Date: 03-11-2021

Case Style:

Shaun Michael Bosse v. The State of Oklahoma

Case Number: PCD-2019-124

Judge: Kuehn

Court: Oklahoma Court of Criminal Appeals MICHAEL W. LEIBERMAN SARAH M. JERNIGAN

Plaintiff's Attorney: Mike Hunter, Greg Mashburn, Susan Caswell, Jennifer L. Crabb, Caroline E.J. Hunter

Defendant's Attorney: STEPHEN GREETHAM and DEBRA GEE
FRANK S. HOLLEMAN
DOUGLAS B.L. ENDRESON
SONOSKY, CHAMBERS, SACHSE,

Description: ¶1 Shaun Michael Bosse was tried by jury and convicted of three
counts of First Degree Murder and one count of First Degree Arson in
the District Court of McClain County, Case No. CR-2010-213. He was
sentenced to death on the murder counts and to thirty-five (35) years
imprisonment and a $25,000.00 fine for the arson count.
¶2 On direct appeal, this Court upheld Petitioner’s convictions
and sentences.’ Petitioner’s first Application for Post-Conviction Relief
in this Court was denied.2 Petitioner filed this Successive Application
1 Bosse v. State, 2017 OK CR 10, 400 P.3d 834, reh’g granted and relief denied,
2017 OK CR 19, 406 P.3d 26, cert. denied, 138 S.Ct. 1264 (2018).
2 Bosse z.’. State, No. PCD-2013-360 (Okl.Cr. Dec.16, 2015) (not for publication).
1
for Post-Conviction Relief on February 20, 2019. The crux of
Petitioner’s Application lies in his jurisdictional challenge.
¶3 In Proposition I Petitioner claims the District Court lacked
jurisdiction to try him. Petitioner argues that his victims were citizens
of the Chickasaw Nation, and the crime occurred within the
boundaries of the Chickasaw Nation. He relies on McGirt v. Oklahoma,
140 S.Ct. 2452 (2020) in which the United States Supreme Court
reaffirms the basic law regarding federal, state and tribal jurisdiction
over crimes, which is based on the location of the crimes themselves
and the Indian status of the parties. The Court first determined that
Congress, through treaty and statute, established a reservation for the
Muscogee Creek Nation. Id., 140 S.Ct. at 2460-62. Having established
the reservation, only Congress may disestablish it. Id., 140 S.Ct. at
2463; Solem v. Bartlett, 465 U.S. 463, 470 (1984). Congress must
clearly express its intent to disestablish a reservation, commonly with
an “explicit reference to cession or other language evidencing the
present and total surrender of all tribal interests.” McGirt, 140 S.Ct. at
2462 (quoting Nebraska v. Parker, 136 S.Ct. 1072, 1079 (2016)). The
Court concluded that Congress had not disestablished the Muscogee
Creek Reservation. McGirt, 140 S.Ct. at 2468. Consequently, the
2
federal and tribal governments, not the State of Oklahoma, have
jurisdiction to prosecute crimes committed by or against Indians on
the Muscogee Creek Reservation. 18 U.S.C. § 1152, 1153.
¶4 The question of whether Congress has disestablished a
reservation is primarily established by the language of the law —
statutes and treaties — concerning relations between the United States
and a tribe. McGirt, 140 S.Ct. at 2468. “There is no need to consult
extratextual sources when the meaning of a statute’s terms is clear.
Nor may extratextual sources overcome those terms.” McGirt, 140 S.Ct.
at 2469. Neither historical practices, nor demographics, nor
contemporary events, are useful measures of Congress’s intent unless
there is some ambiguity in statute or treaty language. Id. at 2468-69;
see also Oneida Nation. v. Village of Hobart, 968 F.3d 664, 675 n.4 (7th
Cir. 2020) (McGirt “establish[edj statutory ambiguity as a threshold for
any consideration of context and later history.”). Thus our analysis
begins, and in the case of the Chickasaw Nation, ends, with the plain
language of the treaties.
¶5 McGirt itself concerns only the prosecution of crimes on the
Muscogee Creek Reservation. However, its reasoning applies to every
claim that the State lacks jurisdiction to prosecute a defendant under
3
18 U.S.C. § 1152, 1153. of course, not every tribe will be found to
have a reservation; nor will every reservation continue to the present.
“Each tribe’s treaties must be considered on their own terms. . .
McGirt, 140 S.Ct. at 2479. The treaties concerning the Five Tribes
which were resettled in Oklahoma in the mid- 1800s (the Muscogee
creek, Cherokee, Chickasaw, Choctaw, and Seminole) have
significantly similar provisions; indeed, several of the same treaties
applied to more than one of those tribes. It is in that context that we
review Petitioner’s claim.
¶6 On August 12, 2020, this Court remanded this case to the
District Court of McClain County for an evidentiary hearing. The
District Court was directed to make findings of fact and conclusions of
law on two issues: (a) the victims’ status as Indians; and (b) whether
the crime occurred in Indian Country, within the boundaries of the
Chickasaw Nation Reservation. Our Order provided that the parties
could enter into written stipulations. On October 13, 2020, the District
Court filed its Findings of Fact and Conclusions of Law in the District
Court.
4
Stipulations regarding victims’ Indian status
¶7 The parties stipulated that all three victims of the crime,
Katrina and Christian Griffin and Chasity Hammer, were members of
the Chickasaw Nation. This stipulation included recognition that the
Chickasaw Nation is a federally recognized tribe. The District Court
concluded as a matter of law that all three victims had some Indian
blood and were recognized as Indian by a tribe or the federal
government. We adopt these findings and conclusions, and find that
the victims in this case were members of the Chickasaw Nation.
District Court Findings of Fact
¶8 The District Court found that Congress established a
reservation for the Chickasaw Nation of Oklahoma. The District Court
found these facts:
(1)The Indian Removal Act of 1830 authorized the federal
government to negotiate with Native American tribes for their
removal to territory west of the Mississippi River in exchange for
the tribes’ ancestral lands. Indian Removal Act of 1830, § 3, 4
Stat. 411, 412.
