Amicus Curiae Brief — Oklahoma, Applicant v. Shaun Michael Bosse

No. 20A161

CAPITAL CASE

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF OKLAHOMA, Applicant,

-Vs-

SHAUN MICHAEL BOSSE, Respondent.

To the Honorable Neil M. Gorsuch,

Associate Justice of the United States Supreme Court and

Circuit Justice for the Tenth Circuit

BRIEF OF AMICUS CURIAE THE CHICKASAW NATION

FRANK 8S. HOLLEMAN, IV STEPHEN GREETHAM

Counsel of Record Senior Counsel

DOUGLAS B. L. ENDRESON MEREDITH TURPIN

SONOSKY, CHAMBERS, SACHSE, Associate General Counsel

ENDRESON & PERRY, LLP CHICKASAW NATION

1425 K Street, NW, Suite 600 Office of Senior Counsel

Washington, DC 20005 4001 N. Lincoln Blvd

fholleman@sonosky.com Oklahoma City, OK 73105

dendreson@sonosky.com stephen.greetham@chickasaw.net

Phone: (202) 682-0240 meredith.turpin@chickasaw.net

Phone: (580) 272-5236

DEBRA GEE

Chief Counsel

CHICKASAW NATION

Office of Tribal Justice Administration

P.O. Box 1548

Ada, OK 74821

debra.gee@chickasaw.net

Phone: (580) 436-7233

Attorneys for Amicus Curiae Chickasaw Nation

May 7, 2021

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......ccccssccssssssssseccscccccccccccssssssssecscsscccccccccccscssssssccssccncesseeee ii

INTRODUCTION............0000+ . sesecccccceseeesecees ssevsncccneessesssscccsccccscasees

BACKGROUND........ sees ssaseosccrcscesccccncncccccsecccccccccseescssesaeee sece 2

REASONS FOR DENYING THE APPLICATION ............s0css0e00 a |

I. APPLICANT HAS SHOWN NEITHER THAT CERTIORARI IS

LIKELY TO BE GRANTED, NOR A “FATR PROSPECT” OF

REVERSAL WERE IT GRANTED \rsesnnwcascsvssunsansnenennsemssaicwnceninicexinicneeonkienneonmeenn 8

A. There Is No Reasonable Probability That Certiorari Will

Be Granted. sccsisscccssusassscsssvavnssesasssusweasonson sass tacieasavexvonsvensenmennevswasnawerseaneses 8

B. There Is No “Fair Prospect” That The Judgment Below

Will Be Reversed If Certiorari Is Granted. ...............:c:sssesesssssessenseeseeeees 13

1. As Congress’s Constitutional power in Indian

affairs is exclusive, the State has no jurisdiction

over crimes by non-Indians against Indians in

Indian country absent express congressional

AULHOIZAtCION, ..ncscsenveviiessesagasessenesgcssendssueswasstsssceunessereeyesseseaysieiNes - 14

2. Congress has consistently exercised its

Constitutional authority in Indian affairs by

enacting statutes under which federal jurisdiction

is exclusive over crimes by non-Indians against

Indians in Indian COUNtTY................cseseeeeeeeeeeeeeeeeennseeeeeereeeseeeeeeaes 16

3. This Court’s decisions confirm that federal

jurisdiction is exclusive over crimes by non-Indians

against Indians in Indian COUNtTY............cceeseceeessneeeteessneeeneenees 20

II. THE STATE WILL NOT SUFFER IRREPARABLE HARM IF A

STAY IS NOT ISSUED. ...........ccccccecsseeeceeteeeeeeeeeeeeeeesseeeeressneeeeesscueeeesessseaseesnanes 25

A. The State Will Not Suffer Irreparable Harm Absent A

S 8 Vicsssssssxssvnunacensnssveevanxananarneeceanmnae sean exenccnesasscnmecennensnessoesseavsnasseieenes 25

B. Inter-Sovereign Cooperation Is Best Served By The

OCCA’s Limited Stay.................-sssesvessnaswesasseavavsssununescconevanseansvensscusienees 31

CONCLUSION.........0c000 Seseeesss Seessesseeeerere Sesueseacans scar ess ssnenesevesssssvsrsvesere? 35

TABLE OF AUTHORITIES

CASES

Arizona v. Inter Tribal Council of Ariz., Inc.,

570 U.S. 1 (2103) ,.orscorexcreeosenersegnerosonsensesisns's jn tessbaaiusussussedsenuedssasstsuewesspsusdesetpacesseing aussie 19

Baker v. Carr,

B69 U.S. 186 (1962) oo... ccccccccceceeeeeeeesssneeeeeeeeeeeeeeeteesnecnnnaeaeeeeeeeeeeeesesaecaeesesereesereneress 26

Bank of U.S. v. Dandridge,

25 U.S. (12 Wheat.) 64 (1827) .......cccceccscsseeeeeceseeeeeeeennenaaaeaeeeeeeeeeeeeeeneeeeuecseceeneeneesensesess 26

Beard v. Kindler,

B68 U.S. 17 (2012) ....ccccccccceeseceecesesssececeeeeseecceeeencaeeeeeeeseceeeseeeeseeeeeeeeeeseusseeeeennseeesenreaeaees 9

Bench v. State,

2021 OR CRD bvicccccccnccnwnnesess snes sswasone suns sox sessersaens+ iso. sWORMRIONIEAIEOIX© HEBEL NOA ER ULSINERIEN 9

Bosse v. Oklahoma,

2021 OK CR 8..uu.cccccccccscccor one saseuinnzencastaenitensonnusaseuencanenanatecasswexenasecoonmmsasnesnenoereneneess 4, 23

Brush v. Ware,

40 U.S. (15 Pet.) 93 (1841) scesesevesasvnseeswccsscccewoscuscumasseccsccuncevaansmeneneiiauassaevansesnccenswanes 26

Certain Named & Unnamed Non-Citizen Children & Their Parents v. Texas

448 U.S. 1327 (1980) sescsscsnessasssssacasevsetscsssvecuecaavermanciassvencssveccenecsusunenuscssecasenavesvessaess 26

Cincinnati, New Orleans, & Tex. Pac. Ry. Co. v. Rankin,

QAL U.S. 319 (1916) sscsssssccscrsasescuasasensantessovanccescndevansinenesesspantves tieesgvertecieieemumeuaiecess 26

Cole v. State,

2021 OBR CR 10... ccscsssccssessscessnnesonssnsee sBpiSeKaeesicawesei tlstls denis Wosice bub Wasilla Vosbavesveabaspeinns 30

Conforte v. C.LR.,

A5D U.S. 1309 (1983)... .n.ccccogneereerensonecsnesesssinassssvnentsacdessiasestsunsavaasenaesdcveassiodeasecsceuepesbeues 7-8

Conkright v. Frommert,

556 U.S. 1401 (2009) ...........ccecccssesesccecceeeeesesenceeeeeeeceeeeeeeseeetensneaaeaeeseseeeeesseneeeseeeseereeeenses 8

Cotton Petroleum Corp. v. New Mexico,

A490 U.S. 163 (1989) ......cccccccccceeesseesenseeeeeeceseeeeeeenneeeeeeeeeeeeeeeeteneesstaeeeeseeeeneeeseaeeeseseerenes 19

Doak v. State,

No. PC-2020-698 (Okla. Ct. Crim. App. filed Oct. 9, 2020) ...........ceccseeesesssreeeeeeenneeeees 28

Domenech v. Nat? City Bank,

294 U.S. 199 (1935) esvsscrssrausiensnusiraianaemacesnnccsseeskexcinwnevinsneeheekenint axe ynnaoaneqnNennneNsanaKsonsties 17

