Bosse to stay in Oklahoma custody while McGirt ruling is appealed to Supreme Court

Chris Casteel
Oklahoman
Shaun Bosse

The Oklahoma Court of Criminal Appeals agreed Thursday to grant a 45-day pause in overturning the murder convictions of death row inmate Shaun Michael Bosse, giving Oklahoma Attorney General Mike Hunter time to seek U.S. Supreme Court review of key questions arising out of last year’s Indian reservation decision.

The court’s ruling came after judges heard oral arguments from Hunter’s office and lawyers representing Bosse. The judges and attorneys appeared perplexed at times by how the legal process may play out in a seminal case in the transition to federal and tribal jurisdiction in criminal cases involving Indians.

Though judges expressed confidence in their March 11 ruling that the state did not have jurisdiction to try Bosse for murder, some were concerned that transferring Bosse to federal custody might mean he would never be returned to the state even if the Supreme Court agrees with Hunter.

McGirt reaction:Chickasaw Nation says Gov. Kevin Stitt exaggerating impacts of ruling

The court’s order on Thursday will keep Bosse in state custody as Hunter pursues an appeal in the U.S. Supreme Court. The U.S. attorney’s office in Oklahoma City has filed a murder complaint against Bosse and is poised to take custody should Hunter’s efforts fail.

Hunter said, “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. … While we prepare our petition, my heart remains with the victims, including a family member of one of Bosse’s victims who was in the courtroom today.”

Bosse was sentenced to death in McClain County for killing Katrina Griffin and her two children in 2010; Griffin and her children were members of the Chickasaw Nation.

A map of Indian reservations in Oklahoma shows the jurisdiction of the Five Tribes, the Cherokees, Chickasaws, Choctaws, Creeks and Seminoles.

Bosse case recognized Chickasaw Nation reservation

The Bosse case is a significant one in the aftermath of the U.S. Supreme Court decision rendered last year that the Muscogee (Creek) Nation reservation was never disestablished.

The high court's decision, in the case of convicted child rapist Jimcy McGirt, has resulted in the Court of Criminal Appeals ruling, in four separate criminal cases, that the reservations of the Cherokees, Chickasaws, Choctaws and Seminoles also were never disestablished and that federal and tribal courts have jurisdiction over crimes involving Indians on the reservations. 

The Bosse case is the one in which the Chickasaw reservation was formally recognized.

Cherokee:Nation hundreds of criminal cases, seeks tools to fight crime on reservation

Hunter has not disputed applying McGirt to the Chickasaw reservation. Instead, he contends that the state still had jurisdiction over Bosse because he was not a member of any tribe. Hunter also contends that Bosse shouldn’t have been allowed to appeal his convictions based on the McGirt ruling because the deadline had passed for him to raise new issues.

The attorney general wants the Supreme Court to clarify whether the state retains jurisdiction over non-Indian defendants who commit crimes against Indians on reservations and whether the legal limits on appeals prohibit some inmates from seeking relief under the McGirt decision.

The Court of Criminal Appeals, in its March decision, rejected Hunter’s arguments and last week rejected his request to rehear the case. The order issued Thursday effectively delays its decision overturning Bosse's convictions and recognizing the Chickasaw reservation from going into effect for 45 more days.

Previous coverage:Oklahoma AG insists state properly tried Bosse for killing mother, two children

During oral arguments on Thursday, Judge Robert L. Hudson said the court’s “good cause” test for granting a delay was likely met by the fact that the state could lose any chance of regaining custody of Bosse if the federal government takes custody and begins its own case.

Federal public defender Emma V. Rolls, representing Bosse, said Bosse’s convictions would be reinstated if Hunter’s arguments prevailed with the U.S. Supreme Court. But Hudson said he had not seen any legal basis for the assumption that Bosse would be returned to state custody if Hunter prevailed.

Oklahoma Solicitor General Mithun Mansinghani suggested to the judges that, if the administration takes a stance against the death penalty, the federal government might not want to return Bosse to the state’s death row.

The Chickasaw Nation has filed briefs in the Bosse case arguing against Hunter's legal position but sanctioning a delay of up to 60 days to allow more time for the tribe's law enforcement agencies and criminal justice system to prepare for their new obligations.