Petition for Writ of Certiorari — Oklahoma, Petitioner v. Dakota James Alleyn Shriver

NO. 21-_____

In the Supreme Court of the United States

STATE OF OKLAHOMA,

Petitioner,

v.

DAKOTA JAMES ALLEYN SHRIVER,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

PETITION FOR A WRIT OF CERTIORARI

JOHN M. O’CONNOR

ATTORNEY GENERAL

MITHUN MANSINGHANI

SOLICITOR GENERAL

COUNSEL OF RECORD

CAROLINE HUNT

JENNIFER CRABB

ASSISTANT ATTORNEYS GENERAL

BRYAN CLEVELAND

RANDALL YATES

ASSISTANT SOLICITORS GENERAL

OFFICE OF THE OKLAHOMA

ATTORNEY GENERAL

313 N.E. TWENTY-FIRST STREET

OKLAHOMA CITY, OK 73105

(405) 522-4392

MITHUN.MANSINGHANI@OAG.OK.GOV

SEPTEMBER 24, 2021

COUNSEL FOR PETITIONER

i

QUESTION PRESENTED

Whether McGirt v. Oklahoma, 140 S.Ct. 2452

(2020), should be overruled.

ii

LIST OF PROCEEDINGS

Oklahoma Court of Criminal Appeals

No. F-2017-1279

Dakota James Alleyn Shriver, Appellant v.

The State of Oklahoma, Appellee

Date of Final Opinion: April 29, 2021

__________

Oklahoma District Court (Rogers County)

No. CF-2015-395

The State of Oklahoma, Plaintiff v.

Dakota James Alleyn Shriver, Defendant

Date of Judgment and Sentence: December 8, 2017

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PROCEEDINGS .......................................... ii

TABLE OF AUTHORITIES ....................................... v

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 2

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE .................................... 3

REASONS FOR GRANTING THE PETITION ......... 7

CONCLUSION............................................................ 9

iv

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Criminal Appeals,

State of Oklahoma (April 29, 2021) ......................... 1a

District Court of Rogers County,

State of Oklahoma, Order on Remand with

Findings of Fact and Conclusions of Law

(November 12, 2020) ............................................... 12a

Court of Criminal Appeals, State of Oklahoma,

Order Remanding for Evidentiary Hearing

(August 14, 2020) .................................................... 40a

v

TABLE OF AUTHORITIES

TABLE OF AUTHORITIES

CASES

Page

Bosse v. State,

2021 OK CR 23, ___ P.3d ___ ................................. 6

Bosse v. State,

484 P.3d 286 (Okla. Crim. App. 2021) ................. 5

Hogner v. State,

2021 OK CR 4, ¶¶ 1-5, ___ P.3d ___ ....................... 5

McGirt v. Oklahoma,

140 S.Ct. 2452 (2020) ................................... passim

Oklahoma v. Castro-Huerta,

No. 21-429

(Okla. Crim. App. Sept. 21, 2021) ............... 3, 7, 8, 9

STATUTES

18 U.S.C. § 1151 .......................................................... 2

18 U.S.C. § 1153(a) ..................................................... 2

25 U.S.C. § 1302(a)(7) ................................................. 6

28 U.S.C. § 1257(a) ..................................................... 2

JUDICIAL RULES

Sup. Ct. R. 12.7 ........................................................... 3

1

In the Supreme Court of the United States

STATE OF OKLAHOMA,

Petitioner,

V.

DAKOTA JAMES ALLEYN SHRIVER,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

Oklahoma Court of Criminal Appeals

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Oklahoma Court of Criminal

Appeals, dated April 29, 2021, is included in the

Appendix at App.1a-11a. The order of the Oklahoma

Court of Criminal Appeals, dated August 14, 2020,

remanding the case for an evidentiary hearing is

included below at App.40a-44a. The Findings of Fact

and Conclusions of Law of the District Court in and

for Rogers County, State of Oklahoma, dated November

12, 2020, is included below at App.12a-39a. These

opinions and orders were not designated for publication.

2

JURISDICTION

The judgment of the Oklahoma Court of Criminal

Appeals was entered on April 29, 2021. App.1a. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 1151 (in relevant part)

Indian country defined

[T]he term ‘Indian country’, as used in this

chapter, means (a) all land within the limits of

any Indian reservation under the jurisdiction of

the United States Government, notwithstanding

the issuance of any patent, and, including rightsof-way running through the reservation.