(2)The 1830 Treaty of Dancing Rabbit Creek (1830 Treaty) granted
citizens of the Choctaw Nation and their descendants specific
5
land in fee simple, “while they shall exist as a nation and live on
it,” in exchange for cession of the Choctaw Nation lands east of
the Mississippi River. Treaty of Dancing Rabbit Creek, art. 2,
Sept. 27, 1830, 7 Stat 333. The Treaty provided that any territory
or state should have neither the right to pass laws governing the
Choctaw Nation nor embrace any part of the land granted the
Choctaw Nation by the treaty. Id. art. 4. The land boundaries
were:
[B]eginning near Fort Smith where the Arkansas boundary
crosses the Arkansas River, running thence to the source of
the Canadian fork; if in the limits of the United States, or to
those limits; thence due south to Red River, and down Red
River to the west boundary of the Territory of Arkansas;
thence north along that line to the beginning.
Id. art. 2.
(3) The 1837 Treaty of Doaksville (1837 Treaty) granted the
Chickasaw Nation a district within the boundaries of the 1830
Treaty of Dancing Rabbit Creek, to be held by the Chickasaw
Nation on the same terms as were granted to the Choctaw Nation.
1837 Treaty of Doaksville, art. 1, Jan. 17, 1837, 11 Stat 573.
(4) Congress modified the western boundary of the Chickasaw
Nation in the 1855 Treaty of Washington (1855 Treaty), pledging
6
to “forever secure and guarantee” the land to those tribes, and
reserving them from sale without both tribes’ consent. 1855
Treaty of Washington with the Choctaw and the Chickasaw, art.
1, 2, June 22, 1855, 11 Stat. 611. This Treaty also reaffirmed
the Chickasaw Nation’s right of self-government. Id. art. 7.
(5)In 1866, the United States entered into the 1866 Treaty of
Washington (1866 Treaty), which reaffirmed both the boundaries
of the Chickasaw Nation and its right to self-governance. 1866
Treaty of Washington with the Chickasaw and Choctaw, art. 10,
Apr. 28, 1866, 14 Stat. 699.
(6)The parties stipulated that the location of the crime, 15634 212th
St., Purcell, OK, is within the boundaries of the Chickasaw
Nation set forth in the 1855 and 1866 Treaties.
(7)The property at which the crime occurred was transferred directly
in 1905 from the Choctaw and Chickasaw Nations to George
Roberts, in a Homestead Patent. Title may be traced directly to
the Reservation lands granted the Choctaw and Chickasaw
Nations, and subsequently allotted to individuals, and was never
owned by the State of Oklahoma.
7
(8)The Chickasaw Nation is a federally recognized Indian tribe,
exercising sovereign authority under a constitution approved by
the United States Secretary of the Interior.
(9) No evidence before the District Court showed that the treaties
were formally nullified or modified in any way to reduce or cede
Chickasaw lands to the United States or to any other state or
territory.
(10) The parties stipulated that if the District Court determined the
treaties established a reservation, and if the District Court
concluded that Congress never explicitly erased the boundaries and
disestablished the reservation, then the crime occurred within
Indian Country as defined by 18 U.S.C. § 1151(a).
District Court Conclusions of Law
¶9 The District Court first found, and this Court agrees, that the
absence of the word “reservation” in the 1855 and 1866 Treaties is not
dispositive. McGirt, 140 S.Ct. at 2461. The court emphasized the
language in the 1830 Treaty that granted the land “in fee simple to
them and their descendants, to inure to them while they shall exist as
a nation.” 1830 Treaty, art. 2. The 1830 Treaty secured rights of self
government and jurisdiction over all persons and property with Treaty
8
territory, promising that no state should interfere with the rights
granted under the Treaty. Id. art. 4. That treaty applies to the
Chickasaw Nation under the 1837 Treaty of Doaksville, which
guaranteed the Chickasaw Nation the same privileges, rights of
homeland ownership and occupancy granted the Choctaw Nation by
the 1830 Treaty. 1837 Treaty, art. 1. In the 1855 Treaty, the United
States promised to “forever secure and guarantee” specific lands to the
Choctaw and Chickasaw Nations, and reaffirmed those tribes’ rights to
self-government and full jurisdiction over persons and property within
their limits. 1855 Treaty arts. 1, 7. This was reaffirmed in the 1866
Treaty, by which the Chickasaw and Choctaw Nations agreed to cede
defined lands to the United States for a sum certain. 1866 Treaty, art.
3. Thus, the District Court concluded, the treaty promises to the
Chickasaw Nation were not gratuitous. McGirt, 140 S.Ct. at 2460.
¶10 Based on this law, the District Court concluded that
Congress established a reservation for the Chickasaw Nation. We
adopt this conclusion of law.
¶11 The District Court found that Congress has not
disestablished the Chickasaw Nation Reservation. After Congress has
established a reservation, only Congress may disestablish it, by clearly
9
expressing its intent to do so; usually this will require “an explicit
reference to cession or other language evidencing the present and total
surrender of all tribal interests.” McGirt, 140 S.Ct. at 2463 (quoting
Parker, 136 S.Ct. at 1079). The District Court found no explicit
indication or expression of Congressional intent to disestablish the
Chickasaw Reservation. The Court specifically stated, “No evidence
was presented that the Chickasaw reservation was ‘restored to public
domain,’ ‘discontinued, abolished or vacated.’ Without, [sic] explicit
evidence of a present and total surrender of all tribal interests, the
Court cannot find the Chickasaw reservation was disestablished.”
Findings of Fact and Conclusions of Law, CF-2010-213, PCD-2019-
124, Oct. 13, 2020 at 9-10 (internal citations omitted).
¶ 12 Based on the evidence, the District Court concluded that
Congress never erased the boundaries and disestablished the
Chickasaw Nation Reservation. The Court further concluded that the
crimes at issue occurred in Indian Country. We adopt these
conclusions.
The State’s Arguments
¶13 After the evidentiary hearing, a supplemental brief was filed
on behalf of the State of Oklahoma by the District Attorney for McClain
10
County. The Attorney General and District Attorney ask this Court to
find that the State of Oklahoma has concurrent jurisdiction with the
federal and tribal governments where, as here, a non-Indian commits
a crime against Indian victims in Indian Country. The Attorney General
and the District Attorney suggest that various procedural defenses
should apply. The District Attorney also raises a separate claim,
arguing that this Court should alter its definition of Indian status, an
argument not raised by the Attorney General.
