Petition for Writ of Certiorari — Oklahoma, Petitioner v. Robert William Perry, II

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Criminal Appeals,

State of Oklahoma (April 1, 2021) ........................... 1a

District Court of Tulsa County, State of Oklahoma,

Findings of Fact and Conclusions of Law (Signed

November 13, 2020, Filed November 16, 2020) ..... 11a

Evidentiary Hearing Stipulations

(November 5, 2020) .......................................... 17a

Court of Criminal Appeals, State of Oklahoma,

Order Remanding for Evidentiary Hearing

(October 7, 2020) ..................................................... 22a

App.1a

OPINION OF THE COURT OF CRIMINAL

APPEALS, STATE OF OKLAHOMA

(APRIL 1, 2021)

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

________________________

ROBERT WILLIAM PERRY, II,

Appellant,

v.

THE STATE OF OKLAHOMA,

Appellee.

________________________

Case No. F-2020-46

Before: Dana KUEHN, President Judge.,

Scott ROWLAND, Vice President Judge.,

Gary L. LUMPKIN, Judge., David B. LEWIS, Judge.,

Robert L. HUDSON, Judge.

SUMMARY OPINION

LEWIS, JUDGE:

Robert William Perry, II, Appellant, was tried by

jury and found guilty of five counts of sexual abuse of

a child under 12, in violation of 21 O.S.Supp.2014,

843.5 (counts 1, 2, and 4-6 of the information) in the

District Court of Tulsa County, Case No. CF-20183720, before the Honorable Kelly Greenough, District

App.2a

Judge. The jury set punishment at, count one, thirtyfive years, count two, forty years, and counts four,

five and six, life imprisonment on each count. Judge

Greenough sentenced accordingly ordering that the

sentences for counts one, four, five and six be served

concurrently to each other and that count two be

served be served consecutively with those counts.

Perry filed a direct appeal and, thereafter a supplemental brief and motion for evidentiary hearing

arguing that the State of Oklahoma did not have

subject matter jurisdiction to prosecute him.

We find relief is required on Perry’s jurisdictional

challenge. Perry’s claim is supported by 18 U.S.C.

§ 1153 and McGirt v. Oklahoma, 591 U.S. ___, 140 S.

Ct. 2452 (2020).

Because there was insufficient evidence in the

original record and Perry raised sufficient proof in

his motion for evidentiary hearing, this Court remanded

this case to the District Court of Tulsa County on

October 7, 2020, for an evidentiary hearing. The District Court was directed to make findings of fact and

conclusions of law on two issues: (a) Perry’s status as

an Indian; and (b) whether the crimes occurred

within the boundaries of the Muscogee (Creek) Nation

Reservation. Our order provided that, if the parties

agreed upon evidentiary matters supporting the

questions raised, the parties could enter into written

stipulation setting forth those facts.

The parties appeared at the Tulsa County District

Court before the Honorable Tracy L. Priddy, District

Judge, on November 5, 2020, and made the following

stipulations regarding question one, (1) that evidence

would show that Perry became a registered citizen of

the Muscogee (Creek) Nation on November 10, 2011,

App.3a

and was so registered at the time of the commission

of these crimes; (2) that evidence would show that

Perry has a 1/128 quantum of Creek blood; and finally

(3) evidence would show that the Muscogee (Creek)

Nation is a federally recognized tribe. Regarding

question two, the parties stipulated that the evidence

would show that the location of the crimes were within

the historical boundaries of the Muscogee (Creek)

Nation Reservation.

The trial court filed its findings of fact and conclusions of law on November 16, 2020. The District Court

found the facts recited above in accordance with the

stipulation. The District Court concluded that Perry

is an Indian under law and that the crimes occurred

within the boundaries of the Muscogee (Creek) Nation

Reservation. The District Court’s findings are supported by the record. The ruling in McGirt governs

the case and requires us to find the District Court of

Tulsa County did not have jurisdiction to prosecute

Perry. Accordingly, we hold that Perry’s jurisdictional

challenge is supported and this case should be dismissed.

DECISION

The judgment and sentence of the District Court is

REVERSED AND 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.

