Tulsa Attorney BlogState Appeals Bosse Case to United States Supreme Court

Chickasaw Historic Boundaries of the Reservation Were Never Disestablished

Video Transcribed: If Oklahoma appeals the Bosse case to the United States Supreme Court. I’m an attorney in Indian country, James Wirth and we’re talking about more the repercussions from the McGirt decision and specifically the Bosse case.

And the Bosse case was decided not too long ago, a few weeks back and it had a few big decisions in it. So first off it expanded the McGirt precedent to the Chickasaw Nation. Essentially, what that means is that it found that the Chickasaw historic boundaries of the reservation were never disestablished. All of that territory that was originally part of that reservation is still Indian country.

In an Indian country, pursuant to other laws already in place, we know that the state of Oklahoma lacks jurisdiction to charge Indians with crimes or non-Indians with crimes committed against Indians. So that’s one of the precedents that come out of the Bosse case, but that one’s not too big of a deal for the state of Oklahoma and for the attorney general and prosecutors.

The next two are what’s more problem some for them. Okay. So next, it deals with specifically Indian victims. In this case, Bosse, not native American, his victims are native American, so it applies it. And it’s one of the first cases decided before the Oklahoma court of criminal appeals that applies, or it has applied McGirt to where we have Indian victims.

But that’s not that big of a deal either to the state. They’re not fighting it so hard because of that. It’s this third reason why they’re fighting so hard and that is that there … the state is trying to raise procedural defenses. The Bosse case is not a brand new case. It was a state case filed in 2010 and there was a conviction in it and he’s been in jail for an extended period of time. So the state of Oklahoma is not wanting McGirt to apply to these old cases.

And they’re using technicalities and procedural defenses saying that this issue raised in McGirt that the court lacked jurisdiction, was waived because they didn’t bring it up at trial, or is waived because they didn’t bring it up on their direct appeal, or in this case, it’s waived because they didn’t bring it up on their first filing for post-conviction relief. They only brought it up on their second. Also, they’re saying that maybe the equitable doctrine of laches applies.

It’s been so long that it’s too late for them to bring it up now. So, the Oklahoma Court of Criminal Appeals found, I believe appropriately, that this is an instance of subject matter jurisdiction that the Oklahoma court doesn’t have subject matter jurisdiction. It’s preempted by federal law from being prevented from exercising subject matter jurisdiction.

In subject matter jurisdiction, unlike personal jurisdiction and other jurisdiction arguments can never be waived, because it’s so fundamental to the power of the court. So that wrong can be righted at any time and because of that, the court in Bosse decided that none of those procedural defenses are going to work. You can never waive subject matter jurisdiction. It can be brought up at any time.

It can be attacked collaterally and in fact, it’s up to the court. The court has a duty to ensure it has subject matter jurisdiction. So, that conviction then was overturned, vacated, case dismissed by the appellate court. And the state then filed a request for rehearing, even though Oklahoma law says, in a post-conviction relief case, you cannot have a rehearing. They filed that request anyway, the court denied that.

Then they filed a request for an emergency stay of the mandate in the case because they said they were going to appeal to United States Supreme Court. And they wanted the mandate stayed while they’re appealing to United States Supreme Court.

The Oklahoma Court of Criminal Appeals denied that request but did stay the mandate, for 45 days until May 30th of 2021, when that mandate will be filed. So even though that stay was denied, what the news is today is that they did follow through and the state of Oklahoma has filed a request for cert with The United States Supreme court requesting that it review the decision by the Oklahoma court of criminal appeals.

The United States Supreme Court has requested that Bosse and his legal team filed a response to that by Friday, that’s next Friday, May 7th. And then this is moving forward and we’ll see what the court does at that point.

But this is just an update to let you know that the state of Oklahoma did file for cert with the United States Supreme Court. The United States Supreme court then has to decide whether they’ll accept the case or not. And if they do accept it, what their decision will be, but that is not going to stay the mandate in Bosse, that Bosse, even though the mandate is not issued, is still published precedent.

And then, in fact, that precedent is being used by the Oklahoma Court of Criminal Appeals itself in deciding other cases. It has decided subsequent cases to that, with the same findings based on Bosse. So things are moving forward, even though the state is requesting an appeal be granted or accepted by the United States Supreme Court.

If you have questions about Bosse and how it applies to your case or other legal question, you’re going to need to talk to an attorney specifically about your circumstances. Don’t rely on the general information in these videos. Talk to a McGirt attorney. If you want to get that scheduled with somebody at my office, you can go online to makelaweasy.com.

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