Blood Quantum
¶ 14 The District Attorney states that the District Judge avoided
the issue of blood quantum when making her findings and
conclusions.3 He now requests that this Court require a specific blood
quantum to meet the definition of Indian status to avoid a
“jurisdictional loophole”. In the Remand Order, and in the numerous
similar Orders in which we remanded other cases for consideration of
the jurisdictional question, this Court clearly set out the definition of
Indian it expected lower courts to use. We directed the District Court
The Judge did not avoid the issue. She refused to set a quantum amount as
requested by the District Attorney and followed this Court’s Remand Order
directing her to find “some” Indian blood under the definitions recognized by the
Tenth Circuit opinions referenced.
11
to “determine whether (1) the victims had some Indian blood, and (2)
were recognized as an Indian by a tribe or by the federal government.”
This test, often referred to as the Rogers4 test, is used in a majority of
jurisdictions, including in cases cited by the District Attorney.
¶15 In stating this test we cited two cases from the Tenth Circuit,
United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012); United
States v. Prentiss, 273 F.3d 1277, 1280-81 (10th Cir. 2001). The
references clearly state the test to be used in determining Indian
status. Prentiss discusses the history, wide acceptance, and
application of the Rogers test. The opinion notes that the first prong of
the test may be proved by a variety of evidence, which may include a
certificate of tribal enrollment which sets forth the person’s degree of
Indian blood, or a listing on a tribal roll which requires a certain degree
of Indian blood. Prentiss, 273 F.3d at 1282-83. Diaz states that the
Tenth Circuit uses a “totality-of-the-evidence approach,” which may
United States v. Rogers, 45 U.S. 567, 572-73 (1846).
In support of his claim that more than “some” Indian blood is required,
Respondent cites dicta in Goforth v. State, 1982 OK CR 48, ¶ 6, 644 P.2d 114, 116.
With almost a quarter blood quantum, the defendant easily met the requirement
of the first prong, and this Court did not further analyze that issue. However, in
referring to the two-part test, this Court in a 1982 decision, used the word
“significant” rather than “some.” Id. This single word, describing an issue not the
focus of the appeal, does not substitute for the entire body of state and federal
jurisprudence correctly stating the test.
12
include proof of blood quantum, but only if a particular tribe requires
it. Diaz, 679 F.3d at 1187.
¶16 The District Attorney correctly observes that a minority of
courts have chosen to impose a particular blood quantum, or to state
in individual cases whether a specific blood quantum meets the
threshold of “some blood.” The State of Oklahoma is within the
jurisdictional boundaries of the Tenth Circuit. If the jurisdictional test
is met and it is determined that a particular case must be prosecuted
in a federal district court, the Tenth Circuit definition will govern in
that court. There is simply no rhyme nor reason to require a test for
Indian status in our Oklahoma state courts that is significantly
different from that used in the comparable federal courts.6 Consistency
and economy of judicial resources compel us to adopt the same
definition as that used by the Tenth Circuit.7
6 Interestingly, the District Attorney argues instead that a “loophole” will exist if we
do not have the same standard as the Tenth Circuit.
‘ In addition, to require a
specific blood quantum would be out of step with other
recent developments. In 2018, Congress amended the Stigler Act. Enacted in 1947,
that Act was one of several Acts restricting the conveyance of lands that were
allotted to citizens of the Five Tribes, if the owner had one-half or more of Indian
blood. The restrictions on conveyance were designed to protect tribal citizens. As
time passed, requiring such a high blood quantum stripped those protections from
many owners and reduced the amount of restricted land. The recent amendment
struck this provision, replacing it with the phrase “
of whatever degree of Indian
blood.” Stigler Act Amendments of 2018, P.L. 115-399, Sec. 1(a). We will not
13
¶ 17 Without any foundation in law, the District Attorney
speculates that, without a precise blood quantum requirement, a
defendant might claim he is Indian in a state court — thus defeating
state court jurisdiction — and yet be found not Indian in federal court,
escaping criminal prosecution altogether. He cites no relevant or
persuasive law to support this speculation. The District Attorney relies
on a single case from the State of Washington, State v. Dennis, 840
P.2d 909 (Wash. App. 1992). Blood quantum was not an issue in that
case and is not mentioned in the opinion. The defendant, a member of
a Canadian tribe, was charged in state court with murdering his wife.
In state court, defendant successfully argued that he was an Indian
under the Major Crimes Act, Section 1153, and thus not subject to
State jurisdiction. Of course, the federal district court found otherwise,
since defendant was not a member of a federally recognized tribe. Id.,
840 P.2d at 910. The State never appealed the initial dismissal in state
district court. After federal charges were dismissed, the State of
Washington attempted to reinstate the charges. The Washington Court
of Appeals found that, given the State’s failure to appeal the initial state
disregard this clear statement of Congressional intent regarding a blood quantum
requirement for the Five Tribes.
14
court ruling, the State was precluded by statute from reinstating the
case. Id. at 910-11. The appellate court specifically noted that the
problem in this case was not the defendant’s claim, but that the trial
court made a mistake of law in concluding defendant was Indian under
the Major Crimes Act. Id. If anything, this case underscores the utility
and flexibility of the Rogers test, when correctly applied. It is clear that,
using that test, jurisdiction always lay with the State of Washington.
¶J 18 There simply is no jurisdictional loophole as described by
the District Attorney. To cure this nonexistent problem, the State
would have this Court adopt a test which is different from, and
potentially more restrictive than, the test used in our corresponding
federal system. This would be far more likely to result in the kind of
confusion the District Attorney warns against. Say this Court were to
adopt a particular blood quantum number. A defendant could be a
member of a federally recognized tribe, with Indian blood less than that
quantum. He would not be Indian in state court, and the State would
retain jurisdiction. However, when the convicted defendant filed a writ
of habeas corpus in federal court, because he had some Indian blood,
he would meet the Rogers test. The federal court would find that the
State had no jurisdiction, and the defendant should have been tried in
15
federal court to begin with —just like McGirt. Consistency and economy
of judicial resources compel us to adopt the same definition as that
used by the Tenth Circuit.
