OKLAHOMA CITY – Repercussions from the U.S. Supreme Court decision last July in McGirt v. Oklahoma, which caused a transformation of more than a century of jurisprudence in Oklahoma, continue to ripple across the state.
In the appeal of convicted child molester Jimcy McGirt, the Supreme Court ruled last July that Congress never disestablished the Muscogee (Creek) reservation, which encompasses portions or all of 11 counties in eastern Oklahoma.
Subsequently, after a series of evidentiary hearings conducted by trial courts, the Oklahoma Court of Criminal Appeals ruled that Congress never dissolved the reservations of the Cherokee, Choctaw, Chickasaw or Seminole Nations – the other members of the Five Tribes – either.
Consequently, literally hundreds of Native Americans have successfully appealed to have their convictions for crimes that occurred within the boundaries of the Five Tribes vacated and either refiled in federal courts or dismissed entirely.
For example, a spokesperson for Acting U.S. Attorney Clint Johnson in Oklahoma’s Northern District federal court in Tulsa said last month that office anticipates its caseload will increase by between 500 and 600 cases that, for now, are still on the books in state courts.
There’s also the case of Shannon Kyle Bonner, who pleaded “no contest” in Garvin County in 2018 to first-degree burglary and second-degree robbery during two domestic disputes with an ex-girlfriend in Pauls Valley two years earlier, and was sentenced to prison for 10 years.
After McGirt, though, Bonner asserted in December 2020 that the state court lacked jurisdiction to try him because he is a member of the Chickasaw Nation and his crimes occurred within the tribe’s boundaries.
So, he was indicted in the Western District federal court in Oklahoma City on April 8 on two counts: robbery in Indian Country and first-degree burglary in Indian Country. He was incarcerated in the Lawton Correctional Facility on Sunday.
Bonner, 38, previously was convicted in Stephens County of conspiracy to commit a drug crime, and pleaded guilty in Garvin County to possession of marijuana, destroying evidence, unauthorized use of a motor vehicle, being a convicted felon in possession of a firearm, and concealing stolen property.
McGirt was convicted in 1997 by a Wagoner County jury of first-degree rape by instrumentation, lewd molestation and forcible sodomy of a 4-year-old girl at a residence in Broken Arrow.
He was sentenced to 500 years’ imprisonment on the first two charges and life without parole on the third, at least in part because previously he was convicted in 1989 on two counts of forcible oral sodomy of two children in Oklahoma County.
After the Supreme Court ruling, the case was picked up by the U.S. Attorney’s office for the Eastern District of Oklahoma, which secured a grand jury indictment against McGirt on Aug. 17, 2020, on three counts of aggravated sexual abuse in Indian Country.
At the conclusion of a three-day trial Nov. 4-6, 2020, in Oklahoma’s Eastern District federal court at Musk- ogee, a jury found McGirt guilty, apparently on just one of the three charges. The victim, who is now 28, testified at his retrial in federal court that McGirt sexually molested her three times in August 1996 while she was staying with her grandmother and McGirt, who was married to the grandmother.
Federal prosecutors said McGirt, 72, faces 30 years to life in prison; currently he is incarcerated in the Cimarron Correctional Facility at Cushing. His attorneys previously said the verdict would be appealed but no such document had been filed by April 17.
BOSSE DECISION APPEALED BY A.G.
Another prominent defendant is Shaun Michael Bosse, who is sitting on Death Row at the State Penitentiary in McAlester for murders committed in the Chickasaw Reservation, which encompasses all or parts of 13 counties in eastern Oklahoma.
A McClain County jury found Bosse guilty of three counts of first-degree murder in the 2010 slayings of a single mother and her two young children at their residence near Dibble. The murders were committed on property that lies inside the Chickasaw Nation, and all of the victims were on the Chickasaw membership rolls.
Bosse, 38, a Caucasian, was sentenced to death for the slayings plus 35 years in prison and a $25,000 fine for arson.
After an evidentiary hearing in McClain County, District Judge Leah Edwards ruled last October that Bosse was wrongly convicted in a state district court because his trial should have been held in federal court, and the Chickasaw Reservation was never dissolved by Congress.
Consequently, the Oklahoma Court of Criminal Appeals reversed Bosse’s conviction on March 11 and directed that his case be dismissed. However, the appellate court stayed those actions for 20 days, apparently to give the tribes or the federal government time to decide whether to refile charges in tribal or federal court.
Stephen Greetham, senior counsel for the Chickasaw Nation, said the family of Bosse’s victims reached out to the tribe with concerns that Bosse could escape capital punishment.
The tribe has no voice in the matter, Greetham responded, because Bosse is not American Indian.
“He’s not subject to our jurisdiction, so it’s entirely at the discretion of the federal prosecutor,” Greetham said.
It is widely anticipated that Bosse will face murder charges in federal court, but the death sentence is less certain.
Chris Wilson, first assistant U.S. Attorney in the Eastern District of Oklahoma, confirmed to the Ledger last year that – as a general rule – in the federal judicial system, capital punishment cannot be imposed on a Native American convicted of committing murder in Indian Country unless the tribe has “opted in” to the death penalty. Of the 39 federally recognized tribes in Oklahoma, only the Sac & Fox Nation sanctions capital punishment, Wilson said.
Whether the same stricture extends to a non-Indian convicted of murdering an Indian in Indian Country is unclear.
Earlier this month the state Court of Criminal Appeals granted Oklahoma Attorney General Mike Hunter a 45-day stay while his office prepares to file a petition with the Supreme Court of the United States.
The ruling means Bosse will stay in state custody rather than be transferred to federal custody, which was previously mandated by the Court of Criminal Appeals.
Hunter contends the state should have jurisdiction over Bosse and other non-Native Americans even if their crimes were committed on tribal reservation lands.
“The 45-day stay will allow us time to file for a further stay from the U.S. Supreme Court so they have time to consider whether to grant us the opportunity to argue our case,” Hunter wrote. “The Mc- Girt decision has created confusion across governments, and many unanswered questions that can only be resolved by the U.S. Supreme Court.”
Attorneys with the Attorney General’s Office have already drafted the request for a further stay from the U.S. Supreme Court and plan to file it in the coming days, said Alex Gerszewski, the AG’s communications director.
Meanwhile, some previous state-court convictions may not be refiled in federal or tribal courts because the statute of limitations has expired or no corresponding offenses are provided for in federal or tribal court systems.