Donnelly v. United States,

228 U.S. 243 (1918) sssiscccsieussvesnsnsssnnsssvevesanacsestuvnensoverrenasmasoanianssonccnenenncoenseasanes 20-21, 23

Draper v. United States,

164 U.S. 240 (1896) cassscsssssvicosesriessvessvemarssassnccsresmeravscscisssveunsessnassnesvavevanannanwasecns 20, 21

ii

Ex Parte Crow Dog,

109 U.S. 556 (1883)...conecseorssocesseneeneroonsngnannensstenvesysdesesbbeisdansabancssncssdsesustaseesepuaveadenbendss 18

Ex parte Wilson,

140 U.S. 575 (1891) 20... cecceceeeeeeeeeeceeeeeeeeeeeensenaneeaeeeeeeeeeeteeeeeeensegeaseesesteeeeneees 13-14, 23

Gregory v. Ashcroft,

BOL U.S. 452 (1991) 0.0... ccececccceseessseeeeeeceeeeeeeeeeseessneaucaeeeeeeeeeeeeeeeeenenaaaaeeeeeeeetensaeeeeeeeeees 19

Gulf Offshore v. Mobil Oil Corp.,

A453 U.S. 473 (1981) ..ccccccccccccccccccsceessseeseneneenseeeeeeeseeseceesseaueeeeeeeeeeeseeeeteeeueeeeeeeeeeneneseeeess 19

Hollingsworth v. Perry,

558 U.S. 188 (2010) ...... csssssscsasusansasanacensiemewecnnnseencanasnncasneeneccestcevaeenanincrenieuecenennawonsenowenens 7

Holtzman v. Schlesinger,

414 U.S. 1304 (1972) scssssccsavscccsssrceveccevevscraeverssvsoncesawuansustweeiesenveuensunne---ceeeeee- 7, 25, 29, 34

Howell v. Mississippi,

543 U.S. 440 (2005) .... ssissncsevsssrevnmseriervereanermnncancenscarvrcenecnncaumescasesiwonweacavesssusninae 9

Jones v. State,

No. F-2017-1309 (Okla. Ct. Crim. App. Apr. 22, 2021)........ cece eeeeeseceneeeteeeeeseneenees 29

June Med. Servs., L.L.C. v. Gee,

189 S. Ct. 663 (2019) ...............ceccssesssesonns sdilakesseny Sung aiiohbal cebiasiienesdauulenbasonaeelsvasnsaoaresaawcesrs 31

Kenyeres v. Ashcroft,

538 U.S. 1301 (2003) ,..reccerreroonnnensinessndsecedsessaanecanseagasssveeg adie seauenunvusasescvaauvenswusucssciesRacsetes 8

Krause v. Rhodes,

434 U.S. 1335 (1977) sncsosnenvenenconenrannoncencnneensenasseneasesevnssesessgessnassiaccssssssseesupeapaaseiss 25, 29

Magraw v. Donovan,

163 F. Supp. 184 (D. Minn. 1958)... cceccesscnesscaeceneceseeeeesessersneeenaceeseteeeeeenanaeees 26

Maryland v. King,

B67 U.S. 1301 (2012) ........cccccceeceeeescecceeeeeeeeeeeetesseeeeeeeeeeeeeeeseetenneaneeeeareseeeeeeneeaaeeeeeseeeenens 8

McDaniel v. State,

No. F-2017-357 (Okla. Ct. Crim. App. Apr. 29, 2021) (unpublished)... 30

McGirt v. Oklahoma,

140 S. Ct. 2452 (2020) swiscnsvanssncnssnasacevrenamnsasnenesvascensnearecosavesneeenss «++ 1, 18, 27-28, 31-32

Michigan v. Long,

463 U.S. 1032 (1988)................ wesssveaseusasenssssncnvenssnenseseussenavoncaanaswessaccawsomaneaenesamavesssnconees 9

Mitchell v. State,

No. PC-2020-675 (Okla. Ct. Crim. App. filed Oct. 1, 2020) .0...... ee eeeeeseseeeeeeeeseeeees 28

Montana v. Blackfeet Tribe,

471 U.S. 759 (1985) cccscsccssconsxecesonsceeasievscipavssecenes setecceevins seve tecxecsosetavesnsuveessnvemeacieens 18-19

ill

Montana v. United States,

ABO U.S. 544 (1981). .nccpeoorsonreseencongswssennsyniadassesssnssice sais esas nanvasnsecea see aan suns teases yhegceuuieayerss 19

Negonsett v. Samuels,

BOT U.S. 99 (1993) .......cccccccccceeesessssssssnsceceeeeeeeeeseeeceeueeeeceeceeeeeseeeeteeeaeeeseseeseenenenaeeeenenes 24

New York ex rel. Ray v. Martin,

B26 U.S. 496 (1946) ........cccccceseeseecceeeeeeceeeeceeceeeeeeeceeeeeeesereeeeeeeesseaeeaaeeaeenseanauanaeenaaanes 14, 23

Nken v. Holder,

B56 U.S. 418 (2009) 00.2.2... cecccseeesseesneeeeeeeceeeeeeeceeeeseeeeeeseeeeseeeeesneeneeanaeeeeeeeeeeseeneaeaers 25, 26

Okla. Tax Comm'n v. Sac & Fox Nation,

508 US. 114°(1998) sesssceccsesansscasccansausiscms enecucarescesiatestiex escciicek enuC OOS RabknNiCs Re AER ee EIRGHIO NON CHNROORY 24

Oliphant v. Suquamish Indian Tribe,

A435 U.S. 191 (1978) ............. sssssssveassuonnevencvvanasnsstecaexouneinansiacsanvuanmvancrennccansensvansenenenceess 13

Oneida Indian Nation v. County of Oneida,

A414 U.S. 661 (1974) sssesssensscvecesevevesaccanaserce mone senssverenssincckecsuanescsssrsunsesseesesssusanenasens 19

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,

571 U.S. 1061 (2013).............. csemsnawsspesenasesatuavesevsnisevapevessuncsccesvanvercestuveveamnsresueaatssvecovess 8

Rostker v. Goldberg,

448 U.S. 1306 (1980).............. cpsseunssiesisouesssopssy sessile sess iceahvasissenusdes deseaavie vacecssavasavesstereveses 25

Ruckelshaus v. Monsanto Co.,

AG3 U.S. 1315 (1983) 0... ce cecssssssssscesecccccceecessssncessceeeceseesssuesbabeagecceesddessevnenecsssoeesoees 25

Ryder v. State,

2021 OK CR 11 prnepeonnrnorenncnrenosnconnensaronsasnqesspasinssensnsqessesssgesssbessbesebaakcossnessseihucessesssucvaects 30

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) oc cccceecsscscssececceeeeceeeeeeeeesesaeeeeeeeeseneeeeeeneeeeeeeeeeeeeeeeeenaeeeeesenenees 19

Sharp v. Murphy,

140 S. Ct. 2412 (2020) (per Curiam)... cceesececeeeeeesesensseeeeeeereeeeteceeseeesceeeeseseeneeeeereees 2

Solem v. Bartlett,

A465 U.S. 463 (1984) ooo... ec ccccssssssscessccseceesceseesenerseueeeeeeeseeceeeeeeereaeeeeeeseseeeeeeeeennaeees 14, 23

United States v. Kagama,

118 U.S. 375 (1886) ...........cessccssssseseeeceresseeeenecnne sn feaeGesgieasenesiesnOeNpRNRsomivesanaMnnesiies 18, 20-21

United States v. Lara,

541 U.S. 193 (2004) ..... caccccscscsconssossscssswessensnsouweinsaenncasannssnareeancontancensatcevexouvnasnsanarecarnees 18

United States v. Locke,

529 U.S. 89 (2000) .. ssissavasssassveresscsneviveviasmarasrsreauecnssavevecnwevciwviacviasacenasbaeaseausnsnons 19

United States v. McBratney,

104 U-S. 621 (1881) 00.0.0... aiassescscensssnssievencsteasnventccssiececsessavsusensiveveveveissassversse 13, 20, 21

iv

United States v. Ramsey,

271 U.S. 467 (1926) ...cconscoreseoncencenennonnseunenuyssan sass snesssssuuatsceaiesaassysassevenasessece cian astwatessioes 21