¶19 Furthermore, we find it inappropriate for this Court to be in
the business of deciding who is Indian. As sovereigns, tribes have the
authority to determine tribal citizenship. Plains Commerce Bank v.
Long Family Land & Cattle Co., 554 U.S. 316, 327 (2008); see also
United States u. Antelope, 430 U.s. 641, 646 (1977) (Indian status
determined by recognition by tribe acting as separate sovereign, not by
racial classification). Some tribes have a blood quantum requirement,
and some do not. Of those that do, the percentage differs among
individual tribes. If a person charged with a crime has some Indian
blood, and they are recognized as being an Indian by a tribe or the
federal government, this Court need not second-guess that recognition
based on an arbitrary mathematical formula. The District Court
correctly followed this Court’s instructions in the Order remanding this
case, determining that the victims had some Indian blood.
Procedural Defenses
¶20 Both the Attorney General and the District Court ask this
Court to consider this case barred for a variety of procedural reasons:
16
waiver under the successive capital post-conviction statute, 22
O.S.201 1, § 1089(D), and waiver of the jurisdictional challenge; failure
to meet the sixty-day filing deadline to raise a previously unavailable
legal or factual basis in subsequent post-conviction applications under
Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Title
22, Ch. 18, App. (2021); and the doctrine of laches. Through the
District Attorney, the State admits that this Court has resolved these
issues in this case in our Order remanding for an evidentiary hearing:
Under the particular facts and circumstances of this case,
and based on the pleadings in this case before the Court,
we find that Petitioner’s claim is properly before this court.
The issue could not have been previously presented
because the legal basis for the claim was unavailable. 22
O.S. § 1089(D)(8)(a), 1089(D)(9)(a); McGirt v. Oklahoma,
140 S.Ct. 2452 (2020).
Bosse v. State, PCD-2019-124, Order Remanding for Evidentiary
Hearing at 2 (Okl.Cr. Aug. 12, 2020). The State asks us to reconsider
this determination, but offers no compelling arguments in support.8
8 The State argues both that application of McGirt will have significant
consequences for criminal prosecutions, and that waiver should apply because
there is really nothing new about the claim. Taken as a whole, the arguments
advanced by the State in both its Response and Supplemental Brief support a
conclusion that, although similar claims may have been raised in the past in other
cases, the primacy of State jurisdiction was considered settled and those claims
had not been expected to prevail. The legal basis for this claim was unavailable
under Section 1089(D).
17
¶21 It is settled law that “[sjubject-matter jurisdiction can never
be waived or forfeited.” Gonzalez v. Thaler, 565 U.S. 134, 141(2012).
The District Attorney admits that generally litigants “cannot waive the
argument that the district court lacks subject-matter jurisdiction,”
citing United States v. Green, 886 F.3d 1300, 1304 (10th Cir. 2018); see
also United States v. Garcia, 936 F.3d 1128, 1140-41 (10th Cir. 2019)
(parties can neither waive subject-matter jurisdiction nor consent to
trial in a court without jurisdiction). This Court has repeatedly held
that the limitations of post-conviction or subsequent post-conviction
statutes do not apply to claims of lack ofjurisdiction. Wackerly v. State,
2010 OK CR 16, ¶ 4, 237 P.3d 795, 797; Wallace v. State, 1997 OK CR
18, ¶ 15, 935 P.2d 366, 372; see also Murphy v. State, 2005 OK CR 25,
¶J 5-7, 124 P.3d 1198, 1200 (recognizing limited scope of postconviction
review, then addressing newly raised jurisdictional claim on
the merits). In Wackerly, we also held the time limit on newly raised
issues in Rule 9.7 did not apply to jurisdictional questions. Wackerly,
2010 OK CR 16, ¶ 4, 237 P.3d at 797•9
The principle that subject-matter jurisdiction may not be waived also settles the
State’s argument based on laches — that Petitioner waited too long to raise his
claim, and the passage of time makes resolution of the issue, or a grant of relief,
difficult to determine or implement. None of the cases on which the State relies
concern a claim of lack of jurisdiction.
18
¶22 McGirt provides a previously unavailable legal basis for this
claim. Subject-matter jurisdiction may — indeed, must — be raised at
any time. No procedural bar applies, and this issue is properly before
us. 22 O.S. § 1089(D)(8)(a), 1089(D)(9)(a).
There is no concurrent jurisdiction.
¶23 The General Crimes Act and the Major Crimes Act give
federal courts jurisdiction over crimes committed by or against
Indians in Indian Country. 18 U.S.C. § 1152, 1153. Congress
provides that crimes committed in certain locations or under some
specific circumstances are within the sole and exclusive jurisdiction
of the United States. Section 1152, the General Crimes Act, brings
crimes committed in Indian Country within that jurisdiction, unless
they lie within the jurisdiction of tribal courts or jurisdiction is
otherwise expressly provided by federal law. 18 U.S.C. § 1152; see
also 18 U.S.C. § 1153 (Major Crimes Act). This gives federal courts
jurisdiction over Indians and non-Indians who commit crimes
against Indians in Indian Country. By explicitly noting that it may
expressly provide otherwise, Congress has preempted jurisdiction
over these crimes in state courts. Indeed, this Court has held that
federal law preempts state jurisdiction over crimes committed by or
19
against an Indian in Indian Country. Cravatt v. State, 1992 OK CR 6,
¶ 20, 825 P.2d 277, 280. State courts retain jurisdiction over non
Indians who commit crimes against non-Indians in Indian Country.
Id.; Solern, 463 U.S. at 465 n.2; Williams v. United States, 327 U.S.
711, 714 & n.10 (1946).
