Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Case Number: 2021 OK CR 7
Court: Oklahoma Court of Criminal Appeals
Plaintiff's Attorney: Isaac Shields
Defendant's Attorney: Jack E. Gordon, Jr.
Description: ¶1 Michael Eugene Spears was tried by jury in the District Court of Rogers County, Case No. CF-2017-1013, and convicted of First Degree Murder, in violation of 21 O.S.Supp.2012, § 701.7. In accordance with the jury's recommendation, the Honorable Sheila Condren sentenced Spears to life imprisonment with the possibility of parole.
¶2 Spears appeals his Judgment and Sentence raising the following issues:
(1) whether the State of Oklahoma lacked jurisdiction to prosecute him;
(2) whether the evidence was sufficient to prove all elements of first degree murder;
(3) whether he was prejudiced by the admission of improper and speculative expert opinion testimony;
(4) whether the trial court erred in allowing the prosecution to define reasonable doubt; and
(5) whether he received ineffective assistance of counsel.
¶3 Because we find relief is required on Spears's jurisdictional challenge in Proposition 1, his other claims are moot. Spears claims the State of Oklahoma did not have jurisdiction to prosecute him relying upon 18 U.S.C. § 1153 and McGirt v. Oklahoma, 140 S.Ct. 2452 (2020).
¶4 On August 19, 2020, this Court remanded this case to the District Court of Rogers County for an evidentiary hearing. The District Court was directed to make findings of fact and conclusions of law on two issues: (a) Spears's status as an Indian; and (b) whether the crime occurred in Indian Country, namely within the boundaries of the Cherokee Nation Reservation. Our order provided that, if the parties agreed as to what the evidence would show with regard to the questions presented, the parties could enter into a written stipulation setting forth those facts, and no hearing would be necessary.
¶5 On September 28, 2020, the parties appeared for an evidentiary hearing and filed written stipulations. On November 12, 2020, the District Court filed its Findings of Fact and Conclusions of Law. We discuss the stipulations and District Court's Findings of Fact and Conclusions of Law below.
A. The Major Crimes Act
¶6 Title 18 Section 1153 of the United States Code, known as the Major Crimes Act, grants exclusive federal jurisdiction to prosecute certain enumerated offenses committed by Indians within Indian country. It reads in relevant part as follows:
Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, 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.
18 U.S.C. § 1153(a) (2013).
¶7 The first degree murder charge fits squarely within the Major Crimes Act and its exclusive federal jurisdiction.
B. McGirt v. Oklahoma
¶8 Federal statutes asserting federal criminal jurisdiction in Indian country are more than one hundred years old. What has recently changed is the definition of Indian country, within the borders of Oklahoma, for purposes of these statutes. In McGirt v. Oklahoma, 140 S.Ct. 2452 (2020) the Supreme Court held that land set aside for the Muscogee Creek Nation in the 1800's was intended by Congress to be an Indian reservation, and that this reservation exists today for purposes of federal criminal law because Congress never explicitly disestablished it. Although the case now before us involves the lands of the Cherokee Nation, we find McGirt's reasoning controlling.
C. Questions Upon Remand
1. Spears's Status as Indian
¶9 The parties agreed by stipulation that (1) Spears has some Indian blood (2) he was an enrolled member of the Cherokee Nation on the date of the charged offense; and (3) the Cherokee Nation is a federally recognized tribe. The District Court accepted this stipulation and reached the same conclusion in its Findings of Fact and Conclusions of Law.
2. Whether Crime Was Committed in Indian Country
¶10 As to the second question on remand, whether the crime was committed in Indian country, the stipulation of the parties was less dispositive. They agreed only that the charged crime occurred within the historical geographic area of the Cherokee Nation as designated by various treaties.
a. Establishment of the Cherokee Reservation
¶11 In a thorough and well-reasoned order, the District Court examined the 19th century treaties between the Cherokee Nation and the United States of America. The court noted that "[t]he Cherokee treaties were negotiated and finalized during the same period of time as the Creek treaties, contained similar provisions that promised a permanent home that would be forever set apart, and assured a right to self-government on lands that would lie outside both the legal jurisdiction and geographic boundaries of any state."1 The District Court concluded that the current boundaries of the Cherokee Nation are as established in the 1833 Treaty with the Western Cherokee, 1835 Treaty with the Cherokee, 1846 Treaty with the Cherokee, and the 1866 Treaty with the Cherokee.
¶12 The District Court found, "[l]ike Creek treaties, the Cherokee treaties that promised land in Indian Territory to the Cherokee Nation established the tribe's relationships with that land and created a reservation." This finding is consistent with McGirt, where the majority found it "obvious" that a similar course of dealing between Congress and the Creeks had created a reservation, even though that term had not always been used to refer to the lands set aside for them, "perhaps because that word had not yet acquired such distinctive significance in federal Indian law." McGirt, 140 S.Ct. at 2461.
b. Failure to Disestablish the Cherokee Reservation
¶13 "To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress." McGirt, 140 S.Ct. at 2462. No particular words or verbiage are required, but there must be a clear expression of congressional intent to terminate the reservation.
History shows that Congress knows how to withdraw a reservation when it can muster the will. Sometimes, legislation has provided an "[e]xplicit reference to cession" or an "unconditional commitment ... to compensate the Indian tribe for its opened land." Ibid. Other times, Congress has directed that tribal lands shall be "'restored to the public domain.'" Hagen v. Utah, 510 U.S. 399, 412, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994) (emphasis deleted). Likewise, Congress might speak of a reservation as being "'discontinued,'" "'abolished,'" or "'vacated.'" Mattz v. Arnett, 412 U.S. 481, 504, n. 22, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). Disestablishment has "never required any particular form of words," Hagen, 510 U.S., at 411, 114 S.Ct. 958. But it does require that Congress clearly express its intent to do so, "[c]ommon[ly with an] '[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests.'" Nebraska v. Parker, 577 U. S. 481, -------- -- --------, 136 S.Ct. 1072, 1079, 194 L.Ed.2d 152 (2016).
Id. 140 S.Ct. 2462--63.
¶14 The record before the District Court in this case, similar to that in McGirt, shows Congress, through treaties, removed the Cherokee people from one area of the United States to another where they were promised certain lands. Subsequent treaties redefined the geographical boundaries of those lands, but nothing in any of those documents showed a congressional intent to erase the boundaries of the reservation and terminate its existence. Congress, and Congress alone, has the power to abrogate those treaties, and "this Court [will not] lightly infer such a breach once Congress has established a reservation." McGirt, 140 S.Ct. at 2462 (citing Solem v. Bartlett, 465 U.S. 463, 470 (1984)).
¶15 Noting that the State of Oklahoma presented no evidence to show that Congress erased or disestablished the boundaries of the Cherokee Nation Reservation, the District Court found that the Cherokee Reservation remains in existence. This finding is supported by the record.
¶16 We hold that for purposes of federal criminal law, the land upon which the parties agree Spears allegedly committed the crime is within the Cherokee Reservation and is thus Indian country. The ruling in McGirt governs this case and requires us to find the District Court of Rogers County did not have jurisdiction to prosecute Spears. Accordingly, we grant relief based upon argument raised in Proposition 1.
Outcome: ¶17 The Judgment and Sentence of the District Court is VACATED. The matter is REMANDED WITH INSTRUCTIONS TO DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021), the MANDATE is ORDERED to issue in twenty (20) days from the delivery and filing of this decision.