United States v. Wheeler,

A435 U.S. 313 (1978) ......ccccccccccecceceeeeessssesnencceeeeeceeeseeeeecnecneeeeeeceeeseseeeeeeeqeeteeteeseeeeeees 17-18

Whalen v. Roe,

423 U.S. 1313 (1975) ....cccccccccccccccessesecsesseseeeeeeeeeceeeeeseeeeeeenenaneeeeeeseseeeeeeeeeeneee 7, 25, 29, 34

White Mountain Apache Tribe v. Bracker,

448 U.S. 136 (1980) ........cccccccccceceseessesssneeeeeeeeeeeeceeceeeeeeseneeueeeeeseeeeeseeeenenaauaeaeeeseeseenaneees 19

Williams v. Lee,

B58" WiS217 (1959) sssscssewssssnsanowescaesrsnssscseeisteshSeietntncrs NS eKNTRO 9:8 SGOR VRIES RNRIERNHOR RESDNECD ON 19

Williams v. United States,

327 U.S. 711 (1946) scvsssvssccccsvscccvcssrsnvenssasewcevaavavesvaeaverwasuvswesssensvbassensnumacnesasveseseenca 22-23

Worcester v. Georgia,

31 U.S. (6 Pet.) 515 (1832) wessscssseceversrenwacannasesvanvesscomcncncessensneeumuecnes: 14-15, 16, 18, 19

Worthington v. State,

No. PC-2020-744 (Okla. Ct. Crim. App. filed Oct. 22, 2020) «0.2.0... cceceeeeeeeeeeeeeeseeeeees 28

Wyeth v. Levine,

555 U.S. 555 (2009) sisceccvsimanccassccaececncaussseananesusishusasase tesuteaiesua en suesucasesasxevvesssescassseaswseies 19

STATUTES

WS USI. $0153 2) scsasarensacanssssnensscesnosiestsus eres teien esi a IER GASES ERIE RINGER WICC 18

18 U.S.C. § 22411 ..... snssrassuucepessensuscesupescecssuesesesasestsvestivisssssieisevinses muenevarnverenreveaxacess 28

18 U.S.C. § 2242. vonscsrenacmmeveneanenonenensnmouneemanengnsnsnenanenneoisncancesasynonssenaressna Unies sua iaeees 28

ao Ose CAE 35) 12): Sa er 28

28 U.S.C. § 2101(P).. .sssssssssvoccasesuonsncssweswonsaoswauassnversuesunecnusereneouerven ecm anreTeNtecs 30

Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 (codified as amended at

18 U.S.C. § 1162, 25 U.S.C. §§ 1821-1326, 28 U.S.C. § 1860) .. eee 24

Act of June 8, 1940, ch. 276, 54 Stat. 249 (codified at 18 U.S.C. § 3248) .....0.. 23-24

Act of Mar. 27, 1854, 10 Stat. 270 ...........vessssassannerasnnnesinennscssnasmaseumsenensctausevanieeencsnens 18

Act of Mar. 3, 1817, ch. 92, 3 Stat. 383 ...........cccscssssssesesesssesscsssccccecsnseccesonsacsccensecesses 17

Act of Mar. 30, 1802, ch. 13, 2 Stat. 139... eecccseeceeenseeeeeeeneneeeeeeeeneeeesenenteaees 15,17

Act of May 19, 1796, ch. 30, 1 Stat. 469 «00.0... cstessssnnswnsscsnsessasassaasciansovsssnsansieneunee 17

Assimilative Crimes Act, 18 U.S.C. $18 oo... cecceccceseceeeeeseeeeseeseeeeeeeseaeeeereeseseeseneeanes 22

General Crimes Act, 18 U.S.C. § 1152 oo... ccseesseeneeetseneretssenteesenenneeeeeeeeeeeeeenes 3,17

Indian Trade and Intercourse Act, Act of July 22, 1790, 1 Stat. 138 we 17

Interstate Agreement on Detainers, 18 U.S.C. App. 2 ........cccecsseesseceeessrseeeetenseserteeeeees 7

Major Crimes Act, 18 U.S.C. § 1158 ooo. ccecseeeeseseeesseeesseseeeeseeeeseseeeeres 13, 18, 28

Okla. Stat. tit. 21, § 99aCD)...... cece cccecccecceeeceeseessnsneeeeeeecessensecensseeecececeesenseeteeseress 32

Okla. Stat. tit. 22, § LO089(D)(8) occ eee eceeeeeeeneeeeeeeeeeeeeeeteenenenaeeeeeeeeeeeeteeteeeeeeneenes 3

Okla. Stat. tit. 22, § LO89(D)(Q) serssccaccnsneunaaascncverssnescecseresesssesreveemesuesssicconmecreues 3-4

RULES

Supreme Court Rulei23221...............--a» aocessemnnsonen enceneeaesenalennsnntaa eect enema tna beet ase 30

CONSTITUTIONAL PROVISIONS

US. Const. art. I, § 8, cl. 8... cccccccscsseeeceneceeeeeeecceceeeeceneeeeeeeeeeeeeeeeeeecrseeeesenenes 19

OTHER AUTHORITIES

Alanna Durkin Richer, et al., Tribal Cases Swamp US Prosecutors, AP

(Mar. 18, 2021) .0.......cccceeeseeeeecececcceeeeeeeeeccerenseeeseeeeeseeeeuseueuseeeeseeeeaeaeaeeeteseseeeeqaqeaqnnes 12

Amy Slanchik, Federal Prosecutors Move to Oklahoma, Help with

Supreme Court Caseload, News9 (Jan. 21, 2021, 10:26 PM) ..........secccsseceeessreeeeeees 12

Curtis Killman, Former Principal Chief Isn't Happy as McGirt Decision

Hits Home, Tulsa World (Apr. 13, 2021)..............ccsssssessssccescsssesessnnnerecccssssssssnensaeons 12

Curtis Killman, Supreme Court Ruling Affects More Than 800 Indian

Country’ Criminal Cases in Oklahoma So Far, Tulsa World (Oct. 29,

QOQO) ......cececesessessccccccececeecesscssseeececeeeceseeessesecseaucesceceeceeseeseeceseeececeeeeseceeeseaeeeeeseeeeeeaeans 29

David Heska Wanbli Weiden, Opinion, This 19*h-Century Law Helps

Shape Criminal Justice in Indian Country, N.Y. Times (July 19, 2020)

sre cvneeenenesmsrssccsaersattase mag en nceepserl Biers aati neg er snnncnsmmensspnolilesemanseauenessanernenes 10

Josh Dulaney, Oklahoma Commutation Process Like Starting Over for

Victims’ Families, Oklahoman (Mar. 7, 2021 1:37 AM) ..........cccccseeeeeeeeeeeeneeeeeeennees 13

Letter from Mike Hunter, Att’y Gen., Okla., to Senator Jim Inhofe, et al.