App.4a

APPEAL FROM THE DISTRICT COURT OF

TULSA COUNTY THE HONORABLE KELLY

GREENOUGH, DISTRICT JUDGE

APPEARANCES AT TRIAL

Nick Southerland

Lindsey Holguin

423 S. Boulder Ave., Ste. 300

Tulsa, OK 74103

Attorneys for Defendant

Katie Koljack

Asst. District Attorney

500 S. Denver, Ste. 900

Tulsa, OK 74103

Attorney for the State

APPEARANCES ON APPEAL

Adam Barnett

Stuart Southerland

423 S. Boulder Ave., Ste. 300

Tulsa, OK 74103

Attorneys for Appellant

Mike Hunter

Attorney General

Jennifer Crabb

Julie Pittman

Randall Young

Asst. Attorney General

313 N.E. 21st Street

Oklahoma City, OK 73105

App.5a

James Dunn

Asst. District Attorney

500 S. Denver, Ste. 900

Tulsa, OK 74103

Attorneys for Appellee

Opinion by: Lewis, J.

Kuehn, P.J.: Concur

Rowland, V.P.J. Concur in Result

Lumpkin, J.: Concur in Result

Hudson, J.: Specially Concur

App.6a

ROWLAND, VICE PRESIDING JUDGE,

CONCURRING IN RESULTS

I concur in the result of today’s opinion. However,

consistent with my separate opinion in Bosse v.

State, 2021 OK CR 3, ____ 3d ____. I would find that

the State lacked territorial jurisdiction and not subject

matter jurisdiction.

App.7a

LUMPKIN, JUDGE:

CONCURRING IN RESULTS:

Bound by my oath and the Federal-State relationships dictated by the U.S. Constitution, I must at a

minimum concur in the results of this opinion. While

our nation’s judicial structure requires me to apply

the majority opinion in the 5-4 decision of the U.S.

Supreme Court in McGirt v. Oklahoma, ___ U.S. ___,

140 S. Ct. 2452 (2020), I do so reluctantly. Upon the

first reading of the majority opinion in McGirt I

initially formed the belief that it was a result in

search of an opinion to support it. Then upon reading

the dissents by Chief Justice Roberts and Justice

Thomas I was forced to conclude the Majority had

totally failed to follow the Court’s own precedents,

but had cherry picked statutes and treaties, without

giving historical context to them. The Majority then

proceeded to do what an average citizen who had

been fully informed of the law and facts as set out in

the dissents would view as an exercise of raw judicial

power to reach a decision which contravened not only

the history leading to the disestablishment of the

Indian reservations in Oklahoma, but also willfully

disregarded and failed to apply the Court’s own precedents to the issue at hand.

My quandary is one of ethics and morality. One

of the first things I was taught when I began my service

in the Marine Corps was that I had a duty to follow

lawful orders, and that same duty required me to

resist unlawful orders. Chief Justice Roberts’ scholarly

and judicially penned dissent, actually following

the Court’s precedents and required analysis, vividly

reveals the failure of the majority opinion to follow

App.8a

the rule of law and apply over a century of precedent

and history, and to accept the fact that no Indian

reservations remain in the State of Oklahoma.1 The

result seems to be some form of “social justice”

created out of whole cloth rather than a continuation

1 Senator Elmer Thomas, D-Oklahoma, was a member of the

Senate Committee on Indian Affairs. After hearing the Commissioner’s speech regarding the Indian Reorganization Act

(IRA) in 1934, Senator Thomas opined as follows:

I can hardly see where it (the IRA) could

operate in a State like mine where the Indians

are all scattered out among the whites and they

have no reservation, and they could not get

them into a community without you would go

and buy land and put them on it. Then they

would be surrounded very likely with thickly

populated white section with whom they would

trade and associate. I just cannot get through

my mind how this bill can possibly be made to

operate in a State of thickly-settled population.

(emphasis added).

