BOSSE v. STATE
2021 OK CR 3
Okla. Crim. App.2021Background:
- Shaun Michael Bosse was convicted by a McClain County jury of three counts of first‑degree murder and one count of first‑degree arson and sentenced to death (murder) and 35 years plus fine (arson).
- Bosse filed a successive post‑conviction application invoking McGirt v. Oklahoma (2020), arguing the State lacked jurisdiction because the victims were Chickasaw Nation citizens and the crimes occurred within the Chickasaw reservation.
- The parties stipulated the three victims were members of the Chickasaw Nation and that the crime site fell within the Chickasaw boundaries as described in historical treaties (1830, 1837, 1855, 1866); title to the lot traced back to allotments from reservation lands.
- The District Court, after an evidentiary hearing, found Congress had established a Chickasaw reservation and had never clearly disestablished it; it concluded the crimes occurred in Indian Country under 18 U.S.C. § 1151.
- Oklahoma urged concurrent state jurisdiction, raised procedural defenses and urged a stricter blood‑quantum test for Indian status; the Court of Criminal Appeals rejected those arguments and granted relief.
- The Court reversed Bosse’s state convictions and remanded with instructions to dismiss, holding federal (and tribal) jurisdiction, not state, governs these crimes.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| State jurisdiction over crimes against Indians in historic Chickasaw lands | Bosse: victims were Chickasaw and crime occurred inside Chickasaw reservation per treaties; McGirt removes state jurisdiction under 18 U.S.C. §§ 1152/1153 | State: Oklahoma retains concurrent jurisdiction over non‑Indian perpetrators of crimes against Indians in Indian Country; procedural bars apply | Court: reservation exists and was not disestablished; victims are Indian; federal/tribal jurisdiction exclusive; state lacks jurisdiction; convictions reversed and dismissed |
| Test for Indian status (blood quantum) | Bosse: victims met the Rogers test—some Indian blood and tribal/federal recognition | State: wants a specific blood‑quantum threshold to define Indian status | Court: adopts Tenth Circuit/Rogers totality test (some Indian blood + tribal recognition); rejects arbitrary state‑imposed quantum |
| Procedural defenses (successive post‑conviction waiver, Rule 9.7 timing, laches) | Bosse: McGirt created a previously unavailable legal basis; subject‑matter jurisdiction not waivable | State: claim is barred by successive‑petition rules, timeliness, laches | Court: jurisdictional claims are not subject to those procedural bars; McGirt is newly available law; claim is properly before the court |
| Whether state/federal concurrent jurisdiction exists absent congressional authorization | Bosse: 18 U.S.C. §§1152/1153 preempt state jurisdiction for crimes by/against Indians in Indian Country | State: relies on precedents like McBratney to argue concurrent jurisdiction for some crimes | Court: federal jurisdiction preempts state jurisdiction unless Congress expressly provides otherwise (e.g., P.L. 280, Kansas Act); Oklahoma has no such statute or compact here |
Key Cases Cited
- McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (reaffirmed that reservation status depends on treaty/statutory text and that Congress must clearly disestablish a reservation)
- Solem v. Bartlett, 465 U.S. 463 (1984) (Congress must clearly express intent to disestablish reservations)
- Nebraska v. Parker, 136 S. Ct. 1072 (2016) (statutory text governs reservation‑disestablishment inquiries)
- United States v. Rogers, 45 U.S. 567 (1846) (two‑part Rogers test for Indian status: blood and tribal recognition)
- United States v. McBratney, 104 U.S. 621 (1881) (held federal courts lacked jurisdiction over crimes between non‑Indians on reservation — limited to non‑Indian v. non‑Indian context)
- Donnelly v. United States, 228 U.S. 243 (1913) (McBratney does not limit federal jurisdiction over offenses by or against Indians)
- United States v. John, 437 U.S. 634 (1978) (Major Crimes Act preempts state jurisdiction when it applies)
- Negonsott v. Samuels, 507 U.S. 99 (1993) (Congress may authorize state jurisdiction in Indian Country by statute)
- United States v. Prentiss, 273 F.3d 1277 (10th Cir. 2001) (discusses Rogers test and types of proof for Indian status)
- United States v. Diaz, 679 F.3d 1183 (10th Cir. 2012) (uses a totality‑of‑the‑evidence approach to Indian status)
- Wackerly v. State, 237 P.3d 795 (Okla. Crim. App. 2010) (procedural bars do not apply to jurisdictional claims)