(Oct. 1, 2020) ....eccecceccsccccceesssssseeeeeeeeeeceeeseeseneeeeeeeeeeeeeeseeeeseeneueeeeesereeseeeeneneaeeereeseseeenees 10

Press Release, N. Dist. of Okla. U.S. Att’y’s Office, U.S. Dep’t of Justice,

Acting U.S. Attorney Clint Johnson’s Statement Regarding the

Oklahoma Court of Criminal Appeals’ Ruling in Hogner v. Oklahoma

(Mar. 11, 2021) . rocsssenesenenonnarasasennsasditense so seiu senate Sashcas teas seus 0ans Shite teas eine USmsensaUncaebaeeteees 12

Ryan Gentzler, ‘Prosecutorial Discretion’ Makes Oklahoma's Justice

System a Roll of the Dice, Okla. Policy Inst. (updated May 2, 2019).............:::2008 11

Steve Metzer, Lawmakers Warned of Effects of State Budget Cuts,

Journal Record (Apr. 16, 2020)............cceeeeeeesesseeeeeeeeeeeeeessnneeeeeeeeeeeeeeeeeseeueeereesennenes 11

vi

U.S. Dep’t of Justice, Indian Country Investigations and Prosecutions:

DOTS (2018) ........-.000+0- «+ Sadjgeissbbarsbaaceeedeesesesetes sassbaasaansd vane tee veeuvmvennarCe REN: 10-11

TRIBAL AUTHORITIES AND INTER-GOVERNMENTAL AGREEMENTS

Chickasaw Tribal Legislature, Gen. Res. No. 38-0910 (Feb. 21, 2021) ........ceeseeseeees 4

Deputation Agreement (filed with Oklahoma Secretary of State on

Jan. 28, ZOO) .........ccccesseccesecceneresssvasinsnvstednuiaesausnanssussisienennucounesneenaasmeseravencanetesesvenntes 32

Tribal Addendum, Addition of Tribe to Deputation Agreement for Law

Enforcement in the Chickasaw Nation (Apr. 24, 2006)...........cccccceeseeseesseseeeeeeenees 32

Proclamation from the Office of the Governor of the Chickasaw Nation

(Mar. 11, 2021) . ssssccssssssataveaercscepenuvenauasssoansaticecveieverenveveciuscunsscansunccmecscunseasan 33

vil

INTRODUCTION

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), is the law of the land. Oklahoma’s

courts are applying it. And the Chickasaw Nation (“Nation”), the State of Oklahoma

(“State”), and the United States are implementing it with a shared commitment to

public safety and effective law enforcement. Substantial work already has been done

and substantial progress already has been made. As expected, implementation has

posed challenges, but resolution to those challenges must be found in moving forward

in accord with the law, not backward. The Chickasaw Nation respectfully submits

this brief as amicus curiae based on its principled concern that the State’s motion

risks taking us backwards by seeking to stay the mandate of a decision we are

working to implement.

The Nation opposes that motion because the State has failed to show, as it

must to prevail, irreparable harm, a reasonable probability of a grant of certiorari,

and a fair prospect of reversal. Neither of the substantive issues the State would

have this Court review are worthy of certiorari. As to the first issue, we defer to the

argument Respondent makes, but as to the second—whether the State has

concurrent criminal jurisdiction with the federal government in Indian country under

the General Crimes Act—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. Finally, as a general matter, the State’s policy-based predictions

of dire results are insufficient to show harm. In fact, the State describes the

implementation of law, not a legal injury, which is grounds enough to deny the

motion.

If adjustment is needed to meet the challenges involved in implementing the

law, Congress is the appropriate forum. Rather than seek to avoid those challenges

through continued litigation, the Nation—joined by the Cherokee Nation, at least, as

well as the Oklahoma Attorney General and leadership in the Oklahoma

Legislature—has instead advocated for narrow congressional action to empower the

Nation and State to negotiate the allocation of criminal jurisdiction on the

reservation. See infra at 10 n.3. The work toward that solution is far from finished.

Such approach may not solve all challenges that arise from a faithful adherence to

the law, but Congress remains the appropriate forum for such matters and extending

the Oklahoma Court of Criminal Appeals’ limited stay will not aid in their resolution.

With these considerations in mind and given the State’s failure to meet its burden on

this motion, the Nation respectfully submits the State’s motion should be denied.

BACKGROUND

Shaun Michael Bosse (“Bosse”), a non-Indian, was convicted in Oklahoma state

court of three counts of first-degree murder and one count of first-degree arson. His

victims were Chickasaw Nation (“Nation”) citizens, and his crimes were committed

on the Chickasaw Reservation. Bosse was sentenced to death for his crimes. A direct

appeal of his conviction and his first state court petition for post-conviction relief both

failed. On February 20, 2019, while this Court was considering Sharp v. Murphy,

140 S. Ct. 2412 (2020) (per curiam), Bosse filed a successive petition for post-

conviction relief in state court. See Successive Appl. for Post-Conviction Relief —

Death Penalty.1 He argued that the State lacked jurisdiction to try him under the

Genera! Crimes Act, 18 U.S.C. § 1152 (“GCA”). See id. at 15-16.

After this Court decided McGirt, the State argued in an August 4, 2020 brief

to the Oklahoma Court of Criminal Appeals (“OCCA”), the State’s highest court in

criminal cases, that the OCCA should consider procedural defenses before remanding

to the state district court for further proceedings. See Resp. to Pet.’s Proposition I.

The State contended that Oklahoma law limits the basis on which a petitioner may

challenge the State’s jurisdiction in successive petitions for post-conviction relief,

which foreclosed Bosse from raising jurisdictional arguments in his successive

petition. Id. at 23-41.

The OCCA rejected this argument in its August 12, 2020 remand order to the

Oklahoma district court, holding that under state law Bosse’s jurisdictional argument

was not foreclosed because it could not have been raised earlier: “The issue could not

have been previously presented because the legal basis for the claim was unavailable.

22 O.S. §§ 1089(D)(8)(a), 1089(D)(9)(a); McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).”

See Order Remanding for Evidentiary Hr’g at 2.?

1 All briefs filed with the OCCA referenced in this section can be found on the Oklahoma State Courts

Network docket for the case, which is available at https://bit.ly/2QPDqP6. Some of the documents’

titles have been shortened in this brief.

2 See Okla. Stat. tit. 22, § 1089(D)(8) (“If . . . a subsequent application for post-conviction relief is filed

after filing an original application, the Court of Criminal Appeals may not consider the merits of or

grant relief based on the subsequent . . . application unless: a. the application contains claims and

issues that have not been and could not have been presented previously . . . because the legal basis for

the claim was unavailable . . . .”); id. § 1089(D)(9) (“For purposes of this act, a legal basis of a claim is

unavailable on or before a date described by this subsection if the legal basis: a. was not recognized by

On October 13, 2020, the district court determined on remand that Bosse’s

crime occurred on the Chickasaw Reservation, that the Chickasaw Reservation had

never been disestablished, and that his victims were Chickasaw Indians. See Bosse

v. Oklahoma, 2021 OK CR 8 at 1 6, 8-12. Relying on this factual determination, the

OCCA concluded on March 11, 2021 that under the GCA the State lacked jurisdiction

to try Bosse. The OCCA also acknowledged that “[bloth the Attorney General and

the District Court ask this Court to consider this case barred for a variety of

procedural reasons” including “waiver under the successive capital post-conviction

statute, 22 O.S. 2011, § 1089(D), and waiver of the jurisdictional challenge . . . ” Id.

{ 20. The court declined to do so. Id. The OCCA stayed issuance of its mandate for

20 days—until March 31, 2021. Id. J 30.

In anticipation of the OCCA’s application of the McGirt analysis to the

Chickasaw Nation’s reservation, the Chickasaw Nation Tribal Legislature enacted a

resolution, stating the Nation’s full support for federal criminal charges against

Bosse, expressing the Nation’s “desire[] to ensure justice for these Chickasaw victims

of crimes” and calling on the United States to prosecute him “to the fullest extent of

the law.” Chickasaw Tribal Legislature, Gen. Res. No. 38-0910 (Feb. 21, 2021). And

on March 30, 2021 the United States Attorney for the Western District of Oklahoma

filed a four-count complaint, including three counts of murder, and issued a federal

warrant for Bosse’s arrest.

or could not have been reasonably formulated from a final decision of the United States Supreme

Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or

before that date... .”).