John Collier, Commissioner of Indian Affairs, Memorandum of

Explanation (regarding S. 2755), p. 145, hearing before the

United States Senate Committee on Indian Affairs, February

27, 1934. Senator Morris Sheppard, D-Texas, also on the Senate

Committee on Indian Affairs, stated in response to the Commissioner’s speech that in Oklahoma, he did not think “we could

look forward to building up huge reservations such as we have

granted to the Indians in the past? Id. at 157. In 1940, in the

Foreword to Felix S. Cohen, Handbook of Federal Indian Law

(1942), Secretary of the Interior Harold Ickes wrote in support

of the IRA, “[t]he continued application of the allotment laws,

under which Indian wards have lost more than two-thirds of

their reservation lands, while the costs of Federal administration of these lands have steadily mounted, must be terminated?

(emphasis added).

App.9a

of the solid precedents the Court has established

over the last 100 years or more.

The question I see presented is should I blindly

follow and apply the majority opinion or do I join with

Chief Justice Roberts and the dissenters in McGirt

and recognize “the emperor has no clothes” as to the

adherence to following the rule of law in the application of the McGirt decision?

My oath and adherence to the Federal-State

relationship under the U.S. Constitution mandate

that I fulfill my duties and apply the edict of the

majority opinion in McGirt. However, I am not required

to do so blindly and without noting the flaws of the

opinion as set out in the dissents. Chief Justice Roberts

and Justice Thomas eloquently show the Majority’s

mischaracterization of Congress’s actions and history

with the Indian reservations. Their dissents further

demonstrate that at the time of Oklahoma Statehood

in 1907, all parties accepted the fact that Indian

reservations in the state had been disestablished and

no longer existed. I take this position to adhere to my

oath as a judge and lawyer without any disrespect to

our Federal-State structure. I simply believe that when

reasonable minds differ they must both be reviewing

the totality of the law and facts.

App.10a

HUDSON, JUDGE, SPECIALLY CONCURS:

Today’s decision dismisses five separate convictions

for sexual abuse of a child under 12 from the District

Court of Tulsa County based on the Supreme Court’s

decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).

This decision is unquestionably correct as a matter of

stare decisis based on the Indian status of Appellant

and the occurrence of the crimes on the Creek Reservation. Under McGirt, the State has no jurisdiction

to prosecute Appellant for the child sexual abuse in

this case. Instead, Appellant must be prosecuted in

federal court. I therefore as a matter of stare decisis

fully concur in today’s decision. Further, I maintain

my previously expressed views on the significance of

McGirt, its far-reaching impact on the criminal justice

system in Oklahoma and the need for a practical

solution by Congress. See Bosse v. State, 2021 OK CR

3, ___ P.3d ___ (Hudson, J., Concur in Results);

Hogner v. State, 2021 OK CR 4, ___ P.3d ___ (Hudson,

J., Specially Concurs); and Krafft v. State, No. F2018-340 (Okl. Cr., Feb. 25, 2021) (Hudson, J., Specially

Concurs) (unpublished).

App.11a

DISTRICT COURT OF TULSA COUNTY,

STATE OF OKLAHOMA, FINDINGS OF

FACT AND CONCLUSIONS OF LAW

(SIGNED NOVEMBER 13, 2020,

FILED NOVEMBER 16, 2020)

IN THE DISTRICT COURT IN AND FOR

TULSA COUNTY, STATE OF OKLAHOMA

________________________

ROBERT WILLIAM PERRY, II,

Appellant,

v.

THE STATE OF OKLAHOMA,

Appellee.

________________________

Tulsa County District Court Case No. CF-2018-3720

Court of Criminal Appeals Case No. F-2016-46

Before: Tracy PRIDDY, District Judge.

This matter came on for a status conference on

November 5, 2020 pursuant to the remand order of

the Oklahoma Court of Criminal Appeals (“OCCA”)

issued October 14, 2020. Stuart Southerland appeared

on behalf of Appellant, Robert William Perry, II,

whose appearance was waived. Assistants Attorney

General Julie Pittman and Randall Young appeared

for Appellee. Tulsa County Assistant District Attorney

James Dunn also appeared. An evidentiary hearing

App.12a

was not held pursuant to the parties’ announcement

that they had agreed and stipulated to facts supporting

the issues to be determined by this Court.

