United States Supreme Court Expanded Tribal Land
And then on April 15th, oral arguments were had, the State of Oklahoma was noting that they’re going to appeal the Bosse decision to the United States Supreme Court. And that’s a process that takes a lot of time.
And generally speaking, the decision of the Oklahoma Court of Criminal Appeals would not have stayed while waiting to hear what the United States Supreme Court has to say, because the vast majority of cases that make an appeal to the United States Supreme Court aren’t even heard, they get denied.
And the ones that even move forward, a small, tiny percentage get heard from the United States Supreme Court, and then a smaller percentage of that are ones that are actually reversed based on the decision from the United States Supreme Court, particularly when the court just heard McGirt and has addressed a lot of these issues.
So after that oral argument hearing on April 15th, the court has made a ruling. And what it said was that it’s not going to stay the mandate until the appeal is heard by the United States Supreme Court, but it did delay the issuing.
And the court said that we’re going to delay the issuing of the mandate for 45 days or until May 30th of 2021 and then it’s automatically going to be entered on that date. So we don’t anticipate there’s going to be any further delays.
The Oklahoma Court of Criminal Appeals specifically decided that they are not going to wait for the United States Supreme Court to decide on this issue that the mandate’s going to be issued regardless on May 30th of 2021. The judges on the Oklahoma Court of Criminal Appeals were not unanimous on that. There was a concurring opinion that essentially indicated that they would have stayed the mandate until the appeal was done, but that was not done.
So why is Bosse getting all this attention? We’ve got the Hagner case where mandate has issued and that expanded it to the Cherokee Nation. We’ve got it expanded to the Seminole Nation in a separate case and the Choctaw Nation in a separate case, finding that all of those reservation boundaries, the original boundaries have not been disestablished. So why is Bosse getting all this attention? Well, it has nothing to do with the fact that it expands into the Chickasaw Nation.
I think most prosecutors, most people arguing on behalf of the State of Oklahoma acknowledged that that’s a done deal. Nothing’s going to happen with that. But what’s unique about Bosse is, Bosse is the case that overruled all of the procedural bars that the State of Oklahoma was hoping to win on because those procedural bars could be used in the older cases that are more likely to have a statute of limitations that have passed.
So it was important to them because of that and that’s why they’re fighting it so hard. So the procedural bars are essentially that, will you waive this issue? Well, yeah, the court didn’t have jurisdiction, but you waived it because you did not address this on your direct appeal.
Or you didn’t address this in your first petition for post-conviction relief, so it’s waived and you can’t do it in successive petitions for post-conviction relief or the doctrine of latches, which is essential, this is something you should have brought to our attention years ago.
This is a conviction from 20 years ago, you had 20 years to bring this up. It’s simply too long, too much time has passed. All of these procedural bars are important to the State because they want to prevent this McGirt from being expanded.
It’s less of a problem for current cases to be dismissed because it’s easy for those to be re-prosecuted in federal court or state court. For cases that are 20 years old, passed the statute of limitations, or where witnesses’ memory has faded, it’s way more difficult to re-prosecute those. And that’s where they’re concerned about people that are potentially dangerous being released. So that’s why they’re fighting it so hard. It’s such a big deal, but the Oklahoma court of criminal appeals is a very conservative venue.
If they could have found a way to get around this, they probably would have, but it’s pretty central to law that subject matter jurisdiction is just so fundamental it cannot be waived. I mean, essentially what we would say there if it can’t be waived and applied, it would be like if that court has no jurisdiction, it’s just no different than somebody on the street kidnapping them and then putting them on trial, a very good trail with lots of due processes, but it’s still a completely unlawful trial.
And then they imprisoned them and they held them in jail and then 20 years went by and the person that kidnapped them in the first place and had this trial and never had the legal authority to do so, their defense says, “Well, yeah, I’m holding them up in my backyard, but I’ve been doing it for 20 years, so I should get a pass on this because it’s been so long.” That’s just not going to cut it for subject matter jurisdiction.
If they never had the authority to do it in the first place, it’s never too late to raise it. We’ve got to fix that error at any time once we know about that error. So because this is decided as a subject matter jurisdiction issue, Bosse’s likely to stay just the way it is. And let’s not forget, even though the mandate has not issued, it is a published case with precedent. It has been published by the Oklahoma Court of Criminal Appeals and the mandate specifically addresses Bosse the defendant.
It does not address the precedent of the decision that is published although the State of Oklahoma is arguing that it should and delaying cases that are addressing these procedural bars. So that’s what’s going on. The mandate is going to be issued May 30th, although there have been two prior delays in the mandate, I’m not expecting that there’ll be further delays. The Oklahoma Court of Criminal Appeals has decided that these procedural bars that the State is trying to bring up are just not going to work because this is a subject matter jurisdiction issue.
And it’s unlikely that the State’s going to prevail on that with the United States Supreme Court. If you’ve got questions, how this may apply to your circumstances, you’re going to want to talk to an attorney specifically, confidentially about that. To get that scheduled with somebody at my office you can go online to makelaweasy.com.
