Supreme Court tribal decision 'has upended Oklahoma's criminal justice system;' will ruling be curtailed?
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Oklahoma’s criminal justice system is grappling with the impact of a U.S. Supreme Court decision last year ruling that a large part of eastern central Oklahoma is an American Indian reservation.
The decision held that U.S. treaties gave the Muscogee (Creek) Nation a permanent home in Oklahoma—which meant that tribal members who commit crimes on the Creek Reservation can’t be prosecuted by the state of Oklahoma. Instead, they have to be tried by the federal government for major crimes or by tribal courts for other crimes.
The decision was McGirt v. Oklahoma. According to the Washington Post, the McGirt ruling “has upended Oklahoma’s criminal justice system, imperiled convictions in thousands of cases, sowed confusion for police and emergency responders and led to the direct release of more than 50 criminals convicted on charges including second-degree murder and child abuse.”
The McGirt decision concerned the Muscogee (Creek) reservation. But the Oklahoma Court of Criminal Appeals ruled in a series of decisions after McGirt that four other tribes had also been given permanent reservations—the Cherokee, Chickasaw, Choctaw and Seminole, the state of Oklahoma said in a Supreme Court filing in a post-McGirt case.
“This triples the total population that lives on Indian country in the United States,” the state said.
Ryan Leonard, special counsel for Native American affairs for Oklahoma’s governor, told the Washington Post that the situation is like “living a nightmare.”
“It’s complete, dysfunctional chaos in the state of Oklahoma,” he said.
An expanded U.S. attorney’s office for the Northern District of Oklahoma plans to retry those who were convicted in the most serious cases. So far, the office has reviewed 2,460 cases and accepted 826 for prosecution, according to the Washington Post. More than 1,400 cases have been referred to the tribes, which are adding prosecutors, judges and marshals.
But some cases can’t be retried because the statute of limitations has expired, according to the Washington Post. According to the state of Oklahoma, it is likely that 27% of defendants who raise McGirt issues after conviction will have a good chance of going free without re-prosecution. Faded memories and unavailable witnesses are also a problem.
Oklahoma hopes to limit the reach of the McGirt decision. The state filed an emergency stay application with the Supreme Court in the case of Shaun Michael Bosse, whose murder conviction was tossed by the Oklahoma Court of Criminal Appeals because of the McGirt case.
The federal government plans to retry Bosse, but the state wanted the Bosse decision to be stayed while it prepares a cert petition. The Supreme Court granted a stay to the state May 26 over the dissents of liberal Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, SCOTUSblog reported at the time.
There was no dissent by Justice Neil M. Gorsuch, who wrote the McGirt decision. He formed the majority, along with Breyer, Sotomayor, Kagan and Justice Ruth Bader Ginsburg, who has since died.
As a result of the stay, Oklahoma may retain custody of Bosse pending a decision on cert, according to SCOTUSblog. Bosse contends that his conviction should be vacated because the slain woman and her two slain children were tribal members, and the crime happened on the reservation. Bosse is not a Native American, but he claims that the state can’t try him under McGirt.
Some think the Supreme Court stay “may indicate that some of the justices are willing to reexamine or limit the McGirt ruling,” the Washington Post said.
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