The Appellant, in his supplemental brief claims

that the District Court lacked jurisdiction to try him

as he is a citizen of the Muscogee Creek Nation and

the crimes occurred within the boundaries of the Creek

Nation [Reservation]. Appellant’s claim raises two

questions: (a) his Indian status, and (b) whether the

crime occurred in the Creek Nation [Reservation].

These issues require fact-finding to be addressed by

the District Court per the OCCA Order Remanding.

I.

Appellant’s status as an Indian

To determine the Indian status of the Appellant,

the OCCA directed the District Court to make findings

of fact as to whether (1) Appellant has some Indian

blood, and (2) is recognized as an Indian by a tribe or

the federal government.1 The Court finds as follows:

Findings of Fact

1. Robert William Perry, II is the named Defendant/Appellant in the above-entitled matter.

2. The parties stipulated that a representative

of the Muscogee (Creek) Nation Citizenship Office

would testify that Robert William Perry, II is a

registered citizen of the Muscogee (Creek) Nation

when the crimes that he was convicted of committing

herein occurred. Robert William Perry II has been a

1 United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012);

United States v. Prentiss, 273 F.3d 1277, 1280-81 (10th Cir. 2001).

Generally Goforth v. State, 1982 OK CR 48, ¶ 6, 644 P.2d 114, 116.

App.13a

citizen of the Muscogee (Creek) Nation since November

10, 2011.2

3. The parties stipulated that a representative

of the Muscogee (Creek) Nation Citizenship Office

would testify that Robert William Perry, II has 1/128

quantum of Creek blood, as indicated in a letter

dated August 2020.3

4. The parties stipulated that the Muscogee

(Creek) Nation is a federally recognized tribe.4

Conclusions of Law

Regarding the first determination, the Court

answers the first inquiry in the affirmative. The

Court adopted the Evidentiary Hearing Stipulations

including the attached documentation filed by the

parties on November 5, 2020 and made findings of

fact thereon. Robert William Perry, II is the named

Defendant in this matter and he has 1/128 quantum

of Creek blood. Although the term “Indian” is not

statutorily defined and various terms such as “sufficient”5, “substantial”6, “significant percentage of”7 or

“some”8 have been used by courts in an attempt to

2 Exhibit 1, Evidentiary Hearing Stipulations 1.

3 Exhibit 1, Evidentiary Hearing Stipulations 2.

4 Exhibit 1, Evidentiary Hearing Stipulations 3.

5 United States v. LaBuff, 658 F.3d 873, 874-75 (9th Cir. 2011)

6 Vialpando v. State, 640 P.2d 77, 79-80 (Wyo. 1982).

7 Goforth v. State, 1982 OK CR 48,116, 644 P.2d 114, 116.

8 United States v. Diaz, 679 F.3d 1183, 1187 (10th Or. 2012).

App.14a

define the quantity of Indian Blood required to satisfy

this inquiry, the OCCA mandate ordered this Court

to determine “whether Appellant has some Indian

blood.”9 Thus, according to the term used by the

OCCA in its Order, this Court concludes Robert

William Perry, II, the named Defendant/Appellant,

has some Indian blood.

Additionally, the Court answers the second part

of the inquiry in the affirmative. The Court adopted

the Evidentiary Hearing Stipulations including the

attached documentation and made findings of fact

thereon. Robert William Perry, II has been recognized

as a citizen of the Muscogee (Creek) Nation since

November 10, 2011 and was recognized as a citizen

of the Muscogee (Creek) Nation at the time of the

offenses. Finally, the Muscogee (Creek) Nation is a

federally recognized tribe. Therefore, Robert William

Perry, II is recognized as an Indian by a tribe or the

federal government.

Having answered both inquiries in the affirmative,

this Court concludes Robert William Perry, II is an

Indian.

II. Whether the Crime Occurred in Indian

Country

The OCCA further ordered the District Court to

determine whether the crime occurred within the

boundaries of the Creek Reservation, referred to as

Indian Country.10 The Court finds as follows:

9 Order Remanding for Evidentiary Hearing October 14, 2020.

10 McGirt v. Oklahoma, 140 S. Ct.2452 (2020); 18 U.S.C. §§ 1152,

1153.

