AG argues jurisdiction in crimes involving Indians
Laying out an approach to counter hundreds of anticipated criminal appeals stemming from a recent U.S. Supreme Court decision, the Oklahoma attorney general's office argued Tuesday that the state shares jurisdiction with the federal government on crimes committed by non-Indians against Indians on reservations.
“There is no reason to assume that, merely because the federal government has jurisdiction over a certain matter, such jurisdiction necessarily precludes concurrent state jurisdiction,” the state said in a brief filed with the Oklahoma Court of Criminal Appeals.
The state also argued that death row in mate Shaun Michael Bosse, who killed three members of the Chickasaw Nation, waited too long to claim the state had no jurisdiction over his case. And the state asked the Court of Criminal Appeals to devise a method of determining whether the Supreme Court's ruling that the Muscogee (Creek) Nation's reservation was never terminated applies to other tribes.
The brief was filed a day after Oklahoma Attorney General Mike Hunter said the state would challenge efforts by state prison inmates to win their release or new trials by claiming the state did not have jurisdiction.
The U.S. Supreme Court ruled on July 9 that the federal government had jurisdiction over major crimes committed by Indians on the historic Creek reservation because the reservation was never terminated.
Though the case of child rapist Jimcy McGirt was specific to the Creek reservation, t he decision was expected to apply to the other members of the Five Tribes — the Cherokees, Chickasaws, Choctaws and Seminoles.
Bosse, a non-Indian, was convicted of killing Chickasaw Nation members. According to his attorneys, the crimes were committed on t he historic Chickasaw reservation.
A brief filed on Boss e' s behalf last month says “the state cannot point to any statute (because none exists) that terminated the Chickasaw Reservation.” The brief noted that the U.S. Supreme Court, after issuing the McGirt decision, vacated the judgments of a handful of inmates whose crimes were committed on land outside the Creek reservation, effectively expanding the scope of the McGirt decision.
The attorney general' s office is now asking the Court of Criminal Appeals to determine “whether an evidentiary hearing is necessary where a reservation of any other Tribe besides the Creeks' is involved.”
Concurrent jurisdiction
Prior to the McGirt decision, Hunter and leaders of the Five Tribes held detailed discussions about a framework for an agreement on criminal and civil jurisdictional issues. The talks were held on the presumption that the Supreme Court might rule that a Creek reservation still exists and that federal legislation might be necessary to clarify certain matters. Those talks are now in a “cooling-off” period, Hunter said Monday.
A spokesman f or Hunter said Tuesday that there was no contradiction between Hunter working with the leaders of all Five Tribes but not conceding in the Bosse case that the Chickasaw reservation still exists.
“Our brief in Bosse takes no position on the reservation of the other four tribes, but recognizes that McGirt is relevant to an eventual court determination as to whether they have a reservation, given that the Supreme Court did not definitively answer those questions in McGirt,” said Alex Gerszewski.
“The proposed framework asks Congress to answer the many questions left unsettled by McGirt, rather than having courts sort out those questions over the coming decades.”
The framework announced by Hunter's office last month provided for concurrent jurisdiction on criminal matters.
It affirmed tribal jurisdiction on its reservations and affirmed “the State's criminal jurisdiction over all offenders throughout that same area, including appropriate and legal mechanisms to address matters concerning existing convictions, with the exception of crimes involving Indians committed on Indian trust or restricted lands.”
In the brief filed Tuesday, Hunter' s office conceded that some state courts have concluded that states lack jurisdiction over non-Indians who commit crimes in Indian country. But the state's attorneys argued that nothing in the text of the General Crimes Act “deprives the State of concurrent jurisdiction over the same crimes.”
Too late?
One of the key arguments made by the state on Tuesday, which may be relevant in other cases stem ming from the McGirt decision, is that Bosse waited too long to raise the issue of jurisdiction. State and federal laws limit the number of new issues on which an inmate can seek review.
Hunter's office said Bosse exhausted hi s appeals and that the McGirt ruling did not provide the means for raising a new issue.
Hunter's office said t hat “even prior to this decision, under the relevant federal statutes, the State did not have jurisdiction to prosecute an Indian who committed a major crime in Indian Country. M cG ir ts imply held that the original Creek Reservation was still Indian Country for purposes of these statutes.
“For all these reasons, McGirt did not announce a new rule, let alone a retroactive one.”
Boss e' s attorneys also seemed to say in their brief that the McGirt case broke no new ground, arguing that the Supreme Court made the result clear in a 1984 case about reservations.
“To the extent any confusion remained, the Supreme Court reiterated inMc Girt that it meant what it said” in the previous decision, Bosse's attorneys stated.