MICHAEL GARY PARKER, JR., Appellant v. STATE OF OKLAHOMA, Appellee.

¶1 Appellant Michael Gary Parker, Jr. appeals his Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2018-3184, for First Degree Manslaughter, in violation of 21 O.S.2011, § 711.1 Parker's jury unanimously found him guilty, but deadlocked on the issue of punishment. The Honorable William J. Musseman, Jr., District Judge, who presided over Parker's jury trial, sentenced Parker to twenty years imprisonment, with seventeen years to be served in prison and the remaining three years suspended with supervised probation.2 Parker raises seven claims on appeal:



(1) whether his conviction must be reversed because the State failed to prove beyond a reasonable doubt that he was not acting in self-defense;



(2) whether the district court erred by submitting a first degree manslaughter instruction over his objection;



(3) whether he was denied an impartial jury;



(4) whether the district court erred by denying his motion to suppress and admitting his confession at trial;



(5) whether prosecutorial misconduct deprived him of a fair trial;



(6) whether he received the effective assistance of trial counsel; and



(7) whether the district court had jurisdiction of this matter.



We affirm the Judgment and Sentence of the district court.



* * *



¶31 Parker contends that because he is eligible to become a citizen of the Cherokee Nation and the charged crime occurred in Indian country, his case must be dismissed for lack of jurisdiction under McGirt v. Oklahoma, 591 U.S.___, 140 S.Ct. 2452 (2020). In McGirt, the Supreme Court held that land set aside for the Muscogee Creek Nation in the nineteenth century was intended by Congress to be an Indian reservation, and that this reservation remains in existence today for purposes of federal criminal law because Congress has never explicitly disestablished it. Accordingly, Oklahoma lacked jurisdiction to prosecute McGirt, an Indian, because he committed his crimes on the Creek Reservation, i.e. in Indian country, and it is the federal government that has jurisdiction of such criminal matters under the Major Crimes Act (MCA), 18 U.S.C. § 1153. We granted Parker's request to file a supplemental brief raising a jurisdictional challenge in light of McGirt and remanded the matter to the district court to conduct an evidentiary hearing to determine: (1) Parker's Indian status; and (2) whether the crime occurred in Indian country pursuant to United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012); United States v. Prentiss, 273 F.3d 1277, 1280 (10th Cir. 2001); Goforth v. State, 1982 OK CR 48, ¶ 6, 644 P.2d 114, 116.



¶32 This claim turns on the district court's resolution of the first question, namely Parker's Indian status.8 Parker had the burden to prove he is an Indian by producing prima facie evidence that he has some Indian blood and that he was recognized as an Indian by a tribe or the federal government. See State v. Klindt, 1989 OK CR 75, ¶ 5, 782 P.2d 401,403 (holding a defendant has the burden to prove his or her Indian status for dismissal based on lack of jurisdiction). To meet his burden, Parker, who descends from Cherokee Freedmen, advised the district court at an October 15, 2020 status conference that he would be seeking a continuance to conduct DNA testing in an effort to secure evidence to satisfy the "some degree of Indian blood" prong of the Indian status test.9 The State objected, arguing a continuance was unnecessary because Parker could not show he was recognized as Indian by a tribe or the federal government at the time he committed the offense. The district court elected to postpone consideration of Parker's request for DNA testing until it heard evidence and ruled on whether Parker could satisfy the recognition prong of the Indian status test.



¶33 The parties appeared for an evidentiary hearing two weeks later to address the recognition prong. The district court accepted written stipulations from the parties and admitted Parker's Exhibits A-L over limited objection.10 After listening to the parties' arguments, the district court found that Parker failed to show through his admitted exhibits that he was recognized by a federally recognized Indian tribe, namely the Cherokees, or the federal government. The court further found that Parker's failure to present prima facie evidence of his Indian recognition made further litigation on the issue of his blood quantum moot. The district court issued written Findings of Fact and Conclusions of Law, memorializing its narrow ruling, stating:

¶43 The Judgment and Sentence of the district court is AFFIRMED. Parker's Application for Evidentiary Hearing on Sixth Amendment Claim is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is ORDERED issued upon delivery and filing of this decision.



AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY,

THE HONORABLE WILLIAM J. MUSSEMAN, JR.

DISTRICT JUDGE