AG pulls challenge to McGirt ruling
Oklahoma tells US Supreme Court it was dismissing its appeal regarding Bosse
Oklahoma Attorney General John O'Connor on Friday withdrew the state's main challenge to the Supreme Court ruling recognizing the Muscogee (Creek) reservation, as the stack of complex legal cases stemming from the 2020 decision headed for a reshuffling.
In a brief motion, the state told the U.S. Supreme Court it was dismissing its appeal regarding Shaun Michael Bosse, an Oklahoma death row inmate whose case has been a primary focus in the wake of the McGirt v. Oklahoma decision.
The Oklahoma Court of Criminal Appeals in March applied the McGirt decision and reversed Bosse's convictions of killing Katrina Griffin and her two young children, ruling that the state didn't have jurisdiction because the victims were Chickasaw and the crimes
occurred on the Chickasaw reservation.
Under federal law, crimes involving Native Americans on reservations must be prosecuted by federal or tribal courts.
The Oklahoma attorney general's office sought review from the U.S. Supreme Court in the Bosse case, arguing that the state shared jurisdiction because Bosse is not a Native American. The state also said Bosse shouldn't have been able to appeal his convictions based on the McGirt ruling because he hadn't challenged the state's jurisdiction in his first round of appeals.
In its petition to the U.S. Supreme Court, the state also argued that the McGirt case was wrongly decided and should be overturned.
The Oklahoma Court of Criminal Appeals last month reversed itself in the Bosse case and many others, ruling that the McGirt decision was not retroactive and that it could not be raised by those whose convictions became final when they lost earlier appeals or failed to file one in time.
On Tuesday, the state court effectively reinstated Bosse's convictions — and those of three other death row inmates — handing the state a victory but removing the grounds for a petition to the U.S. Supreme Court.
Oklahoma will continue to appeal McGirt decision
The state has filed petitions with the U.S. Supreme Court in several other cases seeking reversal of the McGirt decision, though the arguments in those petitions are not fully developed and refer to the state's Bosse petition for elaboration.
O'Connor said Friday, “Although the Bosse case has now been resolved, many other criminal convictions were overturned because of the McGirt decision.
“Each case is important to the victims of the terrible crimes at issue, so we will continue to appeal these decisions to the U.S. Supreme Court. Each appeal also presents the Supreme Court with an opportunity to overrule McGirt or limit its ongoing impact on the people of Oklahoma.”
The U.S. Supreme Court may decide not to review any of the state petitions and stick with its 5-4 decision that has reshaped criminal jurisdiction in most of eastern Oklahoma.
Stephen Greetham, senior counsel for the Chickasaw Nation, which has been deeply involved in the Bosse case, said Friday, “With finality closer at hand, our thoughts remain with the family victimized in this heinous case.
“If the State continues trying to overturn rather than implement the law, we will continue to shine a light in court on the risks that attend their placing political position ahead of the public's interest in the law. In the meantime, we renew our call for all governments to work together out of our shared commitment to the public's safety and effective law enforcement.”
Meanwhile, Bosse's attorney has asked the Oklahoma Court of Criminal Appeals to pause any more actions in his case because the question of whether the McGirt decision was retroactive is heading to the U.S. Supreme Court.
The attorney for Clifton Parish, a state prison inmate whose case was at the center of the retroactivity ruling, said in an affidavit that she had hired two national experts in criminal law to challenge last month's decision that the McGirt ruling did not apply to those whose convictions were final.
One of those experts is MIchael R. Dreeben, a former top attorney at the U.S. Justice Department who has argued more than 100 cases before the U.S. Supreme Court. The other is Kendall Turner, a colleague of Dreeben at the Washington, D.C., law firm of O'Melveny and Myers.
The Oklahoma attorney general's office hired Washington, D.C., attorney Kannon K. Shanmugam to handle the Bosse case. It was not clear Friday whether Shanmugam, whose practice also focuses on the U.S. Supreme Court, would help with other McGirt-related cases.