App.15a

Findings of Fact

The parties stipulated that if the victim of the

crimes that Robert William Perry II was convicted of

committing was called as a witness she would testify

that the offenses occurred at 4020 S. 130th East Apt.

201 in Tulsa, Oklahoma and 4915 South Utica Ave.,

Apt. B in Tulsa, Oklahoma.11

The parties stipulated that 4020 S. 130th East

Apt. 201 in Tulsa, Oklahoma and 4915 South Utica

Ave., Apt. B are both within the boundaries of Creek

(Muscogee) Nation.12

Conclusions of Law

The final inquiry is answered in the affirmative.

This Court adopted the parties’ Evidentiary Hearing

Stipulations and made findings of fact thereon. The

crime occurred at two different locations each identified

by a specific address that is within the boundaries of

the Creek Nation’s Reservation. These boundaries

were established through a series of treaties between

the Creek Nation and the United States, and are

explicitly recognized as a reservation defined by 18

U.S.C. § 1151(a). This Court concludes that the crimes

for which Defendant/Appellant was convicted occurred

within the Creek Nation [Reservation]. Based upon

the Supreme Court’s ruling in McGirt v. Oklahoma,

140 S. Ct. 2452, 207 L.Ed.2d 985 (2020), the Creek

Nation Reservation is Indian Country.

11 Exhibit 1, Evidentiary Hearing Stipulations 4.

12 Exhibit 1, Evidentiary Hearing Stipulations 5.

App.16a

WHEREFORE, this Court finds that Robert

William Perry, II is an Indian and the crimes for which

he was convicted occurred in Indian Country for purposes of the General Crimes Act, 18 U.S.C. § 1152

and the Major Crimes Act, 18 U.S.C. § 1153.

IT IS SO ORDERED this 13th day of November,

2020.

/s/ Tracy Priddy

District Judge

App.17a

EVIDENTIARY HEARING STIPULATIONS

(NOVEMBER 5, 2020)

IN THE DISTRICT COURT IN AND FOR

TULSA COUNTY, STATE OF OKLAHOMA

________________________

STATE OF OKLAHOMA,

Plaintiff/Appellee.

v.

ROBERT WILLIAM PERRY II,

Defendant/Appellant,

________________________

Case No. CF-2018-3720, F-2020-46

The parties stipulate that if witnesses were called

to testify at an evidentiary hearing ordered by the

Oklahoma Court of Criminal Appeals by way of a

written order dated October 7, 2020 that the witnesses

would testify as follows:

1. A representative of the Muscogee (Creek)

Nation Citizenship Office would testify that Robert

William Perry II was a registered citizen of the

Muscogee (Creek) Nation when the crimes that he

was convicted of committing herein occurred. Robert

William Perry II has been a citizen of the Muscogee

(Creek) Nation since November 10, 2011. His Roll

Number is 90663.

App.18a

2. A representative of the Muscogee (Creek)

Nation Citizenship Office would testify that Robert

William Perry II has 1/128 quantum of Creek blood,

as indicated in a letter dated August 18, 2020.

3. The parties stipulate that Muscogee (Creek)

Nation is a federally recognized tribe.

4. The parties stipulate that if the victim of the

crimes that Robert William Perry II was convicted of

committing was called as a witness she would testify

that the offenses occurred at 4020 S. 130th East Apt.

201 in Tulsa, Oklahoma and 4915 South Utica Ave.,

Apt. B in Tulsa, Oklahoma.

5. The parties further stipulate that 4020 S. 130th

East Ave. Apt. 201 and 4915 South Utica Ave., Apt. B

are both within the boundaries of Creek (Muscogee)

Nation.

SIGNED THIS 5th DAY OF November, 2020.