On March 31, 2021, the State filed a motion for leave to file a petition for

rehearing, a petition for rehearing, and a motion to stay issuance of the mandate

pending the disposition of the petition for rehearing. In support of its motion for leave

to file, the State re-asserted its position that the OCCA should address its procedural

arguments against hearing Bosse’s successive post-conviction relief petition. Br. in

Supp. of Mot. for Leave to File Pet. for Rehr’g, at 5 (quoting Resp. to Pet.’s Proposition

I, at 1-2). In its accompanying March 31, 2021 motion to stay, the State requested a

stay “based on its petition for rehearing and its planned filing, if necessary, of a

Petition for Writ of Certiorari in the United States Supreme Court.” Mot. for Further

Stay of Mandate, at 1. On the same day, the OCCA stayed issuance of the mandate

until it could consider the State’s petition for rehearing. See State’s Appendix 2.

Also on the same day, the Nation filed a motion for leave to file an amicus brief,

requesting that to facilitate “ongoing intergovernmental efforts to coordinate

implementation of the reallocation of subject matter prosecutorial jurisdiction within

the Chickasaw Nation’s Reservation” the OCCA stay the mandate for an additional

sixty days. Chickasaw Nation’s Mot. for Leave to File Amicus Br., at 5. The Nation

did not, however, support the legal grounds the State offered in support of a stay.

On April 7, 2021, the OCCA denied the petition for rehearing, ruling that it

was not permitted under the OCCA’s rules, and issued the mandate in the case. See

State’s Appendices 3 and 4. The same day, the State filed a petition to recall the

mandate and brief in support arguing that the petition should be granted because it

intended to file a petition for a writ of certiorari in this Court posing two questions:

whether under the GCA, states have jurisdiction concurrent with the federal

government over on-Reservation offenses committed by non-Indians against Indians,

and whether Indian country jurisdictional claims are non-waivable. Br. in Supp. of

Mot. to Recall Mandate, at 2-4. The State asked the OCCA to recall and stay the

mandate “through the pendency of the State’s Certiorari Petition to the United States

Supreme Court.” Id. at 6.

The next day, April 8, 2021, the OCCA ordered oral argument to be held April

15, 2021 and permitted amici curiae to file briefs. Order Setting Oral Argument.

That same day, the State filed a motion for an emergency, temporary recall of the

mandate pending the oral argument. In its brief in support, the State argued that a

temporary emergency recall of mandate was necessary “to prevent the vacatur of

Petitioner’s murder convictions and death sentences unless and until the Supreme

Court has, assuming it grants certiorari review, rendered a final decision on the

State’s defenses to Petitioner’s jurisdictional claim.” Br. in Supp. of Emergency Mot.

to Temporarily Recall Mandate, at 4. On April 9, the OCCA granted the State’s

motion pending oral argument. See State’s Appendix 5.

On April 12, 2021, the Nation filed an amicus brief on the State’s stay petition.

The Nation again requested only a sixty day stay to permit intergovernmental

cooperation to productively continue, explaining:

The Court’s stays have provided valuable time for local, Tribal, State,

and Federal law enforcement to continue to develop and implement tools

appropriate to protect the public during the transition period and

thereafter. Likewise, case-specific stays issued by district courts have

also provided opportunity for this work. ... Unlike the stay requested

by Oklahoma, each of the prior stays have had a set end date, which has

provided structure and timeline for our work. Criminal defendants are

entitled to timely resolution of charges, but these stays have provided

room for intergovernmental cooperation in implementing the Court’s

Opinion, which has served the public interest.

See Chickasaw Nation’s Br. as Amicus Curiae, at 5-6.

On April 15, the OCCA heard oral argument. The same day, the OCCA stayed

issuance of the mandate for forty-five days, and provided that the mandate would

issue automatically at the end of that period. See State’s Appendix 6. The OCCA

thus denied the indefinite stay that the State had requested, after having considered

the State’s asserted certiorari grounds and its asserted fear that the Interstate

Agreement on Detainers, 18 U.S.C. App. 2, could prevent the federal government

from transferring Bosse back into state custody. The State’s instant motion followed.

REASONS FOR DENYING THE APPLICATION

A stay of the mandate is an extraordinary remedy. To obtain such a stay

an applicant must show (1) a reasonable probability that four Justices

will consider the issue sufficiently meritorious to grant certiorari; (2) a

fair prospect that a majority of the Court will vote to reverse the

judgment below; and (3) a likelihood that irreparable harm will result

from the denial of a stay. In close cases the Circuit Justice or the Court

will balance the equities and weigh the relative harms to the applicant

and to the respondent.

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (citations omitted).

Additionally, the lower court’s prior decision on whether to stay the mandate, and on

what terms, is “presumptively correct,” Whalen v. Roe, 423 U.S. 1313, 1316 (1975)

(Marshall, J., in chambers), entitled to “great weight,” Holtzman v. Schlesinger, 414

U.S. 1304, 1314 (1973) (Marshall, J., in chambers), and an applicant carries the

burden of showing that the lower court’s stay decision was wrong, Conforte v. C.LR.,

459 U.S. 1309, 1311 n.1 (1983) (Rehnquist, J., in chambers). See also Planned

Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U.S. 1061, 1063

(2013) (Scalia, J., concurring) (movant bears “heavy burden” to show that a lower

court’s stay decision “was a clear violation of accepted legal standards” and should be

vacated).

The State’s application fails each part of that test, the OCCA’s decision to issue

only a limited, and not indefinite, stay of the mandate is plainly correct and entitled

to deference, and the State’s application should therefore be denied.

I. APPLICANT HAS SHOWN NEITHER THAT CERTIORARI IS LIKELY

TO BE GRANTED, NOR A “FAIR PROSPECT” OF REVERSAL WERE

IT GRANTED

A. There Is No Reasonable Probability That Certiorari Will Be

Granted.

To obtain a stay, the State must show a “reasonable probability’ that this

Court will grant certiorari.” Maryland v. King, 567 U.S. 1801, 1302 (2012) (Roberts,

C.J., in chambers) (quoting Conkright v. Frommert, 556 U.S. 1401, 1402 (2009)

(Ginsburg, J., in chambers)). That is generally shown by the existence of a conflict in

the lower courts on a question of federal law, that the question is important, and that

the posture of the case is appropriate for certiorari review. See Conkright, 556 U.S.

1402-03; Kenyeres v. Ashcroft, 538 U.S. 1301, 1803-06 (2003) (Kennedy, J., in

chambers). The State says it will seek certiorari on two questions: Whether a

petitioner can be procedurally barred from raising the existence of Indian country in

a petition for post-conviction relief; and whether the State has criminal jurisdiction

in Indian country under the GCA. See Br. at 2. The State has not shown a reasonable

probability of a certiorari grant on either question.

The first question was decided below on state law grounds: namely, the

interpretation of Oklahoma’s statute governing petitions for post-conviction review,

which the State had formerly urged as the basis of its motion. See supra at 3-5. The

Nation joins in the argument made by Respondent on this issue. If more were needed,

the OCCA has subsequently expressly confirmed in another post-McGirt case arising

on the Chickasaw Reservation, in which the State urged procedural bars, that

“subject matter jurisdiction is never waived under Oklahoma law.” Bench v. State,

2021 OK CR 12, ¥ 15 n.3 (emphasis added). Simply put, this Court does not grant

certiorari to decide cases “where there is an adequate and independent state ground”

for the lower court’s decision. Michigan v. Long, 463 U.S. 1032, 1040 (1983); cf Beard

v. Kindler, 568 U.S. 17, 19-20 (2012) (per curiam) (quoting Howell v. Mississippi, 548

U.S. 440, 443 (2005) (per curiam)). Therefore, there is no reasonable probability the

Court will grant certiorari on that question, and lacking any grounds for certiorari,

there is no fair prospect of reversal.

The State’s second question deals with the OCCA’s decision on a question of

federal law but presents no split of authority in the lower courts. See Br. at 15-23.

Furthermore, the OCCA’s decision is consistent with over a hundred years of

precedent holding that federal jurisdiction under the GCA is exclusive of state

jurisdiction. See infra at 20-23.

