The state of Oklahoma is asking the state’s highest court to determine whether a specific amount of Native American blood is needed in order to challenge the state’s criminal jurisdiction.

In a brief filed Wednesday in a case against Shaun Bosse, a non-Native American man who is on death row for murdering a Chickasaw family in 2010 in McClain County, the state asked the Oklahoma Court of Criminal Appeals to determine whether a certain blood quantum is needed for defendants or victims of a crime are sufficient to prove their Native American status in order for a jurisdictional challenge to be raised.

District 18 District Attorney Chuck Sullivan in October made a similar statement during a remanded evidentiary hearing for Devin Sizemore, a Pittsburg County resident convicted for the 2016 death of his daughter, Emily.

Sullivan brought up Sizemore’s blood quantum being 1/128th “to preserve an argument on the record.”

“There has to be a cutoff somewhere,” Sullivan said.

District 18 District Judge Tim Mills said the argument was beyond the scope of the OCCA’s remand order and he would not make a ruling on the matter.

In the Bosse case, District 21 District Attorney Greg Mashburn brought up the blood quantum of the three murder victims, 23/128, 23/256, and 23/256.

Mashburn wrote in the brief he urged District 21 District Judge Leah Edwards “to consider case law from other jurisdictions requiring a certain blood quantum, generally 1/8 (12.5%), for an individual to be considered Indian for purposes of federal criminal jurisdiction.”

Edwards in her ruling noted that the term “Indian” is not statutory defined and that different courts have made rulings on the definition, but said the OCCA mandated the court to determine whether the three victims “has some Indian blood.”

In the brief to the OCCA, Mashburn said the State “does not advocate a particular blood quantum” nor does the state “seek to define who is, or is not, Indian for any purpose other than criminal jurisdiction.”

Mashburn said the argument is to promote consistency with other courts and to avoid “a jurisdictional loophole.”

The loophole was described as a defendant having his state conviction vacated “only to successfully argue in federal criminal proceedings that he is not Indian due to a low blood quantum and thereby escape justice.”

Arguments were also made that the federal General Crimes Act do not preclude the state’s jurisdiction in the case and the prosecution will not interfere with the federal government’s concurrent jurisdiction “nor does it impinge on tribal sovereignty, but instead advances the interests into state sovereignty.”

Mashburn also wrote in his brief that Bosse’s jurisdictional claims were available to him “long prior to McGirt” and that a claim under the Major Crimes Act or General Crimes Act could have reasonably formulated before that decision.

The state asks the OCCA to deny Bosse’s jurisdictional claim, but if the court decides to grant Bosse’s claim, for a stay in the case to be issued for 30 days for federal officials to secure custody of Bosse.

Contact Derrick James at djames@mcalesternews.com

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