Respectfully submitted,

/s/ Randall Young

Assistant Attorney General

Counsel for Plaintiff/ Appellee,

State of Oklahoma

/s/ Erik Greyless

Tulsa County District Attorney’s Office

Counsel for Plaintiff/Appellee,

State of Oklahoma

App.19a

/s/ Stuart W. Southerland

Tulsa County Public Defender’s Office

Counsel for Defendant/Appellant,

Robert William Perry, II

App.20a

MUSCOGEE (CREEK)

NATION ENROLLMENT VERIFICATION

(AUGUST 18, 2020)

MUSCOGEE (CREEK) NATION

ENROLLMENT VERIFICATION

Date: 8/18/2020

To: Whom it May Concern

From: Muscogee (Creek) Nation

Citizenship Board

P.O. Box 580

Okmulgee, OK 74447

Subject: Enrollment Verification

Re: Name: Robert William Perry, II

Address: 5027 S 35th West Ave

Tulsa OK 74107-7433

Birthdate: 6/22/1990

Enrollment Date: November 10, 2011

Roll Number: 90663

Degree of Creek Blood: 1/128

I hereby certify that Robert William Perry, II,

DOB: 6/22/1990 is enrolled with the Muscogee (Creek)

Nation. Enrollment Date: 11/10/2011 Roll Number:

90663, Degree of Creek Blood: 1/128.

App.21a

Sincerely,

/s/ Nathan Wilson

Director

Muscogee (Creek) Nation

Citizenship Office

App.22a

COURT OF CRIMINAL APPEALS,

STATE OF OKLAHOMA, ORDER

REMANDING FOR EVIDENTIARY HEARING

(OCTOBER 7, 2020)

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

________________________

ROBERT WILLIAM PERRY, II,

Appellant,

v.

STATE OF OKLAHOMA,

Appellee.

________________________

Case No. F-2020-46

Before: David B. LEWIS, Presiding Judge.,

Dana KUEHN, Vice President Judge.,

Gary L. LUMPKIN, Judge., Robert L. HUDSON,

Judge., Scott ROWLAND, Judge.

ORDER GRANTING APPELLANT'S MOTION

FOR SUPPLEMENTATION OF RECORD

AND REQUEST TO REMAND FOR

EVIDENTIARY HEARING; REMANDING

MATTER FOR EVIDENTIARY HEARING; AND

GRANTING STATE'S MOTION TO STAY

BRIEFING SCHEDULE PENDING OUTCOME

OF EVIDENTIARY HEARING

App.23a

Appellant Perry filed his brief in chief on June 1,

2020, appealing from his conviction in Tulsa County

Case No. CF-2018 3720. On August 24, 2020, Perry’s

Motion for Supplementation of the Record and Request

to Remand for Evidentiary Hearing (Motion for

Supplementation) was filed with this Court, challenging

the State’s subject-matter jurisdiction pursuant to

the Supreme Court’s decision in McGirt v. Oklahoma,

Case No. 18-9526, 591 U.S. ___ (2020), 2020 WL

3848063. Perry requests this Court remand the matter

for an evidentiary hearing on that claim. That same

date, Perry tendered his supplemental brief for filing,

and filed a motion for leave to file the supplemental

brief out of time.

On September 29, 2020, the State of Oklahoma,

by and through Mike Hunter, Attorney General of

the State of Oklahoma, filed a motion to stay briefing

schedule and request for evidentiary hearing. The

State’s response brief was due September 29, 2020.

The State alleges that Perry’s Motion for Supplementation and tendered brief raise the issue of subjectmatter jurisdiction, claiming that he is an enrolled

member of the Muscogee Creek Nation and that the

crimes were committed on Creek tribal land. The

State alleges it has investigated these claims and has

determined that Perry is an enrolled member of the

Muscogee Creek Nation, having 1/128 blood quantum;

that he was an enrolled member at the time the crimes

were committed; and that the crimes occurred on

Creek tribal land.

Due to the McGirt decision, the State alleges, in

light of the stipulated facts, it must be determined if

Perry is an Indian who committed major crimes on

App.24a

an Indian reservation. The State requests briefing in

this matter be stayed pending this Court’s ruling on

Perry’s motion to supplement and his request for an

evidentiary hearing.