Lacking any evidence of a split, the State advances policy arguments on

tenuous grounds, asserting that state jurisdiction “minimizes the chances abusers

and murderers of Indians will escape punishment and maximizes the protection from

violence perpetrated on Native Americans,” Br. at 15. While the Nation may

sympathize with this view as a matter of policy, that is an argument properly made

to Congress, not here.3 The State also urges the “practical importance” of addressing

its second question, claiming that “federal authorities frequently decline to prosecute

crimes against Indians on reservations” and that “less major crimes will go

unprosecuted as federal prosecutors are busy with the most serious offenses.” See Br.

at 15-17. These assertions too, are properly directed to Congress. Categorically,

these arguments do not bear on whether the OCCA properly held as a matter of state

law that the procedural bars relied on by the State are inapplicable here, nor do they

affect the interpretation of the GCA.

The State offers scant support for these speculative policy arguments, citing

only an opinion column which urges an expansion of tribal jurisdiction as the proper

response to improve public safety. See David Heska Wanbli Weiden, Opinion, This

19t-Century Law Helps Shape Criminal Justice in Indian Country N.Y. Times (July

19, 2020), https://nyti.ms/3vOdIt2. In fact, the Department of Justice data show that

in 2018, federal prosecutors in Oklahoma declined jurisdiction in 27 out of 117 Indian

country jurisdiction cases. See U.S. Dep’t of Justice, Indian Country Investigations

and Prosecutions: 2018 at 36 tbl. 13 (2018), https://bit.ly/3epI4MN. Only seven of

those declinations resulted from the federal government’s prioritization of

3 Indeed, the Attorney General, with the support of the Nation and Cherokee Nation, announced his

support last year for an effort by which Congress could authorize Indian tribes and Oklahoma to enter

into voluntary compacting for the allocation of criminal jurisdiction in Indian country to the State. See

Letter from Mike Hunter, Atty Gen., Okla., to Senator Jim Inhofe, et al. (Oct. 21, 2020),

https://bit.ly/3uqMwjY. The Nation continues to work with members of Congress to develop proposed

legislation that would create a framework for such compacting.

10

prosecutorial resources, as opposed to jurisdictional bars, insufficient evidence, the

unavailability of the defendant, referral to a different jurisdiction, or alternatives to

prosecution, all of which would have been to some extent applicable had the State

been prosecuting those defendants. Id. at 27 tbl. 10. And it is far from certain that

Oklahoma prosecutors will more vigorously prosecute crimes against Indians than

the federal government, given years of budget shortfalls and extreme disparities in

charging and sentencing in Oklahoma district attorneys’ offices. See, e.g., Steve

Metzer, Lawmakers Warned of Effects of State Budget Cuts, Journal Record (Apr. 16,

2020), https://bit.ly/3eXk7LT; Ryan Gentzler, Prosecutorial Discretion’ Makes

Oklahoma’s Justice System a Roll of the Dice, Okla. Policy Inst. (May 2, 2019),

https://bit.ly/38h7fUYx.

Reversing course, the State then asserts that federal prosecutors in Oklahoma

are overwhelmed with Indian country cases, which further justifies certiorari review.

See Br. at 16-18. This is, again, an argument to be made to Congress, and again the

State’s argument is weakly supported. The State cites a set of media reports, which

report with varying degrees of speculation on the impacts of this Court’s ruling in

McGirt on federal prosecutors. See id. at 16-17 & nn.8-10. However, most

substantively, these and other sources show that the federal government and tribes

simply have been working diligently to address the increases in their workloads

resulting from McGirt and associated rulings, which suggests these are short-term

11

challenges. The State also makes assertions about the number of GCA cases it

thinks are or could be pending in Oklahoma. Jd. at 17. Its rough extrapolation from

a small, unrepresentative sample of cases is not statistically sound or otherwise

reliable. Furthermore, perhaps more to the point, even this estimate shows that most

new cases falling under federal or tribal jurisdiction are not GCA cases. Id. at 17.

None of these arguments show the existence of a problem of such importance to justify

certiorari review in this case.

Finally, the State complains that in some cases, when a non-Indian defendant

commits a crime against a non-Indian and an Indian, two trials may be necessary: a

state court trial of the offense committed by the non-Indian against a non-Indian; and

a federal court trial of the offense committed by the non-Indian against an Indian.

Id. at 17-18. But criminal cases with multiple defendants are not uncommon, and

reliance on the Indian or non-Indian identity of a defendant to determine which

sovereign has criminal jurisdiction over a defendant is the norm in federal Indian

4 See, e.g., Alanna Durkin Richer, et al., Tribal Cases Swamp US Prosecutors, AP (Mar. 18, 2021),

https://bit.ly/2RuwNBU (“The Justice Department acknowledges the increased workload, saying

officials are ‘carefully assessing the impact of recent court decisions affecting the work’ of federal

prosecutors in Oklahoma, along with the impact the riot prosecutions are having on the U.S. attorney’s

office in Washington. ‘We have realigned existing resources to assist these districts and will continue

to monitor the situation, the department said in a statement.”); Curtis Killman, Former Principal

Chief Isnt Happy as McGirt Decision Hits Home, Tulsa World (Apr. 13, 2021), https://bit.ly/3tsa0Uz

(“Muscogee (Creek) Nation spokesman Jason Salsman said Lighthorse Police are doing their due

diligence on cases that come before them. ‘I think it is a little bit unfair to place cases falling through

the cracks at McGirt’s feet,’ Salsman said. ‘We are taking those cases. We're working the cases. We’re

moving them through. We're certainly not going to simply turn people loose like we’ve seen happen

(in other jurisdictions). It may take a little time while we build capacity and get things in order, but

nothing’s falling through the cracks.”); Press Release, N. Dist. of Okla. U.S. Att’y’s Office, U.S. Dep't

of Justice, Acting U.S. Attorney Clint Johnson’s Statement Regarding the Oklahoma Court of Criminal

Appeals’ Ruling in Hogner v. Oklahoma (Mar. 11, 2021), https://bit.ly/3tzmWbn; Amy Slanchik,

Federal Prosecutors Move to Oklahoma, Help with Supreme Court Caseload, News9 (Jan. 21, 2021,

10:26 PM), https://bit.ly/2QRKJpH.

12

law. See, e.g., 18 U.S.C. § 1153 (federal jurisdiction over major crimes committed by

an Indian against an Indian or other person); United States v. McBratney, 104 U.S.

621, 624 (1881) (state jurisdiction over a crime committed by a non-Indian against a

non-Indian in Indian country); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,

208 (1978) (Indian tribes “do not have criminal jurisdiction over non-Indians absent

affirmative delegation of such power by Congress.”). If a different jurisdictional

paradigm is to be proposed, that would be a matter for Congress to decide, in the

exercise of its “power . . . to provide for the punishment of all offenses committed [on

Indian reservations], by whomsoever committed[.]” Ex parte Wilson, 140 U.S. 575,

577 (1891).6

B. There Is No “Fair Prospect” That The Judgment Below Will Be

Reversed If Certiorari Is Granted.

The State argues that there is a significant possibility of reversal because

“while the General Crimes Act grants the federal government jurisdiction over

certain crimes in Indian Country, nothing in that Act explicitly preempts the State’s

jurisdiction.” Br. at 18. That argument rests on a false premise — that the State had

such jurisdiction prior to the enactment of the GCA. It did not. Only Congress can

grant jurisdiction to the State over crimes by non-Indians against Indians in Indian

country, which Congress did not do in the GCA. Nor has the State any other basis

for asserting that Congress has granted it such jurisdiction.

5 The State points to a specific case in which a former state inmate killed several people after the State

commuted his sentence and released him early from prison. See Josh Dulaney, Oklahoma

Commutation Process Like Starting Over for Victims’ Families, Oklahoman (Mar. 7, 2021 1:37 AM),

https://bit.ly/38mk9HJ. There appears to be no question that the defendant in that case will be

prosecuted. The State’s complaints are only that he will be prosecuted twice and that this “does

nothing to further tribal sovereignty,” see Br. at 18. Neither justifies certiorari or a stay.