¶24 The State argues that, despite the clear language of both
statute and case law, federal and state courts have concurrent
jurisdiction over non-Indians under the General Crimes Act. The law
does not support this argument. The Attorney General relies in part
on United States v. McBratney, 104 U.S. 621 (1881) to support his
argument. However, in McBratney, a non-Indian murdered another
non-Indian within the boundaries of the Ute Reservation. The
Supreme Court held that the federal government had no jurisdiction
to prosecute a crime committed in Indian Country where neither the
perpetrator nor the victim were Indian. Id., 104 U.S. at 624. Nothing
in that opinion supports a conclusion that, where federal jurisdiction
exists by statute, states have concurrent jurisdiction as well. And the
Supreme Court itself later refuted any such interpretation. In
Donnelly v. United States, the Court held that McBratney did not
apply to “offenses committed by or against Indians,” which were
20
subject to federal jurisdiction. Donnelly, 228 U.S. 243, 271-72 (1913).
In the context of federal criminal jurisprudence and Indian Country,
Donnelly reaffirmed Congress’s preemption of state jurisdiction over
crimes by or against Indians.’0 More recently, the Court has noted
that where federal jurisdiction lies under Section 1153, it preempts
state jurisdiction. United States v. John, 437 U.S. 634, 651 (1978);
see also Goforth v. State, 1982 OK CR 48, ¶ 5, 644 P.2d 114, 115-16
(federal jurisdiction under § 1152, 1153 preempts state jurisdiction
except as to crimes among non-Indians).
¶25 The General Crimes Act provides that federal jurisdiction
may be changed by law. 18 U.S.C. § 1152. And Congress has done
so, giving the State of Kansas criminal jurisdiction on Indian
reservations in that state. The Kansas Act conferred jurisdiction on
Kansas courts for offenses of state law committed by or against
Indians on reservations in Kansas. 18 U.S.C. § 3243. The Supreme
Respondent also misunderstands the discussion in Ex parte Wilson, 140 U.s.
575 (1891). There, the defendant and victim were non-Indian. The defendant
argued that the federal government could not retain jurisdiction over crimes
committed by and against Indians while allowing state jurisdiction over crimes
involving non-Indians committed on a reservation; he claimed that either the
federal government had sole and exclusive jurisdiction over every crime, or it had
none at all. Id. at 577. The Court rejected this argument, noting that Congress had
the power to grant and limit jurisdiction in federal courts. Id. at 578.
21
Court determined that this Act confers concurrent jurisdiction on
State courts only to the extent that the State of Kansas may
prosecute people for state law offenses that are also punishable as
offenses under federal law; otherwise, the jurisdiction to prosecute
federal crimes committed on Kansas reservations lies with the federal
government. Negonsott v. Samuels, 507 U.S. 99, 105-106 (1993).
¶26 Congress also created the opportunity for six specific states
to exercise jurisdiction over crimes committed in Indian Country by
enacting Public Law 280. Act of Aug. 15, 1953, Pub. L. No. 67, Stat.
588, codified at 18 U.S.C. § 1162, 25 U.S.C. § 1321-26; 18 U.S.C. §
1162(a). In a separate provision, P.L. 280 created a framework for
other states to assume jurisdiction over crimes committed in Indian
Country, with the consent of the affected tribe; the state and the
federal government may have concurrent jurisdiction if the affected
tribe requests it and with the consent of the Attorney General. 25
U.S.C. § 1321(a). Oklahoma has not exercised the options for
criminal jurisdiction afforded by P.L. 280. Cravatt, ¶ 15, 825 P.2d at
279.
¶27 The Kansas Act and P.L. 280 would have been unnecessary
if, as the State argues, state and federal governments already have
22
concurrent jurisdiction over non-lndians who commit crimes in
indian Country. Rather, these Acts are examples of how Congress
may implement the provision in Section 1152, allowing for an
exception to federal jurisdiction. Congress has written no law
similarly conferring jurisdiction on Oklahoma courts, or otherwise
modifying the statutory provisions granting jurisdiction for
prosecution of crimes in Indian Country to federal courts in
Oklahoma. Respondent does not suggest it has.
¶28 Absent any law, compact, or treaty allowing for jurisdiction
in state, federal or tribal courts, federal and tribal governments have
jurisdiction over crimes committed by or against Indians in Indian
Country, and state jurisdiction over those crimes is preempted by
federal law. The State of Oklahoma does not have concurrent
jurisdiction to prosecute Petitioner.
Conclusion
¶29 Petitioner’s victims were Indian, and this crime was
committed in Indian Country. The federal government, not the State of
Oklahoma, has jurisdiction to prosecute Petitioner. Proposition I is
granted. Propositions II and III are moot.
23
DECISION
¶30 The Judgment and Sentence of the District Court of McClain
County is REVERSED and the case is REMANDED with instructions to
DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is
STAYED for twenty (20) days from the delivery and filing of this
decision.
OPINION BY KUEHN, P.J.
ROWLAND, V.P.J.:
LUMPKIN, J.:
LEWIS, J.:
HUDSON, J.:
CONCUR IN RESULTS
CONCUR IN RESULTS
SPECIALLY CONCUR
CONCUR IN RESULTS
25
ROWLAND, VICE PRESIDING JUDGE, CONCURRING IN RESULTS:
¶1 I concur in the result of the majority opinion, but write
separately to relate my views on two of the issues discussed therein,
namely the test for Indian status and the use of the term subject
matter jurisdiction.
A. The Test for Indian Status
¶2 My first objection with the majority opinion is its dismissal
of the thought that this Court should decide who is Indian. Making a
finding on the defendant’s Indian status is precisely what we must
do in order to determine whether the State of Oklahoma has
jurisdiction since federal jurisdiction applies only to Indians. One
question before us is what test we should employ to decide this
particular component of Bosse’s claim. In that regard, I agree fully
with the majority that our test for Indian status must be identical to
that used by the United States Court of Appeals for the Tenth Circuit.
