stating general rale that “the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country”
How later courts described this case
- stating general rale that “the State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country”
- overruling Ex Parte Nowabbi, 60 Okla.Crim. 111, 61 P.2d 1139 (App.1936) and holding State of Oklahoma never assumed criminal and civil jurisdiction over any “Indian country” within its borders
- holding a defendant has the burden to prove his or her Indian status for dismissal based on lack of jurisdiction
- “There is ample evidence to indicate that the Nowabbi Court misinterpreted the statutes and cases upon which it based its opinion. ... Nowabbi is hereby overruled.”
Written by the judges who cited it.
The opinion
PARKS, Presiding Judge,
concurs in result:
Appellee claims that 18 U.S.C. § 1152 excludes him from the jurisdiction of the State. 18 U.S.C. § 1152 provides:
“Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipultions, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.”
Appellee is using the exclusionary language of this section as an affirmative defense. The general rule is that once a criminal defendant satisfies his burden or production with respect to an affirmative defense, the prosecution must prove the inapplicability of this defense beyond a reasonable doubt. United States v. Guess, 629 F.2d 573 , 577 n. 4 (9th Cir.1980).
Appellee should only be required to produce evidence that he is a member of a federally recognized tribe. Thereafter, the ultimate burden or proof remains on the prosecution. See United States v. Hester, 719 F.2d 1041, 1043 (9th Cir.1983). Therefore, I disagree with the majority opinion to the extent that it requires appellee to “establish” that he is an Indian. The ultimate burden or proving appellee’s status rests with the State.