13

1. As Congress’s Constitutional power in Indian affairs is

exclusive, the State has no jurisdiction over crimes by

non-Indians against Indians in Indian country absent

express congressional authorization.

The State argues that Oklahoma’s Constitution and statutory law are alone

sufficient to establish subject matter jurisdiction over criminal cases arising within

its borders, regardless of whether federal law preempts that jurisdiction. Br. at 10-

11. That argument is exactly backwards with respect to state court jurisdiction over

crimes in Indian country. Under the Constitution, Congress’s power in Indian affairs

is exclusive, it extends to all intercourse between Indians and non-Indians in Indian

country, including the allocation of criminal jurisdiction over Indian country, and

therefore the State has no jurisdiction over crimes by non-Indians against Indians in

Indian country unless Congress has authorized it. This was established long ago by

this Court’s decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). And it

remains the law today. Congress has exercised its power “to provide for the

punishment of all offenses committed [on Indian reservations], by whomsoever

committed,” Wilson, 140 U.S. at 577, by providing for “the exclusive criminal

jurisdiction of federal and tribal courts under 18 U.S.C. §§ 1152, 1153,” Solem v.

Bartlett, 465 U.S. 463, 467 n.8 (1984), and “[w]ithin Indian country, State jurisdiction

is limited to crimes by non-Indians against non-Indians, see New York ex rel. Ray v.

Martin, 326 U.S. 496 (1946), and victimless crimes by non-Indians.” Id. at 465 n.2.

In Worcester, the Court considered whether a state criminal law that

prohibited white men from living in Cherokee territory without a state license was

“consistent with, or repugnant to, the Constitution, laws and treaties of the United

14

States.” Id. at 541-42. To answer that question, the Court first examined treaties

with the Cherokee and the congressional acts passed to regulate trade and

intercourse with the Indians, including “especially that of 1802.” Id. at 556-57. The

Act of Mar. 30, 1802 (“1802 Act”), ch. 13, 2 Stat. 189, to which the Court referred, see

Worcester, 31 U.S. at 540-41, provided for federal jurisdiction over crimes committed

by United States citizens or other persons against Indians on Indian land, listed the

prosecutable offenses, namely “robbery, larceny, trespass or other crime, against the

person or property of any friendly Indian or Indians, which would be punishable, if

committed within the jurisdiction of any state, against a citizen of the United States,”

and expressly included the crime of murder of an Indian by a United States citizen or

other person. 1802 Act, §§ 4, 6, 15 (emphasis added). The 1802 Act thus made clear

that the federal government, not the states, had jurisdiction over crimes committed

by non-Indians against Indians in Indian country.

Chief Justice Marshall held for the Court that the states have no such

authority absent congressional authorization because “[t]he treaties and laws of the

United States contemplate the Indian territory as completely separated from that of

the States; and provide that all intercourse with them shall be carried on exclusively

by the government of the union,” Worcester, 31 U.S. at 557. The Chief Justice then

turned to the more fundamental question: “[i]s this the rightful exercise of power, or

is it usurpation?” Id. at 558. In answering this question, the Court compared federal

power over Indian affairs under the Articles of Confederation with the text of the

Constitution. The Articles had imposed two limitations on the power of Congress

15

over Indian affairs: that “the Indians not [be] members of any of the States” and “the

legislative power of any State within its own limits be not infringed or violated.” Id.

at 558-59. As the Court explained, the limitations set forth in the Articles led to

disagreement, as they “were so construed by the states of North Carolina and Georgia

as to annul the power itself.” Id. at 559. The Court held that the

correct exposition of this article [from which the dispute arose] is

rendered unnecessary by the adoption of our existing constitution. That

instrument confers on congress the powers of war and peace; of making

treaties, and of regulating commerce with foreign nations, and among

the several states, and with the Indian tribes. These powers

comprehend all that is required for the regulation of our intercourse

with the Indians.

Id. As “[t]he whole intercourse between the United States and this nation is, by our

Constitution and laws, vested in the government of the United States|,]” id. at 561,

the Georgia law was void, “as being repugnant to the constitution, treaties, and laws

of the United States,” id. at 562.

As we show next, Congress has consistently exercised this power by making

federal jurisdiction exclusive over crimes by non-Indians against Indians on Indian

lands, and this Court has consistently recognized and confirmed that federal

jurisdiction over such crimes is exclusive.

2. Congress has consistently exercised its Constitutional

authority in Indian affairs by enacting statutes under

which federal jurisdiction is exclusive over crimes by non-

Indians against Indians in Indian country.

Since 1790, Congress has exercised its Constitutional authority in Indian

affairs by enacting statutes under which federal jurisdiction is exclusive over crimes

by non-Indians against Indians on Indian lands. This Court reviewed several of these

16

laws in United States v. Wheeler, 435 U.S. 313, 324 (1978), beginning with “[t]he first

Indian Trade and Intercourse Act, Act of July 22, 1790, §5, 1 Stat. 138, [which]

provided only that the Federal Government would punish offenses committed against

Indians by ‘any citizen or inhabitant of the United States’; it did not mention crimes

committed by Indians.” The 1790 Act also incorporated state or territorial law to

define such offenses, and provided that the offender “shall be proceeded against in

the same manner as if the offence had been committed within the jurisdiction of the

state or district to which he or they may belong.” Id. § 5, 1 Stat. at 188. These terms

made clear that the state had no jurisdiction over such offenses. In 1796, the Fourth

Congress revised these provisions, listing prosecutable offenses, which expressly

included the murder of an Indian by a United States citizen or other person, Act of

May 19, 1796, ch. 30, §§ 4, 6, 1 Stat. 469, 470-71, and provided that these offenses

were to be prosecuted in federal or territorial courts, id. § 15.6 Those provisions were

reenacted in the 1802 Act. 1802 Act, §§ 4, 6, 15. And “[iln 1817 federal criminal

jurisdiction was extended to crimes committed within the Indian country by ‘any

Indian, or other person or persons, but ‘any offence committed by one Indian against

another, within any Indian boundary’ was excluded.” Wheeler, 435 U.S. at 324 (citing

Act of Mar. 3, 1817, ch. 92, 3 Stat. 383).

As the Wheeler Court explained, in 1834, “Congress enacted the direct

progenitor of the [GCA], now 18 U.S.C. § 1152 (1976 ed.), which makes federal enclave

6 “When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not

acting as an independent political community like a State, but as ‘an agency of the federal

government.” Wheeler, 435 U.S. at 321 (quoting Domenech v. Natl City Bank, 294 U.S. 199, 204-05

(1935)).

17

criminal law generally applicable to crimes in ‘Indian country,” and in which

“Congress carried forward the intra-Indian offense exception.” Id. at 324-25.7 “And

in 1854 Congress expressly recognized the jurisdiction of tribal courts when it added

another exception to the [GCA], providing that federal courts would not try an Indian

‘who has been punished by the local law of the tribe.” Id. at 324-25 (quoting Act of

Mar. 27, 1854, §3, 10 Stat. 270). Since the 1854 Act, the GCA has not been

substantively amended. And as nothing in its terms confers jurisdiction on the State

over crimes by non-Indians against Indians, federal jurisdiction over such crimes is

exclusive under the GCA.

