OKLAHOMA CITY – A district judge for McClain and Garvin counties is the latest jurist asked to decide whether the case against an Oklahoman accused of committing a serious crime on Indian land other than the Muscogee (Creek) reservation should be dismissed so the charge can be refiled in federal court.
Leah Edwards, a district judge for McClain and Garvin counties, held a hearing Wednesday morning in Purcell on a motion by attorneys representing Sean Michael Bosse, 37, of Blanchard. He was convicted by a McClain County jury of murdering a single mother and her two young children at their residence near Dibble in 2010 and was sentenced to death.
The U.S. Supreme Court decision July 9 in the McGirt case “controls Reservation status and federal criminal jurisdiction,” Bosse’s attorneys, assistant federal public defenders Michael W. Lieberman and Sarah M. Jernigan, asserted.
The parameters of criminal jurisdiction in Indian Country are “clearly defined by federal law,” they argued. Under the Major Crimes Act (MCA), federal courts have exclusive jurisdiction over prosecutions for certain crimes committed by Indians in Indian Country.
In the legal brief they submitted to the judge, Bosse’s lawyers argued three points:
• The State of Oklahoma has no jurisdiction over crimes committed by or against Native Americans in Indian Country. The crimes of which Bosse was convicted occurred near Dibble on land that lies within the Chickasaw Reservation.
• Oklahoma lacks jurisdiction over prosecutions of crimes committed by or against Native Americans in Indian Country within Oklahoma under the General Crimes Act (GCA); such offenses are subject to federal or tribal jurisdiction.
The GCA “establishes federal jurisdiction over ‘interracial’ crimes, those in which the defendant is an Indian and the victim is a non-Indian, or vice versa”. Bosse is a white man but was convicted of killing a woman and her two children, all of whom were members of the Chickasaw Nation.
The test for Indian status is satisfied in the Bosse case because all three victims were registered citizens of the Chickasaw Nation, his attorneys noted. The Chickasaw Nation’s Tribal Government Services submitted documents on which were printed the tribal membership numbers of the three murder victims, and the degree of Indian blood for each of them, at the time of their deaths.
• Oklahoma has jurisdiction over all offenses committed by non-Indians against non-Indians in Indian Country, “but state jurisdiction extends no further.”
ATTORNEY GENERAL CLAIMS OTHERWISE
State Attorney General Mike Hunter, Solicitor General Mithun Mansinghani, and Assistant Attorneys General Caroline E.J. Hunt and Jennifer L. Crabb disagreed with virtually all of those points.
The text of the General Crimes Act does not exclude state jurisdiction over crimes committed by non-Indians like those perpetrated by Bosse, the state prosecutors argued. The GCA confers federal jurisdiction over Bosse’s crimes, but “nothing in the text of that law deprives the state of concurrent jurisdiction over the same crimes”.
State jurisdiction in the Bosse case provides “additional assurance that tribal members who are victims of crime will receive justice, either from the federal government, state government, or both,” the state prosecutors wrote.
There is no reason to assume that the federal government has exclusive jurisdiction over non-Indian-on-Indian crimes covered by the General Crimes Act, the state maintained. “Nor is there reason to believe the State of Oklahoma will not vigorously defend the rights of Indian victims, as it has for a century.”
Although federal criminal jurisdiction is limited by federalism concerns, “states retain primary criminal jurisdiction in our system,” the Attorney General wrote. “Thus, the general rule in state prosecutions – including in Oklahoma – is that a state is presumed to have jurisdiction over all crimes committed within its borders.”
State prosecution of non-Indians who victimize Native Americans “does not interfere with the federal government’s concurrent jurisdiction over such crimes,” the AG’s office wrote, “nor does it impinge on tribal sovereignty...”
SCOTUS RULING REFERENCED ONLY CREEK RESERVATION
Hunter also insists that in its McGirt ruling the Supreme
Court of the United States limited its decision to the Creek Nation’s reservation. Any question as to a Chickasaw Reservation should be explored in state district court “to receive full argument and evidence on the treaties, statutes, and historical materials relevant” to the issue.
The district attorney for Seminole County, Paul Smith, raised the same issue in a McGirt related case there. “The counsel of the U.S. Attorneys for the State of Oklahoma and the Oklahoma Attorney General have each asserted publicly that the McGirt ruling is case specific only to the boundaries of the 1866 Muscogee (Creek) Nation Reservation boundaries,” Smith asserted. He wants clarity on which jurisdiction, state or federal, can prosecute the case in Seminole County.
BOSSE WAITED TOO LONG TO RAISE ISSUES
The AG’s office maintains that Bosse waited too long to raise certain issues in his appeal. For example, he did not raise his jurisdictional challenge in his petitions to the courts in 2015 nor in 2017. “It is axiomatic that Oklahoma law limits the grounds for relief that may be raised in a subsequent post-conviction application.”
Bosse “committed these crimes in July 2010, ten years ago,” the prosecutors pointed out. Also, all of the fact “underlying his jurisdictional claim – that is, his evidence that the Chickasaw Reserva- tion has allegedly not been disestablished and that his victims were allegedly Indians – were available to him at every prior stage of this criminal case...” Yet Bosse did not raise these issues “until nearly nine years after his crimes.”
Bosse failed to raise his jurisdictional claim “at trial, on direct appeal, in his first post-conviction proceeding, or within 60 days of uncovering the facts underlying the claim.”
CLARIFICATION SOUGHT ON SEVERAL ISSUES
Hunter and his staff asked Judge Edwards to “provide guidance for the numerous cases affected by McGirt by resolving issues left unsettled ... in this case.”
Specifically, the AG’s staff wrote, the court should “clarify how Indian status is to be proven, that the defendant has the burden of proving Indian status and that the location of his crime fell within the boundaries of the purported reservation,” that the McClain County District Court has concurrent jurisdiction under the General Crimes Act and that the trial court had jurisdiction in the Bosse case, “and that McGirt expressly limited its holding to the Creek Reservation and that this court will not ... expand that holding without remand to the district court” for further examination.
The McClain County Court Clerk’s office reported Wednesday afternoon that Judge Edwards took the case under advisement.
In a side note: the Chickasaw Nation membership rolls include Judge Edwards’ family. She offered all parties an opportunity to request her disqualification from hearing the Bosse case, but neither side asked her to recuse herself.