Law & Principles

State asks high court to overturn McGirt decision

August 9, 2021

Ray Carter

The State of Oklahoma has asked the U.S. Supreme Court to narrow or overturn its recent decision in McGirt v. Oklahoma, which effectively declared most of eastern Oklahoma to be tribal reservation land.

In a brief filed with the court, state officials say the McGirt decision, combined with a lower-court decision that effectively expanded McGirt’s impact so state officials can no longer prosecute non-Indians who commit crimes on reservation land, has created a “toxic cocktail” that leaves much of the Oklahoma population unprotected from criminals.

“Victims of atrocious crimes are being revictimized by going through the legal process a second time, and, in some instances, seeing their loved one’s killer set free because federal prosecutors cannot file the claims against the released convicts,” said Attorney General John O’Connor. “Some theories sound good in concept but don’t work in the real world. The U.S. Supreme Court got this decision wrong and we are respectfully asking the Court to overturn its decision or to limit it to certain federal crimes. The most effective way to right this terrible wrong is for the court to overturn the McGirt decision. Without action, the negative consequences will damage Oklahomans for years to come.”

The case is centered on the conviction of Shaun Bosse, a non-Native American, who brutally murdered a Chickasaw mother and her two young children. In 2010, Bosse killed his girlfriend, Katrina Griffin, and her two children, eight-year-old Christian and six-year-old Chasity. Bosse stabbed Katrina and Christian to death and then locked Chasity in a closet before setting the family’s mobile home on fire, burning Chasity alive.

Bosse was sentenced to death, but now argues the state did not have authority to try him because he murdered Chickasaws on reservation land. Under McGirt, tribal authorities also lack the authority to try Bosse. Only federal officials can prosecute him.

In May, the U.S. Supreme Court agreed to keep Bosse on Oklahoma’s death row while they considered reviewing the questions about Oklahoma’s criminal jurisdiction.

Bosse is only one of many such cases in Oklahoma. In many instances, state officials note, McGirt is effectively freeing convicted criminals and preventing the prosecution of thousands of new crimes.

“The decision in McGirt now drives thousands of crime victims to seek justice from federal and tribal prosecutors whose offices are not equipped to handle those demands,” the state’s brief declares. “Numerous crimes are going uninvestigated and unprosecuted, endangering public safety. Federal district courts in Oklahoma are completely overwhelmed. Thousands of state prisoners are challenging decades’ worth of convictions—many of which involve crimes that cannot be reprosecuted. The effects have spilled into the civil realm as well, jeopardizing hundreds of millions of dollars in state tax revenue and calling into question the State’s regulatory authority within its own borders.”

The brief says those problems are the natural outcome of the McGirt decision “and the reconsideration of that decision is the only realistic avenue for ending the ongoing chaos affecting every corner of daily life in Oklahoma.”

The state notes nearly 90 percent of the almost 2 million Oklahomans living on McGirt reservations “are not Indians.”

“The question presented here concerns the allocation of prosecutorial authority over those individuals,” the brief states. “There could hardly be a more compelling basis for the Court’s review.”

The brief notes that more than 3,000 applications for postconviction relief have been filed by prisoners seeking to overturn their state convictions based on McGirt and the Oklahoma Department of Corrections has already released more than 150 prisoners, about half of whom will not face retrial.

The state estimates that defendants in approximately 6,000 pending criminal cases are seeking dismissal under McGirt while the Federal Bureau of Investigation estimates it will handle 7,500 additional cases in 2022 because of the McGirt decision.

The state brief warns that trend “is likely to continue” because Oklahoma district attorneys have determined that, since 2005, at least 76,000 of the non-traffic criminal cases filed in Oklahoma state court involved an Indian perpetrator or victim.

The state’s brief says approximately a quarter of postconviction challenges seeking relief under McGirt involve underlying crimes “that are already beyond the federal statute of limitations” with that figure expected to increase. In some instances, those who will be freed were convicted of “chilling” crimes, including rape, kidnapping, and robbery with a firearm.