In sum, this Court’s decision in Worcester established that, under the

Constitution, Congress has exclusive authority over Indian affairs. In ratifying the

Constitution, the states “conferred on [Congress] the exclusive right to regulate

commerce or intercourse with the Indians.” Worcester, 31 U.S. at 590. That remains

the law. Congress’s authority “to legislate in respect to Indian tribes” is “plenary and

exclusive.” United States v. Lara, 541 U.S. 193, 200 (2004); Montana v. Blackfeet

Tribe, 471 U.S. 759, 764 (1985) (“The Constitution vests the Federal Government with

7In Ex Parte Crow Dog, 109 U.S. 556, 571-72 (1883), this Court construed that exception to be a

limitation on federal authority and held that federal jurisdiction did not exist over the murder of an

Indian by another Indian in Indian country. Congress reacted, enacting the Major Crimes Act, 18

U.S.C. § 1153, which provides that “within ‘the Indian country, ‘[alny Indian who commits’ certain

enumerated offenses ‘against the person or property of another Indian or any other person’ ‘shall be

subject to the same law and penalties as all other persons committing any of the above offenses, within

the exclusive jurisdiction of the United States.” McGirt, 140 S. Ct. at 2459 (alteration in original)

(quoting 18 U.S.C. § 1153(a)). The constitutionality of the Major Crimes Act was upheld by this Court

in United States v. Kagama, 118 U.S. 375 (1886), in which the Court ruled that: “These Indian tribes

are the wards of the nation. . . . They owe no allegiance to the states, and receive from them no

protection. ... This has always been recognized by the executive, and by congress, and by this court,

whenever the question has arisen.” Id. at 383-84.

18

exclusive authority over relations with Indian tribes.” (first citing U.S. Const. art. I,

§ 8, cl. 3; then citing Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 670

(1974); and then citing Worcester, 31 U.S. at 561)). And under the Constitution, the

states are “divested of virtually all authority over Indian commerce and Indian

tribes.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 62 (1996). Furthermore, from

the time that the First Congress enacted the 1790 Act up to and including the

enactment of the GCA, Congress has made federal jurisdiction exclusive over crimes

committed by non-Indians against Indians in Indian country.’ While the principles

of Worcester have been modified “[olver the years,” the

basic policy of Worcester has remained. Thus, suits by Indians against

outsiders in state courts have been sanctioned. And state courts have

been allowed to try non-Indians who committed crimes against each

other on a reservation. But if the crime was by or against an Indian,

tribal jurisdiction or that expressly conferred on other courts by Congress

has remained exclusive.

Williams v. Lee, 358 U.S. 217, 219-20 (1959) (emphasis added) (citations omitted).

8 The State argues that “a strong presumption against preemption of state law” applies here, relying

on Wyeth v. Levine, 555 U.S. 555 (2009), and Gulf Offshore v. Mobil Oil Corp., 453 U.S. 473 (1981). Br.

at 20-21. These cases have no application here because, as shown supra at 14-16, under the

Constitution, Congress has exclusive authority in Indian affairs, the states have been divested of all

such authority, and in the absence of express congressional authorization, the State has no jurisdiction

over crimes by or against Indians in Indian country. By contrast, the presumption against pre-emption

is a “rule of construction that rests on an assumption about congressional intent: that “Congress does

not exercise lightly” the “extraordinary power’ to “legislate in areas traditionally regulated by the

States.” Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 14 (2103) (quoting Gregory v. Ashcroft,

501 U.S. 452, 460 (1991)); see United States v. Locke, 529 U.S. 89, 108 (2000) (“[A]n ‘assumption’ of

nonpre-emption is not triggered when the State regulates in an area where there has been a history

of significant federal presence.”). The State also seeks to rely on cases concerning the existence of

state civil jurisdiction over non-Indians on Indian reservations. Br. at 21 & 23n.13. But the rules

that apply to determinations of civil jurisdiction, see Cotton Petroleum Corp. v. New Mexico, 490 U.S.

163 (1989); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Montana v. United States,

450 U.S. 544 (1981), are distinctly different from those that control here. See supra at 14-16.

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3. This Court’s decisions confirm that federal jurisdiction is

exclusive over crimes by non-Indians against Indians in

Indian country.

The State is also wrong in asserting that “this 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.” Br. at

15. As just shown, the GCA grants the State no jurisdiction at all. And for over a

century, this Court’s decisions have consistently recognized and confirmed that

federal jurisdiction over crimes committed by non-Indians against Indians in Indian

country is exclusive.

In Donnelly v. United States, 228 U.S. 243 (1913), the Court rejected the claim

that the state acquired such jurisdiction upon statehood. There, a non-Indian was

charged with the murder of an Indian within the Hoopa Valley Reservation in

California. Relying on McBratney and Draper v. United States, 164 U.S. 240 (1896),

the non-Indian defendant “contended that the admission of California into the Union

‘on an equal footing with the original states, without any express reservation by

Congress of governmental jurisdiction over the public lands contained within her

borders, conferred upon the state undivided authority to punish crimes committed

upon those lands, even when set apart for an Indian reservation, excepting crimes

committed by the Indians,” Donnelly, 228 U.S. at 271. The Court explained that

McBratney and Draper “held, in effect, that the organization and admission of states

qualified the former Federal jurisdiction over Indian country included therein by

withdrawing from the United States and conferring upon the states the control of

offenses committed by white people against whites, in the absence of some law or

20

treaty to the contrary.” Jd. At the same time, the Court emphasized that “[i]n both

cases, however, the question was reserved as to the effect of the admission of the state

into the Union upon the Federal jurisdiction over crimes committed by or against the

Indians themselves.” Id. (first citing McBratney, 104 U.S. at 624; and then citing

Draper, 164 U.S. at 247). Turning to that question, the Court held “[u]Jpon full

consideration, we are satisfied that offenses committed by or against Indians are not

within the principle of the McBratney and Draper Cases.” Id. Thus, McBratney offers

no support for the State’s argument, see Br. at 22, that if certiorari is granted, reversal

is likely. And, as nothing in the GCA confers jurisdiction on the states, federal

jurisdiction over such crimes is exclusive.

In United States v. Ramsey, 271 U.S. 467 (1926), the Court confirmed that

conclusion. There, two non-Indians were charged under section 2145 of the GCA with

murdering an Osage Indian on an Indian allotment. Before turning to consider

whether the allotment was Indian country within the meaning of section 2145, the

Court made clear that while the authority of the United States to punish crimes not

committed by a non-Indian against a non-Indian “was ended by the grant of

statehood[,]” id. at 559-60 (citing McBratney and Draper), the United States’

“authority in respect of crimes committed by or against Indians continued after the

admission of the state as it was before,” id. at 560 (citing Donnelly, 228 U.S. at 271).

That was so, the Court explained, “in virtue of the long-settled rule that such Indians

are wards of the nation, in respect of whom there is devolved upon the federal

government ‘the duty of protection and with the power.” Id. (quoting Kagama, 118

21

U.S. at 384). Accordingly, the law remained, “as it was before,” that federal

jurisdiction over crimes by non-Indians against Indians in Indian country is

exclusive.

In Williams v. United States, 327 U.S. 711 (1946), this Court also made clear

that under the GCA, federal jurisdiction over crimes committed by a non-Indian

against an Indian is exclusive. There, a non-Indian was convicted of rape of a female

Indian minor on the Colorado River Indian Reservation in Arizona. A federal statute

defined the offense to require proof that the victim was under 16 years of age, while

Arizona law defined statutory rape as intercourse with a girl under the age of 18. Id.

at 715-16. Thus, the Court had to decide whether the Assimilative Crimes Act, 18

U.S.C. § 13, incorporated the more lenient Arizona statute into the federal criminal

code, making it applicable to the federal prosecution under the GCA. 327 USS. at

717.2 Before turning to that question, the Court expressly confirmed that federal

jurisdiction over the offense charged was exclusive, holding that:

While the laws and courts of the State of Arizona may have jurisdiction

over offenses committed on this reservation between persons who are

not Indians, the laws and courts of the United States, rather than those

of Arizona, have jurisdiction over offenses committed there, as in this

case, by one who is not an Indian against one who is an Indian.

9 The Assimilative Crimes Act incorporates into the federal criminal code offenses defined by the law

of the state in which the federal land on which the crime alleged to have occurred is located when no

federal statute defines the crime. 18 U.S.C. § 13. In deciding the case, the Court interpreted the

federal laws made applicable to Indian country by the GCA to include the Assimilative Crimes Act but

did so with little explanation. See 327 U.S. at 713-14.

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