Supreme Court okays Bosse stay as Oklahoma’s AG resigns

(OKLAHOMA CITY, Okla.) It was an eventful week for Oklahoma prosecution. 

On Wednesday, Justice Neil Gorsuch granted a stay of the mandate issued in the Bosse v. Oklahoma case that Oklahoma Attorney General Mike Hunter asked for last month. 

The state is going all in on the notion they have concurrent jurisdiction with the federal government to prosecute non-American Indians who commit crimes against American Indians.

The stay effectively keeps Shawn Bosse, a former death row inmate convicted of killing three Chickasaw citizens (a woman and her two kids), in state custody until the Supreme Court decides whether to hear the state’s case. 

If the Supreme Court decides to hear the case, the stay will extend until a decision is made on whether the state has concurrent jurisdiction.  

Bosse’s death penalty conviction was overturned in March following the landmark McGirt v. Oklahoma Supreme Court ruling. 

In court documents filed last month, Hunter said the Supreme Court “has never squarely confronted the question of whether states lack jurisdiction to prosecute non-Indians who commit their crimes against Indians because of the General Crimes Act.” 

He also said state jurisdiction minimizes the chances abusers and murderers of Indians will escape punishment, and criminals will be let loose and “free to victimize others” if the stay is not granted. 

Find the full list of court documents tied to the case here: https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a161.html  

Gorsuch granted Hunter’s request pending “the timely filing and disposition of a petition for a writ of certiorari”. The record also stated that Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.

The Chickasaw Nation submitted an amicus brief saying the state’s motion for the stay should have been denied. 

“We must weigh in as the Court could not rule in the State’s favor without disregarding more than one hundred years of the Court’s precedent in federal Indian law,” documents filed by counsel for the Chickasaw Nation read. 

They also said they believed Congress was the appropriate avenue to settle the matter. 

The United States filed their own amicus brief, echoing the Chickasaw Nation’s sentiment. 

“… Congress is considering a bill that would permit the Chickasaw and Cherokee Nations to enter into compacts with the State regarding the exercise of concurrent criminal jurisdiction “by or against Indians within [their] reservation[s].” H.R. 3091 § (6)(b)(1),” the United States said in their filing. “Although the United States has not taken a position on that particular bill at this time, this type of targeted action by Congress would be one means to address practical difficulties resulting from exclusive federal jurisdiction over crimes by non-Indian defendants against Indian victims in Oklahoma, without altering the well-established jurisdictional regime throughout the entire country.” 

Bosse’s counsel also fought to have the stay request tossed out. 

The fate of the case is now even more murky, as Hunter resigned the same day Gorsuch granted his stay request. 

“It has been a distinct and absolute privilege of a lifetime to serve as the state’s attorney general,” Attorney General Hunter said in a statement released Wednesday. “Regrettably, certain personal matters that are becoming public will become a distraction for this office. The office of attorney general is one of the most important positions in state government. I cannot allow a personal issue to overshadow the vital work the attorneys, agents and support staff do on behalf of Oklahomans.” 

The resignation comes as multiple news outlets reported Hunter is divorcing his wife and had an affair with a state employee.

We’re told his official resignation letter will be available at a later day. 

This story is a part of the Oklahoma Media Center’s Promised Land collaborative effort, which shows how the landmark McGirt v. Oklahoma decision will affect both tribal and non-Indigenous residents in the state.

It is a project of the Local Media Foundation with support from the Inasmuch Foundation, the Walton Family Foundation and the Democracy Fund.