18 U.S.C. § 1153(a)

Offenses committed within Indian country

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

3

penalties as all other persons committing any of

the above offenses, within the exclusive jurisdiction of the United States.

STATEMENT OF THE CASE

Thousands of state criminal prosecutions have

been called into question by this Court’s decision in

McGirt v. Oklahoma, 140 S.Ct. 2452 (2020). Like the

pending petition in Oklahoma v. Castro-Huerta, No.

21-429, this case presents the question whether McGirt

should be overruled. For the same reasons given in the

Castro-Huerta petition, review is warranted to examine

that question. The petition for a writ of certiorari in

this case should either be granted or, in the alternative,

held if the petition in Castro-Huerta is granted.

1. In the early morning hours of June 5, 2015,

two different pairs of young people—Noelle New and

Maranda Talley, less than a month removed from

their high school graduations with college scholarships

in hand, and brothers Dakota and Gage Shriver (ages

21 and 19, respectively)—separately decided to head

to their local QuikTrip. Tr. II 389, 403, 423; Tr.VI

1502. The young men, who had been drinking beer

from the two 30-packs respondent had purchased that

evening, left their house in Gage’s pickup and arrived

at the QuikTrip at 3:12 a.m. Tr. V 1194; Tr.VI 1501;

S.E. 208 at 11:57:50. The young women, who had not

been drinking but were suffering from insomnia,



All fact citations are to the transcript of respondent’s trial (Tr.)

and the State’s trial exhibits (S.E.), which are available below.

See Sup. Ct. R. 12.7.

4

decided to walk to QuikTrip to recreate a childhood

memory of the good friends doing the same, years

before. Tr. II 403-04, 421. Noelle and Maranda even

took a picture of themselves as they began their walk,

to memorialize this re-creation. S.E. 12.

Had the young women arrived before the Shrivers

left the QuikTrip at 3:30 a.m., Tr. V 1194, the evening

might have remained a cherished memory. However,

within a half-mile of their destination as they were

walking along the roadway, a black pickup swerved

directly into them without braking—killing Noelle,

who was dragged under the pickup, and seriously

injuring Maranda. Tr. II 403, 413, 467-68, 482; Tr. III

537-48; Tr. V 1145-51; S.E. 1, 3-9. Maranda testified

that when she regained consciousness, she saw two men

“standing by a truck panicking.” Tr. II 408. Maranda

lost consciousness again, and when she came to, the

truck was gone. Tr. II 420. She saw a light at a house

across the street and tried crawling toward it, only

managing to move a couple of feet from where the

truck had thrown her body. Tr. II 420. Maranda was

airlifted to a hospital with severe facial lacerations

and a badly injured leg. Tr. III 627-28; 636-40; S.E. 3-9.

When questioned by police after his wallet was

found at the scene, respondent attempted to blame

Maranda for the events of that morning, saying he

spoke with her at the scene and she said she “had to

[sic] much to drink” at a nearby party earlier that

evening. Tr. III 615-24; Tr. IV 807, 818; Tr. V 1077;

S.E. 72-73, 211. Respondent finally admitted that he

and Gage were arguing as the truck traveled away

from the QuikTrip, that Gage was aggressively beating

the steering wheel, and that he hit Gage in the side of

5

the face, causing the truck to swerve off the road. S.E.

208 at 12:01:35.

Respondent was convicted of second-degree murder,

accessory after the fact, and misdemeanor obstructing

an officer. He was sentenced to twenty-five years

imprisonment, two years imprisonment, and one year

in the county jail, respectively, for these crimes. Respondent then appealed to the Court of Criminal

Appeals.

2. After this Court issued its decision in McGirt,

the Court of Criminal Appeals remanded the case to

the trial court for an evidentiary hearing. On remand,

the court accepted the parties’ stipulations and found

that respondent is an Indian, as an enrolled member

of the Cherokee Nation with 17/128 quantum Cherokee

blood. App.12a-13a, 39a. The court further concluded,

based on McGirt, that the crimes occurred on the

reservation of the Cherokee Nation. App.16a-39a.

The Court of Criminal Appeals reversed the convictions, finding “that pursuant to McGirt, the State

of Oklahoma did not have jurisdiction to prosecute”

respondent. App.7a-8a. The opinion’s author, Judge

Lumpkin, wrote in a footnote that he was bound to

follow McGirt but believed it was wrongly decided.