IT IS THEREFORE THE ORDER OF THIS

COURT that Appellant Perry’s Motion to Supplement

the Record and Request to Remand for Evidentiary

Hearing is GRANTED. The Clerk of this Court is

DIRECTED to file Perry’s tendered Supplemental

Brief Regarding Subject-Matter Jurisdiction. The

State’s motion to stay briefing schedule pending the

outcome of the evidentiary hearing is GRANTED.

In his supplemental brief, Appellant claims the

District Court lacked jurisdiction to try him. Appellant

argues that he is a citizen of the Muscogee Creek

Nation and the crimes occurred within the boundaries

of the Creek Nation. Appellant relies on McGirt v.

Oklahoma, No. 18-9526 (U.S. July 9, 2020).

Appellant’s claim raises two separate questions:

(a) his Indian status and (b) whether the crime

occurred in the Creek Nation. These issues require

fact-finding. We therefore REMAND this case to the

District Court of Tulsa County, for an evidentiary

hearing to be held within sixty (60) days from the

date of this Order.

Recognizing the historical and specialized nature

of this remand for evidentiary hearing, we request

the Attorney General and District Attorney work in

coordination to effect uniformity and completeness in

the hearing process. Upon Appellant’s presentation

of prima facie evidence as to the Appellant’s legal

status as an Indian and as to the location of the

App.25a

crime in Indian Country, the burden shifts to the

State to prove it has subject matter jurisdiction.

The hearing shall be transcribed, and the court

reporter shall file an original and two (2) certified

copies of the transcript within twenty (20) days after

the hearing is completed. The District Court shall

then make written findings of fact and conclusions of

law, to be submitted to this Court within twenty (20)

days after the filing of the transcripts in the District

Court. The District Court shall address only the

following issues.

First, the Appellant’s status as an Indian. The

District Court must determine whether (1) Appellant

has some Indian blood, and (2) is recognized as an

Indian by a tribe or the federal government.1

Second, whether the crime occurred within the

boundaries of the Creek Nation. In making this determination the District Court should consider any

evidence the parties provide, including but not limited

to treaties, statutes, maps, and/or testimony.

The District Court Clerk shall transmit the record

of the evidentiary hearing, the District Court’s findings of fact and conclusions of law, and any other

materials made a part of the record, to the Clerk of

this Court, and counsel for Appellant, within five (5)

days after the District Court has filed its findings of

fact and conclusions of law. Upon receipt thereof, the

Clerk of this Court shall promptly deliver a copy of

that record to the Attorney General. A supplemental

1 See Goforth v. State, 1982 OK CR 48, ¶ 6, 644 P.2d 114, 116.

See also United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012);

United States v. Prentiss, 273 F.3d 1277, 1280-81 (10th Cir. 2001).

App.26a

brief, addressing only those issues pertinent to the

evidentiary hearing and limited to twenty (20) pages

in length, may be filed by either party within twenty

(20) days after the District Court’s written findings

of fact and conclusions of law are filed in this Court.

Provided however, in the event the parties agree

as to what the evidence will show with regard to the

questions presented, they may enter into a written

stipulation setting forth those facts upon which they

agree and which answer the questions presented and

provide the stipulation to the District Court. In this

event, no hearing on the questions presented is necessary. Transmission of the record regarding the matter,

the District Court’s findings of fact and conclusions

of law and supplemental briefing shall occur as set

forth above.

IT IS FURTHER ORDERED that the Clerk of

this Court shall transmit copies of the following, with

this Order, to the District Court of Tulsa County:

Appellant’s Brief in Chief filed June 1, 2020 and his

Supplemental Brief tendered for filing August 24,

2020 and filed contemporaneously with this order.

The Clerk of this Court is DIRECTED to transmit

a copy of this Order to the Court Clerk of Tulsa

County; the District Court of Tulsa County, the

Honorable Kelly Greenough, District Judge; Appellant,

the State of Oklahoma, and all counsel of record.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF

THIS COURT this 7th day of October, 2020.

App.27a

/s/ David B. Lewis

Presiding Judge

/s/ Dana Kuehn

Vice Presiding Judge

/s/ Gary L. Lumpkin

Judge

/s/ Robert L. Hudson

Judge

/s/ Scott Rowland

Judge

ATTEST:

/s/ John D. Hadden

Clerk