The Chickasaw Nation and United States attorneys in Oklahoma have been busy dealing with an influx of criminal cases in light of the "McGirt" and "Bosse" rulings, and are preparing for even more.
In "McGirt v. Oklahoma," the U.S. Supreme Court ruled that large swaths of eastern Oklahoma fall within American Indian reservations which were never disestablished by Congress following Oklahoma’s statehood.
In March, concerning the case, "Bosse v. Oklahoma," the Oklahoma Court of Criminal Appeals reversed the murder and arson convictions of 38-year-old Shaun Bosse of Blanchard because the crimes occurred on land within the Chickasaw Nation's historic reservation, and the victims were Chickasaw Nation citizens. Therefore, the case should be handled by the federal government, according to the OCCA's decision.
Bosse, a non-Indian, was convicted and sentenced to death in the 2010 killings of Katrina Griffin and her two young children.
In reversing the decisions of "Oklahoma v. Bosse," the OCCA essentially reaffirmed the U.S. Supreme Court's "McGirt," decision and established by legal mechanism that the Chickasaw Nation reservation remains intact.
What the "McGirt" and "Bosse" rulings -- along with a few others -- means for law and order in Oklahoma is, state prosecutors no longer have criminal jurisdiction over crimes involving Indians in nearly the entire eastern half of the state.
For the most part, in cases involving defendants and/or victims who have Indian blood, the federal government will prosecute major crimes, while the tribes will handle cases involving lesser crimes, or major crimes not prosecuted by the U.S. government.
State felony charges and/or convictions of many defendants have already been vacated in light of the rulings, and many more are sure to follow. The tribes and federal government are picking up a number of cases, but others will not be picked up due to statutes of limitation, or for other reasons.
AG taking "Bosse" case to highest court
Concerning the "Bosse" case, Oklahoma Attorney General Mike Hunter filed a motion requesting the OCCA rehear the state’s case against Bosse, saying, "a rehearing is warranted because the court overlooked arguments and authority offered by the state and reached a conclusion that conflicts with the state’s post-conviction statutes."
On April 7, the OCCA denied the attorney general's request, but Hunter filed a motion to recall the mandate, hoping that the U.S. Supreme Court would review the OCCA's decision in the "Bosse" case.
The OCCA then issued an order setting oral argument for April 15. On Thursday, the OCCA granted a 45-day stay of the state’s case against Bosse, while the attorney general’s office prepares to file a petition with the U.S. Supreme Court.
A press release issued by Hunter Thursday read, "Today’s ruling means Bosse will stay in state custody on Oklahoma death row, rather than be transferred to federal custody, which was previously mandated by the (Oklahoma) Court of Criminal Appeals.
The attorney general is arguing the state should have jurisdiction over Bosse, a non-Indian who murdered a Chickasaw family."
No change to reservation
However, it is still legally established that the Chickasaw Nation Reservation remains intact, and the tribe and federal government continue picking up cases -- in which the state was forced to vacate charges, convictions and sentences --
along with pending and future cases.
The Chickasaw Nation reports it has filed 132 criminal cases in the Chickasaw Nation District Court since the March 11 "Bosse" decision.
Beefing up the systems
The Chickasaw Nation is adding more officers to its Lighthorse Police Department; and more prosecutors, public defenders and judges to its tribal courts, according to Stephen Greetham, senior counsel at the Chickasaw Nation.
"Starting after the 'McGirt' decision came down, Gov. (Bill) Anoatubby, working with leadership and our judicial and legislative branches, convened a joint task force with all three branches of tribal government," Greetham said. "We tried to get our arms around what was coming, and looking at it through the lens of practical logistics. The product of that work was revisions to our code that we've made, and which are ongoing, as well as evaluations in both numbers of people and where they're deployed within our police, prosecutors and courts."
Greetham said as luck would have it, the tribe purchased the old federal courthouse in Ardmore some time ago, but has yet to renovate it.
"So, we happen to own a courthouse down there which will provide a very useful facility down in the southern part of the Chickasaw Nation," Greetham said. "So we've got our complex in Ada, and we're going to be developing out our complex down in Ardmore."
Greetham said it is his understanding that the tribal courts will be adding permanent district judges, as well as short-term magistrates to help with handing the influx of the cases.
Christopher Wilson, acting U.S. attorney for the Eastern District of Oklahoma, said in March that the Eastern District is also adding more personnel to handle the influx of cases.
He said the district is authorized to hire 16 one-year-term assistant U.S. attorneys.
"So we're in the process of filling those," Wilson said. "We've got authorization for some additional contract positions for legal assistants, and there are requests from other U.S. attorneys' offices to send people to our office on six-month to 12-month terms."
Wilson said the office will also be able to acquire two contract legal assistants, one contract automated litigation support person (for handling of electronic evidence) and one contract witness coordinator.
Wilson said these are temporary positions, but there will be a potential to extend contracts or make permanent those positions.
"But that's a wait and see process as we see what the ultimate impact of these decisions is," he said.
Picking up cases
The Eastern District has picked up a number of cases, as has the Chickasaw Nation, but the tribe must also wait to see which cases the federal government will pick up, and which ones it won't.
Greetham said the tribe must wait for the federal government to create a declination list (list of formally refused cases), before proceeding on each case.
He said tribal prosecutors are working at a fast and furious pace to go through all the cases affected by the "McGirt" decision to gain a sense of where they are.
