Judiciary to decide if McGirt affects Osage County

Robert Smith
Pawhuska Journal-Capital

The reasoning of the U.S. Supreme Court's decision in July 2020 that the Muscogee  reservation had never been properly disestablished could lead to a change in the way the courts view Osage County.

The Osage Nation has filed a friend-of-the-court brief in ongoing post-conviction litigation involving a state inmate found guilty in 2007 of a 2005 killing. Louis R. Young was found guilty in Osage County of killing Jerry Wayne Doyle with a pistol. Young was sentenced to life without the possibility of parole.

The Oklahoma Court of Criminal Appeals in January 2021 ordered that an evidentiary hearing should be conducted in Osage County District Court in regard to an application by Young for post-conviction relief. The District Court conducted the hearing March 23 to make two determinations of fact -- whether Young is a Native American, and whether the killing for which he was convicted took place in "Indian Country" as understood in the McGirt decision.

District Judge Stuart Tate determined that Young is Native American, but also concluded that the killing did not take place in Indian Country, since the 10th Circuit Court of Appeals ruled in 2010 that the Osage reservation had been disestablished. The U.S. Supreme Court in 2011 declined to accept an appeal of that decision.

After the Osage County evidentiary hearing, the Young case went back to the Oklahoma Court of Criminal Appeals, and the Osage Nation requested and received permission to submit an amicus, or friend of the court, brief. The Osage Nation submitted a brief in which it argued that its reservation was never properly disestablished. Also, with legal representation Young sought a second evidentiary hearing.

At that point, Fisher and the state Attorney General's office talked. The Attorney General's office took the lead and asked the Court of Criminal Appeals to stay the Young case, which the Court of Criminal Appeals granted on June 22.

Under the terms of McGirt, the U.S. Supreme Court majority defined as Indian Country the lands in eastern Oklahoma that formerly were part of the Muscogee reservation. As a result of the decision, the federal Major Crimes Act would apply rather than state law in affected areas. This means that federal courts or tribal courts would be responsible for handling large numbers of major criminal cases that previously were thought to be the responsibility of the state of Oklahoma.

Since the McGirt decision, the Oklahoma Court of Criminal Appeals has taken the view that the reservations of the Cherokee, Chickasaw, Choctaw and Seminole nations also still exist.

The state of Oklahoma is currently seeking to appeal to the U.S. Supreme Court a decision by the Oklahoma Court of Criminal Appeals in March 2021 to throw out the conviction of a defendant named Shaun Michael Bosse in regard to the killings of three citizens of the Chickasaw Nation. Bosse is not Native American. The Court of Criminal Appeals' decision in the Bosse case is stayed while the U.S. Supreme Court decides whether to accept the state's appeal.

Numerous cases in Osage County also may be affected by McGirt, depending on what the appellate courts decide.

District Attorney Mike Fisher said about 30 Osage County cases have been identified as being potentially affected.

“We’re really in a holding pattern right now,” Fisher said.

The Osage Nation argued in its amicus brief that only Congress has the power to disestablish an Indian reservation, and it has never articulated the clear intent to disestablish the Osage Nation Reservation.

"There is no statute whereby Congress disestablished the Osage Nation Reservation that it created in 1872," the amicus brief says. "That is the final word on the subject."

Fisher said that the Oklahoma Court of Criminal Appeals is not legally bound to honor the 10th Circuit's 2010 ruling that the Osage reservation had been disestablished. The state Court of Criminal Appeals could decide to chart its own path on the issue, Fisher said.

Fisher did, however, say that the McGirt decision has led to great stresses on state and federal prosecutors in Oklahoma, and that the result is that Native American crime victims may receive less in the way of justice from the courts because of the difficulty of shifting so many cases into the federal system.

“McGirt has had an extraordinarily negative impact on our Native American citizens,” Fisher said. “McGirt has done a lot of harm to Native Americans.”

Federal prosecutors are overwhelmed by the number of cases coming their way as a result of McGirt, Fisher said. They are having to prioritize. Murders and other heinous crimes are going first, but some lesser offenses that are, nonetheless, felonies may not be prosecuted due to a lack of resources, he said.