The Supreme Court on Wednesday granted a request by Oklahoma to allow the state to retain custody of a death-row inmate while the court considers whether to clarify the implications of last year’s decision in McGirt v. Oklahoma holding that Oklahoma lacks jurisdiction over certain crimes committed on land reserved for Native Americans (article available here).
The inmate, Shaun Bosse, was convicted and sentenced to death for the 2010 murders of Katrina Griffin and her two young children. He now claims that his conviction is invalid under McGirt v. Oklahoma because Griffin and her children were members of the Chickasaw Nation and the crime occurred within the boundaries of a Native American reservation. An Oklahoma appeals court agreed and threw out his conviction and sentence. If that ruling is allowed to take effect, Oklahoma will have to hand Bosse over to federal authorities (who have filed separate criminal charges against him). But the Supreme Court – over the objections of three justices – granted the state’s request to put the Oklahoma court’s ruling on hold while the state files a petition asking the justices to take up the case on the merits.
The Acting U.S. Solicitor General took the relatively unusual step of filing, without being asked by the justices, a “friend of the court” brief in which she agreed with Bosse that Oklahoma lacks the power to try him for offenses against Native Americans. There is “no basis,” the Solicitor General wrote, “to reverse the long-held understanding of the division of federal, state, and tribal jurisdiction in Indian country.” “To the contrary,” she concluded, “this Court has reaffirmed the established rule that a State does not have jurisdiction over offenses by non-Indians against Indians in Indian country.”
The court’s order was a victory for the Oklahoma Attorney General’s office, which claims the state still has jurisdiction in cases in which a non-Indian committed a crime against a Native American on a reservation.