Monumental Court Rulings In Oklahoma Affirm Tribal Sovereignty
Last week, the Oklahoma Court of Criminal Appeals delivered two monumental rulings affirming the tribal sovereignty of the Chickasaw Nation and the Cherokee Nation. The cases are now part of five Oklahoma tribes' effort to regain their reservations following a historic win in the U.S. Supreme Court.
In each case, the defendants challenged the state's ability to prosecute them based on the location of the crime and the fact that both involved citizens of tribal nations in Oklahoma. In siding with the defendants, the court found that the reservations for both the Chickasaw Nation and the Cherokee Nation were never disestablished.
Shaun Michael Bosse, 39, was sentenced to death by the state of Oklahoma in 2012 for the murder of Katrina Griffin and her two children, all citizens of the Chickasaw Nation. He has been on Oklahoma’s death row ever since. Bosse first filed for post-conviction relief in 2018, but was denied. But the following year Bosse tried again, this time citing the U.S. Supreme Court’s decision in the McGirt v. Oklahoma case, which found that the Muskogee (Creek) Nation’s reservation was never disestablished and the tribe retained criminal jurisdiction. A McClain County judge granted him post-conviction relief.
Following similar rulings with the other four tribes involved in the McGirt v. Oklahoma decision, the Oklahoma Court of Criminal Appeals found that the Chickasaw Nation's reservation was never disestablished, granting them authority in Bosse's prosecution.
Stephen Greetham, Chickasaw Nation's senior legal counsel, said it was a good day in the Chickasaw Nation. But, he reminded the public that Bosse's case will now be headed to the Western District of Oklahoma, and that doesn't mean Bosse has a chance at freedom.
"This case is not about Bosse walking free,” Greetham said. “It's a matter of whether he's in a state prison or a federal prison."
Separately, Oklahoma Court of Criminal Appeals Judge Gary L. Lumpkin affirmed that the Cherokee Nation's reservation boundaries were never disestablished in a ruling that stems from the case of Travis Hogner. The 47-year-old was convicted in 2017 for possession of a firearm after a felony conviction and was sentenced to 50 years in prison. He was three years into his sentence.
Hogner also filed for post-conviction relief on the grounds that the state did not have the authority to try his case. Hogner is a citizen of the Miami Nation, and his crime occurred within the Cherokee Nation's reservation boundaries.
Unlike Bosse, however, Hogner will be released because of the statute of limitations. Attorney General for the Cherokee Nation Sara Hill acknowledges that this complicates justice for families of Hogner's victims, but said it was, "a consequence for the state of Oklahoma illegally prosecuting cases for the last 100 years." As the U.S. Supreme Court found in its decision in McGirt v. Oklahoma, the U.S. government should have never allowed the state of Oklahoma to assume jurisdictional authority over reservations promised to the five tribes involved.
Bosse and Hogner are just two of many cases that have followed the Supreme Court's ruling. Cases that began with the question of whether or not the Muscogee (Creek) Nation had an existing reservation and the authority to prosecute felony cases on its lands has since spread to the other four tribes, constituting almost half of the state.
As a result, if the offender or the victim of a crime occurring on these tribal lands is Native American, then the tribe and the United States have jurisdiction over their prosecution. The majority of the most serious crimes are handled by federal prosecutors in these cases, but tribes do have jurisdiction under the Violence Against Women Act for purposes of domestic violence cases when the offender is a non-Indian.
"The rules can seem complex, but there are bright line rules once you know what the facts are as far as where prosecution lies," said Greetham.
In an executive proclamation issued Thursday, Governor Bill Anoatubby of the Chickasaw Nation said the ruling affirms the tribe’s reservation, adding that his administration is committed to working with prosecutors to ensure justice for Bosse's victims in federal court. The rulings affirm what we have always known,” he said in a press release. "The Chickasaw people continue, and so too does our treaty homeland.”
Anoatubby said he has been in communication with the United States Attorney, who has assured him that federal charges against Bosse will be timely filed.
Fulfilling the new jurisdictional boundaries outlined in the McGirt decision and the court cases that follow will require a bounty of new resources for both tribal and federal prosecutors. So far, the Cherokee Nation has committed $10 million to enhance their criminal justice system.
Principal Chief Chuck Hoskin Jr. says the Nation will be reaching out to victims' families to ensure any criminal prosecutions touched by the new court decisions will end in justice. "What I want people to know is that the Cherokee Nation believes that everybody living in our reservation deserves a blanket of protection."
District Attorneys and other law enforcement agencies have complained that the McGirt ruling has led to confusion and fear that cases will slip through the cracks. Many want Congress to step in.
Oklahoma Attorney General Mike Hunter, Senate Pro Tem Greg Treat and the House Speaker Charles McCall released a statement following the ruling saying that, " Although today’s outcome was not an unexpected result of the McGirt decision, it shows more than ever the need for Congress to pass legislation allowing the state to partner with the Cherokee and Chickasaw Nations on criminal jurisdiction."
Both the Chickasaw Nation and the Cherokee Nation have expressed willingness to compact with the state on criminal jurisdiction matters.
Muscogee (Creek) Nation said in a statement that they celebrated the decisions and the affirmation of the tribal nations boundaries, but were disappointed about the calls for federal legislation. With more resources, they think they will be able to handle the amount of cases and point to the fact that they've already been working with federal and local officials.
"We are also dismayed that, as with the McGirt decision, some state leaders’ reactions are to immediately try to undermine this victory and return to the broken systems of the past through talk of legislation that waters down sovereign authority."
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