney general and officials from those five tribal governments supported federal legislation to “affirm” state criminal jurisdiction “over all offenders” on tribal lands in Oklahoma “with the exception of crimes involving Indians committed on Indian trust or restricted lands.”

The agreement also said that in the area of civil jurisdiction, “including the ability to legislate, regulate, tax, and adjudicate on non-criminal matters,” proposed federal legislation should affirm a tribe’s civil jurisdiction “throughout their respective treaty territories.”

The proposed federal law would also grant tribes civil jurisdiction over non-tribal members when the “conduct” of non-members “threatens Tribal self-governance or the economic security, health, or welfare of the Tribe.”

Gov. Kevin Stitt has since announced the formation of the Oklahoma Commission on Cooperative Sovereignty, which will study and recommend changes to state or federal law required due to the U.S. Supreme Court decision. “The problems the McGirt case creates are not theoretical,” Hunter said. “Shaun Bosse should never be released from prison and he deserves to stay in McAlester on death row until he is executed.”

(Image: KWTV-DT, News 9 video screenshot)