State will fight inmate challenges tied to status of reservations

AG's office immersed in a second death row challenge related to the McGirt decision

Oklahoma Attorney General

Mike Hunter vowed Monday to fight attempts by “a flood” of prison inmates to win their r e l e a s e because of a U. S. Supreme Court ruling that the federal government has jurisdiction over major crimes involving Indians in the Muscogee (Creek) Nation's historic reservation.

“The McGirt case does not constitute a get-out-of-prisonfree card,” Hunter said at a news conference.

“We are not going to allow our justice system to be exploited by individuals who have murdered, raped or committed another crime of a serious nature while

the federal government considered whether to re-arrest and adjudicate their cases.”

Hunter's office is now involved in the case of a second death row inmate who potentially could have his state conviction overturned.

Federal public defenders representing Shaun Michael Bosse, a nonIndian convicted in 2012 of killing Katrina Griffin and her two young children, say Bosse should have been tried in federal court because the Griffins were citizens of the Chickasaw Nation and the crime was committed on the historic Chickasaw reservation.

“Given these factors, the state of Oklahoma had no jurisdiction to charge, try, convict or sentence Mr. Bosse for the crimes in this case,” the attorneys argued in a brief filed last month with the Oklahoma Court of Criminal Appeals.

The U.S. Supreme Court ruled on July 9 in the case of child rapist Jimcy McGirt that the Muscogee (Creek) reservation had never been officially disestablished and that McGirt was wrongly tried in state court because he is a member of a tribe and the crimes occurred on the Creek reservation.

In the aftermath of that decision, the high court upheld a ruling by the 10th U.S. Circuit Court of Appeals that Oklahoma death row inmate Patrick Dwayne Murphy, a Creek whose crimes were committed on the reservation, was wrongly tried in state court. Four others, including a man convicted of first-degree murder, had their judgments vacated by the high court after the McGirt decision was rendered.

Hunter said Monday that his office would use the Bosse case to seek guidance from the Oklahoma Court of Criminal Appeals about procedures for handling hundreds of similar arguments from inmates.

“In general, the McGirt decision by the United States Supreme Court has created a significant amount of confusion, especially with regard to inmates who are serving time in state custody for crimes committed on historic tribal lands,” Hunter said.

“Simply put, we are going to be taking the position that with regard to any of these requests, my office is going to oppose these requests.”

Hunter said a flood — upwards of 200 — inmates have brought new challenges in the wake of the McGirt decision; his office has estimated that nearly 2,000 inmates could try to have their convictions overturned.

“We'r e s p e c i f i c a l l y asking the court to clarify how Indian status is to be proven and to put the burden of proving Indian status on the defendant and proving it occurred within the boundaries of a reservation,” he said.

Hunter said he believes that, in cases in which the alleged perpetrator is a nonIndian, the state could have “concurrent jurisdiction” with the federal government on crimes committed against Indians on reservation land.

Muscogee (Creek) Nation Principal Chief David Hill said Monday, “We wholeheartedly support a rigorous process. The Supreme Court decision is all about fixing what was broken in the past to build a better system, not giving criminals a free pass. The simple reality is that today, as before, if you call the police they will come. If you commit a crime, you'll be brought to justice.”

Hill said that historic decisions by definition “upend the way things have been done. The goal can't be simply going back to the old way of doing things; it must be using the jurisdictional clarity provided by the court to build a better system that increases public safety and prosperity for all in the region, while ensuring all functions of government are being met during the transition."

Nicole McAfee, director of policy and advocacy for ACLU Oklahoma, said Hunter “made several concerning statements, suggesting everything from Oklahoma courts having concurrent jurisdiction with the federal government over alleged crimes on reservation land with Indigenous victims to the idea that courts, not tribes, get a say on who is Indigenous.

“As we've said before, there is much work to be done to unravel the decades of cases in which the state of Oklahoma wrongfully claimed jurisdiction over tribal citizens on tribal reservations, and we urge the AG's office to do that work, instead of trying to hold onto whatever jurisdiction it thinks it has.”

Though the McGirt case specifically addressed the Muscogee (Creek) Nation's reservation, it was widely expected to apply to the other members of the Five Tribes — the Cherokees, Chickasaws, Choctaws and Seminoles. No court has formally applied the decision to the other tribes, and Hunter said Monday the issue needs “its own unique review,'' which should include a hearing in which evidence is presented.

Hunter said an agreement in principle his office had developed with leaders of the Five Tribes was now in “a cooling-off period” after Hill and Seminole Nation Chief Greg P. Chilcoat withheld their support.