The McGirt decision also threatens to create a financial windfall for many convicted criminals while financially destabilizing Oklahoma courts and public-safety entities, the brief notes.

In some instances, McGirt could even require crime victims to repay money to their abusers.

“Former prisoners have filed class actions seeking return of the criminal fines, court fees, and restitution paid to victims as a result of conviction, threatening the financial health of the state-court system,” Oklahoma’s brief notes.

The document also states, “Individuals convicted of driving while impaired are seeking to recover their driving privileges, and individuals stripped of their professional licenses are seeking to restore their privilege to practice.”

Limited federal response; unknown tribal government response

The state brief notes federal law enforcement officials are choosing not to prosecutive the vast majority of crimes occurring on McGirt reservation land in eastern Oklahoma.

“The United States Attorneys’ Offices in Oklahoma are resorting to unprecedented triage: for example, the Eastern District of Oklahoma has prioritized prosecuting crimes involving serious bodily injury, leaving almost all other crimes unindicted,” Oklahoma’s brief says. “The State understands that, of the thousands of felonies referred to that office in the last year, only approximately 10% have thus far resulted in federal indictment. Making matters worse, tribes lack the authority to prosecute almost all non-Indian offenders. The combined result is that essentially every non-Indian who victimizes an Indian in the Eastern District—unless the crime involves death or serious bodily injury—remains free and uncharged.”

At the same time, there is little public indication tribal governments are filling the gap.

“As to non-major crimes committed by Indians in newly recognized Indian country, it is unknown how many of the thousands of cases dismissed from state court in light of McGirt are being reprosecuted by tribal authorities,” Oklahoma’s brief states. “The Creek Nation has declined the State’s repeated requests to share a list of criminal cases it is prosecuting. And newly committed crimes are being referred directly to tribal prosecutors; the State is unaware of how many such crimes exist. The full effect of McGirt on criminal justice in Oklahoma could therefore be significantly worse than even the current data show.”

Overturning McGirt the only option

The state brief argues the narrow-majority opinion in McGirt “did not itself adhere to the Court’s prior precedents on congressional disestablishment of Indian reservations” and that subsequent developments have “proven the decision fundamentally unworkable.”

“Any reliance interests that have developed in the short time since McGirt pale in comparison to the century of reliance interests that McGirt upset,” the state brief declares.

While the court majority in McGirt suggested state-tribal agreements or congressional action would quickly resolve any problems created by the decision, the state’s brief notes neither option has proven viable.

“The tribes do not agree among themselves, much less with the State, on the proper path forward and Congress is unlikely to adopt any proposal not supported by all of the parties involved,” Oklahoma’s petition states. “Only the Court can remedy the problems it has created, and this case provides it with an opportunity to do so before the damage becomes irreversible.”

Tribal response to state filing

Cherokee Nation Principal Chief Chuck Hoskin, Jr., responded to the state’s brief in the Bosse case by saying it “made clear this was never about protecting victims or stopping crime, but simply advancing an anti-Indian political agenda. The governor has never attempted to cooperate with the tribes to protect all Oklahomans. It is perfectly clear that it has always been his intent to destroy Oklahoma’s reservations and the sovereignty of Oklahoma tribes, no matter what the cost might be.”

Hoskin’s statement did not dispute the crime statistics included in Oklahoma’s brief.

The Attorney General’s office has retained Kannon Shanmugam and the law firm of Paul, Weiss, Rifkind, Wharton & Garrison to assist in providing legal representation to overturn the Supreme Court’s decision in McGirt. Shanmugam is a nationally renowned appellate litigator, having argued 32 cases before the U.S. Supreme Court. The attorney general is also working with Ryan Leonard, an Oklahoma City attorney retained by Gov. Kevin Stitt.

“To stop the damage and save the people of Oklahoma from years of hardship to come, the Court should consider overruling McGirt in this case,” Oklahoma’s brief declares. “The stakes are simply too high to leave that option off the table.”