Oklahoma Attorney General Mike Hunter filed a brief with the Oklahoma Criminal Court of Appeals on Monday to address concerns resulting from the McGirt v. Oklahoma decision.
Hunter filed the brief in connection with three-time convicted killer Shaun Bosse, who was sentenced to death for murdering a woman and her two children in 2012.
He filed an appeal on July 16th, in the wake of the McGirt v. Oklahoma decision, saying that because his crime occurred on Chickasaw tribal lands and his victims were Chickasaw, the federal government should have prosecuted him, not the state.
Hunter claims the state has the right and responsibility for cases like Bosse's.
"There can be no good that comes from tying the state's hands when we are seeking to protect Native Americans by exercising criminal jurisdiction over non-Indians," Hunter said.
Hunter said his office has recieved "a flood of requests" from inmates challenging their state conviction and "attempting to take advantage" of the McGirt v. Oklahoma decision.
Hunter claimed there are between 1,500 and 2,000 cases like Bosse's who could be up for post-conviction relief. These numbers come from Oklahoma Department of Corrections data of people who self-identify as Native Americans, are currently incarcerated and from people whose crimes were committed within tribal jurisdiction. During Monday's press conference Hunter said there were 200 inmates who are actively seeking release post-McGirt.
Last month, Trent Shores, the U.S. Attorney for the Northern District of Oklahoma agreed to prosecute Dustin Dennis, whose two children died after being stuck in a hot car. The Tulsa County District Attorney dismissed the charges against Dennis citing lack of jurisdiction. Dennis' two children were Native American and the crime occurred in Tulsa. To Native legal scholars, Shores action proves the federal government isn't going to let those who commit felonies go unpunished.
Hunter says his office is focused on existing convictions, not new cases like Dennis.
"Throwing out existing convictions poses a bigger issue," said Hunter.
"Because it’s possible that, if released, federal prosecution might not happen because of statutes of limitations, lost evidence, witnesses that have passed away or whose memories have faded, resource constraints, or inability to secure the same level of punishment."
However, those on death row like Bosse face a lengthy process during the post-conviction relief process. Felons will not immediately walk out of prison. Bosse must find an attorney willing to take on the case. And, federal penalties can be harsher.
Muscogee (Creek) Principal Chief David Hill said that when historic decisions like McGirt happen, it tends to upend the way things are done.
"The goal can’t be simply going back to the old way of doing things," said Hill.
"It must be using the jurisdictional clarity provided by the court to build a better system that increases public safety and prosperity for all in the region, while ensuring all functions of government are being met during the transition," he said.
Principal Chief Hill pointed out that there are many reservations that cooperate with local towns and businesses and rejected the possibility that federal legislation is needed to clear up jurisdictional issues.
"However, we do recognize that each situation has its own unique circumstances which is why we believe a rush to seek one-size-fits-all legislation, especially legislation that hasn’t gone through regular order, is the absolute wrong approach.”
