On May 26th, the United States Supreme Court stayed an Oklahoma Court of Criminal Appeals (CCA) decision reversing the conviction of Oklahoma death row prisoner Shaun Bosse.
In reversing Bosse’s conviction, the Oklahoma CCA relied on last year’s Supreme Court decision in McGirt v. Oklahoma, which found that a large swath of Oklahoma had never been properly “disestablished” under federal law and therefore remained Indian territory. As a result, jurisdiction over crimes committed in those territories should have been limited to prosecution by only federal or tribal courts. The Supreme Court’s mandate halts the Oklahoma CCA’s reversal in Bosse’s case from taking effect while the state files a petition for certiorari, asking the justices to review and clarify the scope of McGirt.
Bosse is not Native American, but his victims were, and his crime took place on land that has since been reclassified as Indian territory in the wake of McGirt. Although Oklahoma has not yet filed its writ of certiorari in the case, its stay petition requested the Court address “whether states have jurisdiction over crimes committed by non-Indians against Indians in Indian country.” The petition also argued that the Court’s prediction in McGirt that “significant procedural obstacles” would prevent a slew of invalidated convictions from overwhelming the Oklahoma courts is in conflict with the Oklahoma CCA’s holding “that federal law prohibited the State from imposing such post-conviction procedural bars.” The state maintains that without the ability to implement limits on post-conviction claims relying on McGirt, the administration of justice would grind to a halt in Oklahoma, threatening public safety. If the Supreme Court rejects Oklahoma’s application for writ of certiorari, the stay of the mandate will be lifted immediately, and Bosse removed from the state’s death row.
Notably, Acting U.S. Solicitor General Elizabeth Prelogar filed an unsolicited amicus brief opposing granting the stay order, arguing that Oklahoma lacks jurisdiction to prosecute Bosse for offenses against Native Americans on Native American land: “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 liberal wing—Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan—would not have granted the stay order. The newest justice, Amy Coney Barrett, was not on the Court when Justices Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg joined Justice Neil Gorsuch to form the majority for McGirt. Notably, however, five votes are needed to grant a stay at the Court, whereas only four votes are needed to grant a petition for writ of certiorari. Given that the Court has already stayed the decision reversing the conviction in Bosse, it is reasonable to predict that there are four votes on the Court to grant the state’s writ.