¶3 The Major Crimes Act is pre-emptive of state criminal
jurisdiction “when it applies....” United States v. John, 437 U.S. 634,
651 (1978) (emphasis added). If the Indian Country Crimes Act or
Major Crimes Act do not apply, then the State of Oklahoma, as a
sovereign with general police powers, has obvious authority to
prosecute and punish crimes within its borders. Adopting a test
different from that used by federal courts risks this Court dismissing
a case where the crime was committed in Indian country on the basis
that a defendant is Indian and the federal court, under a different
test, determining the defendant is not Indian and thus there is no
federal jurisdiction.’ That is the type of jurisdictional void this Court
warned of in Goforth v. State, 1982 OK CR 48, 644 P.2d 114, where
we interpreted Article 1, Section 3 of the Oklahoma Constitution to
disclaim jurisdiction over Indian lands only when federal jurisdiction
is apparent. “[W]here federal law does not purport to confer
jurisdiction on the United States courts, the Oklahoma Constitution
does not deprive Oklahoma courts from obtaining jurisdiction over
the matter.” Id. 1982 OK CR 48, ¶ 8, 644 P.2d at 116.
B. Subject Matter Jurisdiction
¶4 The other portion of today’s majority opinion with which I
do not agree is that the federal criminal statutes involved here deprive
Oklahoma courts of subject matter jurisdiction. “Subject matter
jurisdiction defines the court’s authority to hear a given type of case.”
1 Because, as explained later in this writing, I do not think subject matter
jurisdiction is implicated, I see no reason the State could not refile its charges in
such an instance, but that is, of course, not before the Court at this time.
2
Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). Our
cases recognize three components to jurisdiction: “(1) jurisdiction
over the subject matter—the subject matter in this connection was
the criminal offense of murder, (2) jurisdiction over the person, and
(3) the authority under law to pronounce the particular judgment and
sentence herein rendered.” Petition of Dare, 1962 OK CR 35, ¶ 5, 370
P.2d 846, 850—51. Like Dare, the subject matter in this case is a
murder prosecution. The subject matter jurisdiction of Oklahoma
courts is established by Article 7 of our State Constitution and Title
20 of our statutes which grant general jurisdiction, including over
murder cases, to our district trial courts. Basic rules of federalism
dictate that Congress has no power to expand or diminish that
jurisdiction except where Congress has created a federal cause of
action and allowed state courts to assume jurisdiction. See Simurd v.
Resolution Tr. Corp., 639 A.2d 540, 545 (D.C. 1994) (noting
presumption of concurrent jurisdiction among federal and state
courts is rebutted only by a clear expression by Congress vesting
federal courts with exclusive jurisdiction). Were it otherwise,
Congress could legislatively tinker with the authority of state courts
to hear all type of state crimes or civil causes of action.
3
¶5 What Congress can do and has done is exercise its own
territorial jurisdiction over Indians in Indian Country by virtue of its
plenary power to regulate affairs with Indian tribes. “Congress
possesses plenary power over Indian affairs, including the power to
modify or eliminate tribal rights.” South Dakota v. Yankton Sioux
Tribe, 522 U.S. 329, 343 (1998). Federal criminal authority over socalled
“federal enclaves” is found at 18 U.S.C. § 7, which begins with
the words, “The term ‘special maritime and territorial jurisdiction
of the United States’, as used in this title, includes....” (emphasis
added). The Indian Country Crimes Act, 18 U.S.C. § 1152, with
exceptions, “extends the general criminal laws of federal maritime
and enclave jurisdiction to Indian country....” Negonsott v. Samuels,
507 U.S. 99, 102 (1993). Thus aplain reading of Negonsottin tandem
with Section 7 makes clear that it is territorial jurisdiction, not
subject matter jurisdiction, which is at issue. See also United States
v. Smith, 925 F.3d 410, 415 (9th Cir.), cert. denied, 140 S.Ct. 407
(2019) (finding Indian Country is a federal enclave for purposes of 18
U.S.C. § 7). This is likely why none of the cases cited in the majority
opinion hold that the state lacks subject matter jurisdiction over
crimes by or against Indians in Indian Country. In United States v.
4
Langford, 641 F.3d 1195, 1197 n.1 (10th Cir. 2011), the Tenth
Circuit stated explicitly that the federal jurisdiction under these
statutes is not subject matter jurisdiction:
When we speak of jurisdiction, we mean sovereign
authority, not subject matter jurisdiction. Cf Prentiss,
256 F.3d at 982 (disclaiming the application of subject
matter jurisdiction analysis to cases involving an inquiry
under the ICCA). This is consistent with use of the term in
United States v. McBratney, 104 U.S. 621, 623—4, 26 L.Ed.
869 (1881).
(Emphasis added).
¶6 This is an important distinction, because as the majority
makes clear, the lack of subject matter jurisdiction cannot be waived
or forfeited and may be raised at any point in the litigation.
Conversely, territorial jurisdiction may be subject to waiver. See
Application of Poston, 1955 OK CR 39, ¶ 35, 281 P.2d 776, 785
(request for relief on ground that district court did not have territorial
jurisdiction was denied; claim was deemed waived because it was not
raised below). See also State v. Randle, 2002 WI App 116, ¶ 14, 252
Wis. 2d 743, 751, 647 N.W.2d 324, 329 (concluding territorial
jurisdiction subject to waiver in some instances); Porter u.
Commonwealth, 276 Va. 203, 229, 661 S.E.2d 415, 427 (Va.2008)
(territorial jurisdiction is waived if not properly and timely raised); In
5
re Teagan K.-O., 335 Conn. 745, 765 n. 22, 242 A.3d 59, 73 n. 22
(Conn.2020) (territorial jurisdiction may be subject to waiver). But
see State v. Dudley, 364 S.C. 578, 582, 614 S.E.2d 623, 625-26
(2005) (“Although territorial jurisdiction is not a component of
subject matter jurisdiction, we hold that it is a fundamental issue
that may be raised by a party or by a court at any point in the
proceeding.... The exercise of extraterritorial jurisdiction implicates
the state’s sovereignty, a question so elemental that we hold it cannot
be waived by conduct or by consent.” (Citation and footnote
omitted.)).
¶7 Characterizing Sections 1152 and 1153 as implicating
subject matter jurisdiction would allow a defendant, knowing he is
Indian and that his crimes fall within the Major Crimes Act, to forum
shop, by rolling the dice at a state trial and then wiping that slate
clean if he receives an unsatisfactory verdict by asserting his Indian
status. Viewing it as territorial jurisdiction avoids this absurdity, and
would allow the possibility that procedural bars, laches, etc. might
preclude some McGirt claims.2
2 The McGii-t opinion tacitly acknowledges potential procedural bars, noting the
State of Oklahoma had “put aside whatever procedural defenses it might have.”