"Simultaneously, we're also looking at, when we can't bring charges, evaluating why, and is that something that we need to remedy going forward," he said.
Greetham said if the tribe doesn't have a code provision concerning a certain crime, the Chickasaw Nation could borrow from state or federal law as a violation of tribal law.
"The tribe prosecutes for violations of tribal law, the state for violations of state law, and the federal government for violations of federal law," Greetham said. "One of the things we've done, is we've added to our code, referred to as Integrated Crimes Act, which, if we don't have a crime on the books already under tribal law, tribal prosecutors are empowered to use the elements of a state or federal law crime to blend tribal charges."
For both the federal government and tribal authorities, cases involving violent offenders are receiving the highest priority, followed by other cases.
"My understanding of their (federal government) triage priority is, it's violent offenders who are in custody," Greetham said. "Those cases, it's almost assured that there's going to be federal charges brought. We are also working with district attorneys, some more robustly than others, where we're getting lists of these cases as they're aware of them. The state has never tracked these cases in accord with the metrics that's required to figure out who has jurisdiction, so the state doesn't have an easy list of, 'Here's all the cases subject to the Major Crimes Act, General Crimes Act, so on and so forth.' So the state is also doing a review on all these cases."
Greetham said the tribe's triage priority is, if the federal government declines to prosecute a person in custody, that's a priority matter to be addressed by the Chickasaw Nation.
"Within that, obviously, violent offenders get priority (over) nonviolent offenders, and we move through that," he said. "All of this is part of the transition, comes from implementing this decision, so that the initial wave of cases is going to be significant, but then once we process through this, we'll adjust to the kind of new normal as far as how the allocation of cases goes."
"Murphy" case and compacting with the state
In the case of Patrick Dwayne Murphy, a murderer convicted on state charges, he later asserted he was tried in the wrong court.
In 2017, the Tenth Circuit Court of Appeals ruled that Oklahoma didn’t have jurisdiction to prosecute the murder, because it had occurred on the reservation of Murphy’s tribe, the Muscogee (Creek) Nation.
The court of appeals voided Murphy’s murder conviction and death sentence imposed in the Oklahoma state courts.
The case later landed in the U.S. Supreme Court, but the action by the court of appeals was the first sign that the federal government recognized that the reservations of the "Five Tribes" may never have been disestablished by Congress.
"Within weeks of that decision coming down, we'd already reached out to the other five tribes, and to Attorney General (Mike) Hunter," Greetham said, "to say, 'Look, this is going to have implications for law enforcement. There is no daylight that separates us as far as our commitment on these issues, let's start issue-spotting and figuring out what we're going to do.'"
Greetham said when "McGirt" was decided, all five tribes together stepped forward with what they referred to as that agreement in principal, which basically was to ask Congress to allow the tribes to compact with the state on certain jurisdictional issues.
Greetham said there is "a whole bunch of stuff" the Chickasaw Nation can compact on with the state.
"On the civil side, we can do whatever we want, basically," Greetham said. "On the criminal side, Congress ties our hands. These jurisdictional rules are laid out by federal law. So even when we sit down with Attorney General Hunter, and, for example a matter of tribal policy, we don't see any offense to tribal sovereignty for the state to have jurisdiction over non-Indians (in a situation where a crime is committed against a person with Indian blood by a non-Indian), federal law won't let us do it. Federal law won't let us compact with the state, (and) we don't necessarily like that situation. The five tribes are no longer working as one, but
Chickasaw and Cherokee have both made clear (that) we would welcome narrow federal legislation that authorized us to compact with the state on these very issues, lift the limitations imposed on us by federal statute, and let us as the folks on the ground who work in public safety figure out the best way to do it."
Laws will be enforced on the reservation
Greetham said laws will be enforced on the Chickasaw Nation Reservation, and that includes traffic laws.
"We're working with the Oklahoma Highway Patrol to essentially set up kind of uniform citation systems," Greetham said. "And there is going to be some mechanics involved in that. But we have a tribal traffic code, so you do not have license to travel 75 miles an hour down Mississippi if you wanted to, Lighthorse will stop you. And where there are effective cross-commissioning agreements in place, there's that master cross-deputation agreement where state and tribal law enforcement officers are able to get federal commissions to operate effectively as BIA (Bureau of Indian Affairs) police. And I believe the Oklahoma Highway Patrol is signatory on that.
"So, if ... Oklahoma Highway Patrol ... needed to arrest you, even if they lacked that authority as Oklahoma Highway Patrol, they have that federal commission, they can do so. By the same token, the Chickasaw Nation cross-commissions with folks where we offer Chickasaw Lighthorse commissions to local and state police. So, even if they don't have that federal commission, they might have a tribal commission, and they can use that to exercise jurisdiction. Then under state statute, Oklahoma statute authorizes tribal law enforcement to act as Oklahoma peace officers within Indian Country."
Which means, Greetham said, that even though Chickasaw Lighthorse police may lack jurisdiction over non-Indians, because of the statute, they can act as Oklahoma police, and enforce the law. And, non-tribal police who lack jurisdiction can enforce laws over those with Indian blood, if they have a tribal commission.
"And the goal of that is, you make sure the cops have all the badges they need, where you can intervene and do what needs to be done at the moment," he said.
"And then you can turn it over to prosecutors to figure out (who will take it from there)."