# Magnan v. State > Court of Criminal Appeals of Oklahoma · April 22, 2009 · 207 P.3d 397 URL: https://www.frixlaw.com/law-library/cases/9788292 ## Case - **Full name:** David Brian MAGNAN, Appellant v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** April 22, 2009 - **Citations:** 207 P.3d 397; 2009 OK CR 16; 2009 Okla. Crim. App. LEXIS 13; 2009 WL 1067316 - **Precedential status:** Published - **Opinion:** Dissent by Chapel - **Judges:** Johnson, Lumpkin, Lewis, Chapel - **Cited by:** 21 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled on other grounds by DEO v. PARISH, 541 P.3d 833 (2023). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788292 ## How later opinions describe it (automated extraction) - holding that jurisdiction over major crimes in Indian Country is exclusively federal ## Opinion text *414 CHAPEL, J., dissenting. {1 In Proposition I Magnan claims the state of Oklahoma has no jurisdiction to prosecute him because the murders were committed on Indian land. The majority concludes that the crime scene was not on Indian land and the State had eriminal jurisdiction. I disagree. 2 We remanded the case for an evidentia-ry hearing on this issue. The district court heard evidence from an experienced title examiner attorney, a Superintendent of the Wewoka Agency, Bureau of Indian Affairs (BIA), a Field Solicitor for the Department of the Interior representing the BIA, and the former Deputy Commissioner for Indian Affairs. These witnesses explained in great detail and with documentation why, in their opinion and the opinion of the Bureau of Indian Affairs, the land in question is restricted Indian land. I find their expert arguments persuasive. No evidence before this Court suggests the land is anything other than restricted Indian land. T3 Three separate legal proceedings, in three separate cases over the course of almost forty years, have examined the status of the land where the crimes were committed. However, neither the District Court in this case, nor the federal court in the Wood case, truly made an independent assessment of the evidence presented to them. It is my opinion that they could not have done so, as the expert evidence before them indicated that the property is considered restricted land by the BIA and thus would be outside Oklahoma's jurisdiction. Rather than basing their conclusions on the evidence presented to them, both those courts ultimately rely on a 1970 proceeding in the District Court of Seminole County in which Kizzie Tiger Wolf conveyed the surface rights of the property to the Seminole Nation Housing Authority. That conveyance purported to be in fee simple. The federal experts and the title examiner here all testified that conveyance was improper under federal law. T4 The issue turns on the procedures for conveyance governing the types of ownership interest Tiger Wolf had in the property. Everyone agrees that she had a 1/5 heirship interest, and purchased a 4/5 interest. The federal experts have consistently testified that the applicable federal law treats heirship and purchase interests separately for purpose of conveyance. Heirship interests may be conveyed, under certain cireumstances, without restriction. Purchase interests are restricted, and any conveyance of purchase interests must be approved by the Secretary of the Interior or his designee. The record shows that the Area Director for the BIA was a designee authorized to approve purchase conveyances at the time of the 1970 Seminole County District Court proceeding. However, nothing in the record indicates that Tiger Wolfs purchase interest conveyance was approved by either the BIA Area Director or the Secretary of the Interior. In fact, the record indicates that it was not. 15 The Area Director of the BIA and the Department of the Interior both received notice of the 1970 proceedings. The majority here, like the federal court in Wood, rely on the fact that Dean Storts, a Trial Attorney for the Department of the Interior, acknowledged receipt of the notice, appeared in the District Court of Seminole County, and did not object to the 1970 conveyance. However, testimony at the evidentiary hearing shows that Storts's appearance did not, as the majority holds, satisfy the legal requirements necessary for a proper conveyance of the purchase interest. As a Department of Interior Trial Attorney Storts could represent the federal government's interest insofar as the proceedings were conducted under the statute governing Tiger Wolf's 1/5 heirship interest. He was not delegated to act on the Secretary of the Interior's behalf and approve any conveyance conducted under the statute governing conveyance of the 4/5 restricted purchase interest. His agreement to the proceeding could only have covered the 1/5 heirship interest. The 4/5 restricted purchase interest was still subject to the statute restricting the property subject to approval by the Secretary of the Interior. 1 Thus, the *415 record shows that Storts's presence did not provide authority for the conveyance. Contrary to the majority's conclusion, the 1970 conveyance could not have met the statutory requirements. The fact that the District Court of Seminole County clearly intended a conveyance of the entire property in fee simple is not controlling if that court did not have jurisdiction over all the various property interests. 2 As a matter of law, if conveyance of the 4/5 restricted purchase shares was not approved by the Secretary of the Interior, the state district court did not have jurisdiction over the conveyance. {6 The evidence presented at the eviden-tiary hearing, like the evidence presented to the federal court in Wood, shows that the 1970 Seminole County conveyance was not proper and 4/5 of the interest in the property is still restricted. This makes the property Indian land for jurisdictional purposes. Because I believe the property itself is not within Oklahoma, criminal jurisdiction, I do not reach the argument concerning mineral interests. 17 The majority states that with the Wood decision the United States ceded criminal jurisdiction over this property. For this Court's purposes, that was true only for the Wood case. I believe the Wood case was wrongly decided, based as it was on a state district court conveyance which was improper and not authorized by federal law. This Court may choose to find the Wood decision persuasive in this case, as the majority does. However, I believe we should not rely on an incorrect legal conclusion, no matter how close the issue it presents is to the issue before us. 18 The majority suggests that, if we accept the testimony in this case and decline jurisdiction, no sovereign will have eriminal jurisdiction over the property. That may be the case; it is also possible that if we decline jurisdiction the federal courts may reconsider their position should the issue be presented to them regarding this case. I also note that neither the record nor the majority discuss the possibility of tribal jurisdiction over this property. In any event, our decision to grant or decline jurisdiction must be based, not on the position of any other sovereign, but on whether Oklahoma in fact has jurisdiction. It appears to me from the record of the evidentiary hearing that we do not. I dissent. . I note that Tiger Wolf's probate attorney testified that, at her death in 1991, the Final Decree determining heirs shows the 4/5 purchase interest was restricted. The Decree was based on information in records supplied by the Office of *415 the Field Solicitor of the Department of the Interior. . The 1970 hearing was very brief, and revolved around Tiger Wolf's desire to convey her land to the Housing Authority, which promised to build her a house and return the property. At no time was any issue of the nature of Tiger Wolf's property interests raised or decided. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788292. Public record. Not legal advice.