6
¶8 In this case, however, I agree with the majority that our
earlier ruling in our Remand Order—that Bosse timely met the
requirements for raising a claim based on new law under the Capital
Post-Conviction Act—resolved any claim that Bosse is procedurally
barred from asserting this claim on post-conviction. Accordingly, I
concur in the result.
McGirt, 140 S.Ct. at 2460. Those defenses would not be relevant if subject matter
jurisdiction, which is non-waivable, were concerned.
7
LUMPKIN, JUDGE: CONCURRING IN RESULTS:
¶1 Bound by my oath and the Federal-State relationships
dictated by the U.S. Constitution, I must at a minimum concur in the
results of this opinion. While our nation’s judicial structure requires
me to apply the majority opinion in the 5-4 decision of the U.S.
Supreme Court in McGirt v. Oklahoma, — U.S. ,
140 S. Ct. 2452
(2020), I do so reluctantly. Upon the first reading of the majority
opinion in McGirt I initially formed the belief that it was a result in
search of an opinion to support it. Then upon reading the dissents
by Chief Justice Roberts and Justice Thomas I was forced to conclude
the Majority had totally failed to follow the Court’s own precedents,
but had cherry picked statutes and treaties, without giving historical
context to them. The Majority then proceeded to do what an average
L
citizen who had been fully informed of the law and facts as set out in
the dissents would view as an exercise of raw judicial power to reach
a decision which contravened not only the history leading to the
disestablishment of the Indian reservations in Oklahoma, but also
willfully disregarded and failed to apply the Court’s own precedents
to the issue at hand.
¶2 My quandary is one of ethics and morality. One of the first
things I was taught when I began my service in the Marine Corps was
that I had a duty to follow lawful orders, and that same duty required
me to resist unlawful orders. Chief Justice Roberts’ scholarly and
judicially penned dissent, actually following the Court’s precedents
and required analysis, vividly reveals the failure of the majority
opinion to follow the rule of law and apply over a century of precedent
and history, and to accept the fact that no Indian reservations remain
in the State of Oklahoma.1 The result seems to be some form of “social
1 Senator Elmer Thomas, D—Oklahoma, was a
member of the Senate
Committee on Indian Affairs. After hearing the Commissioner’s speech
regarding the Indian Reorganization Act (IRA) in 1934, Senator Thomas
opined as follows:
I can hardly see where it (the IRA) could operate in a State like
mine where the Indians are all scattered out among the whites
and they have no reservation, and they could not get them
into a community without you would go and buy land and put
them on it. Then they would be surrounded very likely with
thickly populated white section with whom they would trade
and associate. I just cannot get through my mind how this bill
can possibly be made to operate in a State of thickly-settled
population. (emphasis added).
John Collier, Commissioner of Indian Affairs, Memorandum of Explanation
(regarding S. 2755), p. 145, hearing before the United States Senate
Committee on Indian Affairs, February 27, 1934. Senator Morris
Sheppard, D-Texas, also on the Senate Committee on Indian Affairs, stated
in response to the Commissioner’s speech that in Oklahoma, he did not
think “we could look forward to building up huge reservations such as we
have granted to the Indians in the past.” Id. at 157. In 1940, in the
Foreword to Felix S. Cohen, Handbook of Federal Indian Law (1942),
Secretary of the Interior Harold Ickes wrote in support of the IRA, “[t]he
justice” created out of whole cloth rather than a continuation of the
solid precedents the Court has established over the last 100 years or
more.
¶3 The question I see presented is should I blindly follow and
apply the majority opinion or do I join with Chief Justice Roberts and
the dissenters in McGirt and recognize “the emperor has no clothes”
as to the adherence to following the rule of law in the application of
the McGirt decision?
¶4 My oath and adherence to the Federal-State relationship
under the U.S. Constitution mandate that I fulfill my duties and
apply the edict of the majority opinion in McGirt. However, I am not
required to do so blindly and without noting the flaws of the opinion
as set out in the dissents. Chief Justice Roberts and Justice Thomas
eloquently show the Majority’s mischaracterization of Congress’s
actions and history with the Indian reservations. Their dissents
further demonstrate that at the time of Oklahoma Statehood in 1907,
all parties accepted the fact that Indian reservations in the state had
continued application of the allotment laws, under which Indian wards
have lost more than two-thirds of their reservation lands, while the
costs of Federal administration of these lands have steadily mounted,
must be terminated.” (emphasis added).
been disestablished and no longer existed. I
take this position to
adhere to my oath as a judge and lawyer without any disrespect to
our Federal-State structure. I
simply believe that when reasonable
minds differ they must both be reviewing the totality of the law and
facts.
LEWIS, JUDGE, CONCURRING IN RESULTS:
¶1 I
write separately to address the notion that McGirt v.
Oklahoma, 140 S.Ct. 2452 (2020), addresses something less than
subject matter jurisdiction over an Indian who commits a crime in
Indian Country or over any person who commits a crime against an
Indian in Indian Country. McGirt, of course, serves as the latest
waypoint for our discussion on the treatment of criminal cases
arising within the historic boundaries of Indian reservations which
were granted by the United States Government many years ago.
McGirt, 140 S.Ct. at 2460, 2480. The main issue in McGirt was
whether those reservations were disestablished by legislative action
at any point after being granted.
¶2 McGirt deals specifically, and exclusively, with the
boundaries of the reservation granted to the Muscogee (Creek)
Nation. McGirt, 140 S.Ct. at 2459, 2479. However, the other Indian
Nations comprising the Five Civilized Tribes have historical treaties
with language indistinct from the treaty between the Muscogee
(Creek) Nation and the federal government. Therefore, this case
involving a crime occurring within the historical boundaries of the
Cherokee Nation Reservation must be analyzed in the same manner
as the boundaries of the Muscogee (Creek) Nation Reservation. The
District Court below conducted a thorough analysis and concluded
that the reservation was not disestablished. I
agree with this
conclusion.’
¶3 McGirt was also clear that if the reservation was not
disestablished by the U.S. Congress, Oklahoma has no right to
prosecute Indians for crimes committed within the historical
boundaries of the Indian reservation. McGirt, 140 S.Ct. at 2460.
Therefore, because the Cherokee Nation Reservation was not
disestablished, the State of Oklahoma has no authority to prosecute
Indians for crimes committed within the boundaries of the Cherokee
Nation Reservation as was the case here, nor does Oklahoma have
jurisdiction over any person who commits a crime against an Indian
within the boundaries of the Cherokee Nation Reservation. The
1 The Opinion indicates that there is some “legal void” because the State
acquiesced to the District Court’s findings, thus we are limited to review for
abuse of discretion. Where there is arbitrary or unreasonable action by a District
Court, this Court has the power to intervene. We cannot because there simply is
no evidence that Congress disestablished the Chickasaw Nation Reservation by
clearly expressed intent as required by McGirt. McGirt, 140 S.Ct. at 2463; see
Nebraska tj’. Parker, 136 S.Ct. 1072, 1079 (2016).
2
federal government has exclusive jurisdiction over those cases. 18
U.S.C. 1153(a).
¶4 A
lack of subject matter jurisdiction leaves a court without
authority to adjudicate a matter. This Court has held that subject
matter jurisdiction cannot be conferred by consent, nor can it be
waived, and it may be raised at any time. Armstrong v. State, 1926
OK CR 259, 248 P. 877, 878; Cravatt v. State, 1992 OK CR 6, ¶ 7,
825 P.2d 277, 280; Magnan v. State, 2009 OK CR 16, ¶J 9 &
12, 207
P.3d 397, 402 (holding that jurisdiction over major crimes in Indian
Country is exclusively federal).
¶5 Because the issue in this case is one of subject matter
jurisdiction, I
concur that this case must be reversed and remanded
with instructions to dismiss.
3
HUDSON, J., CONCURRING IN RESULTS:
¶1 Today’s decision applies McGirt v. Oklahoma, 140 S. Ct.
2452 (2020) to the facts of this case. I concur in the result of the
majority’s opinion based on the stipulations below concerning the
victims’ Indian status and the location of these crimes within the
historic boundaries of the Chickasaw Reservation. Under McGirt, the
State cannot prosecute Petitioner because of the Indian status of the
victims and the location of this crime within Indian Country as
defined by federal law. I therefore as a matter of stare decisis fully
concur in today’s decision.
¶2 I disagree, however, with the majority’s adoption as binding
precedent of the District Court’s finding that Congress never
disestablished the Chickasaw Reservation. Here, the State took no
position below on whether the Chickasaw Nation has, or had, a
reservation. The State’s tactic of passivity has created a legal void in
this Court’s ability to adjudicate properly the facts underlying
Petitioner’s argument. This Court is left with only the trial court’s
conclusions of law to review for an abuse of discretion. We should
find no abuse of discretion based on the record evidence presented.
1
But we should not establish as binding precedent that the Chickasaw
Nation was never disestablished based on this record.
¶3 I also fully join Judge Rowland’s special writing concerning
the test for Indian status and the use of the term subject matter
jurisdiction.
¶4 Finally, I write separately to note that McGirt resurrects an
odd sort of Indian reservation. One where a vast network of cities
and towns dominate the regional economy and provide modern
cultural, social, educational and employment opportunities for all
people on the reservation. Where the landscape is blanketed by
modern roads and highways. Where non-Indians own property (lots
of it), run businesses and make up the vast majority of inhabitants.
On its face, this reservation looks like any other slice of the American
heartland—one dotted with large urban centers, small rural towns
and suburbs all linked by a modern infrastructure that connects its
inhabitants, regardless of race (or creed), and drives a surprisingly
diverse economy. This is an impressive place—a modern marvel in
some ways—where Indians and non-Indians have lived and worked
together since at least statehood, over a century.
2
¶5 McGirt orders us to forget all of that and instead focus on
whether Congress expressly disestablished the reservation. We are
told this is a cut-and-dried legal matter. One resolved by reference
to treaties made with the Five Civilized Tribes dating back to the
nineteenth century. Ignore that Oklahoma has continuously
asserted jurisdiction over this land since statehood, let alone the
modern demographics of the area.
¶6 The immediate effect under federal law is to prevent state
courts from exercising criminal jurisdiction over a large swath of
Greater Tulsa and much of eastern Oklahoma. Yet the effects of
McGirt range much further. The present case illuminates some of
that decision’s consequences. Crime victims and their family
members in this and a myriad of other cases previously prosecuted
by the State can look forward to a do-over in federal court of the
criminal proceedings where McGirt applies. And they are the lucky
ones. Some cases may not be prosecuted at all by federal authorities
because of issues with the statute of limitations, the loss of evidence,
missing witnesses or simply the passage of time. All of this
foreshadows a hugely destabilizing force to public safety in eastern
Oklahoma.
3
¶7 McGirt must seem like a cruel joke for those victims and
their family members who are forced to endure such extreme
consequences in their case. One can certainly be forgiven for having
difficulty seeing where—or even when—the reservation begins and
ends in this new legal landscape. Today’s decision on its face does
little to vindicate tribal sovereignty and even less to persuade that a
reservation in name only is necessary for anybody’s well-being. The
latter point has become painfully obvious from the growing number
of cases like this one that come before this Court where non-Indian
defendants are challenging their state convictions using McGirt
because their victims were Indian.
¶8 Congress may have the final say on McGirt. In McGirt, the
court recognized that Congress has the authority to take corrective
action, up to and including disestablishment of the reservation. We
shall see if any practical solution is reached as one is surely needed.
In the meantime, cases like Petitioner’s remain in limbo until federal
authorities can work them out. Crime victims and their families are
left to run the gauntlet of the criminal justice system once again, this
time in federal court. And the clock is running on whether the federal
4
system can keep up with the large volume of new cases undoubtedly
heading their way from state court.
5

Outcome: ¶30 The Judgment and Sentence of the District Court of McClain
County is REVERSED and the case is REMANDED with instructions to
DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of
Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is
STAYED for twenty (20) days from the delivery and filing of this
decision.

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