App.1a-2a.

Two judges wrote separate opinions. Judge Lewis

concurred in the result based on previous concurrences

in which he—in relevant part—explained that McGirt

required reversal. App.10a; see Hogner v. State, 2021

OK CR 4, ¶¶ 1-5, ___ P.3d ___ (Lewis, J., concurring

in results); Bosse v. State, 484 P.3d 286, 299 (Okla.

Crim. App. 2021) (Lewis, J., specially concurring),

6

withdrawn by Bosse v. State, 2021 OK CR 23, ___ P.3d

___.

Judge Hudson specially concurred based on stare

decisis, while reiterating his “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.”

App.11a.

It is the State’s understanding that the federal

government will not pursue charges against respondent.

Any successful prosecution by tribal authorities is

subject to the limitations on tribal penal authority set

forth in federal law. See, e.g., 25 U.S.C. 1302(a)(7).

7

REASONS FOR GRANTING THE PETITION

In the decision below, the Oklahoma Court of

Criminal Appeals applied McGirt to free yet another

criminal from state custody, exacerbating the crisis in

the criminal-justice system in Oklahoma. As the State

of Oklahoma explains in its petition in Castro-Huerta,

reconsideration of McGirt is the only realistic avenue

for ending the ongoing chaos affecting every corner of

daily life in Oklahoma. See Pet. at 17-29, Oklahoma v.

Castro-Huerta, No. 21-429. This case presents yet

another opportunity to end the damage caused by

McGirt. This petition should either be granted or, if

the petition in Castro-Huerta is granted, held pending

a decision in Castro-Huerta and then disposed of as is

appropriate.

As explained more fully in Castro-Huerta, McGirt

was wrongly decided, and the Court’s review is urgently

needed because no recent decision has had a more

immediate and disruptive effect on life in an American

State. McGirt contravened longstanding precedent on

the disestablishment of Indian reservations. 140 S.Ct.

at 2485 (Roberts, C.J., dissenting). It did so by wrongly

reasoning that historical materials showing the original public meaning of statutes may be considered in

the disestablishment inquiry “only” to “clear up”

statutory ambiguity. See id. at 2467-2468, 2469-2470

(majority opinion). But consideration of history is

necessary precisely because it is unclear whether Congress’s alienation of Indian lands at the turn of the

century changed the Indian country status of the land.

See id. at 2488 (Roberts, C.J., dissenting). Under the

correct framework prescribed by this Court’s precedent,

8

it is clear that Congress disestablished the Creek

territory in Oklahoma, as well as the territories of the

four other Oklahoma tribes. And with that conclusion,

it is clear the decision below is incorrect and warrants

reversal.

Overruling McGirt and restoring the state jurisdiction it stripped is important not only for this case

and the victims of the terrible crimes at issue. As the

Chief Justice correctly predicted, the “burdens” of the

McGirt decision on the State of Oklahoma have been

“extraordinary.” 140 S.Ct. at 2500. The challenges from

that seismic shift in jurisdiction have rippled through

every aspect of life in Oklahoma. Most immediately,

McGirt has jeopardized the State’s jurisdiction over

thousands of criminal cases—this case being just one

of them.

The question presented in this case is materially

identical to the second question presented in CastroHuerta. For the compelling reasons explained in the

petition in Castro-Huerta, review on this question is

warranted. Accordingly, the Court should either grant

review in this case or hold the petition pending the

resolution of the second question presented in CastroHuerta.

9

CONCLUSION

The petition for a writ of certiorari should be

granted. In the alternative, if the petition in CastroHuerta is granted, the petition in this case should be

held pending a decision there and then disposed of as

is appropriate.

Respectfully submitted,

JOHN M. O’CONNOR

ATTORNEY GENERAL

MITHUN MANSINGHANI

SOLICITOR GENERAL

COUNSEL OF RECORD

CAROLINE HUNT

JENNIFER CRABB

ASSISTANT ATTORNEYS GENERAL

BRYAN CLEVELAND

RANDALL YATES

ASSISTANT SOLICITORS GENERAL

OFFICE OF THE OKLAHOMA

ATTORNEY GENERAL

313 N.E. TWENTY-FIRST STREET

OKLAHOMA CITY, OK 73105

(405) 522-4392

MITHUN.MANSINGHANI@OAG.OK.GOV

COUNSEL FOR PETITIONER

SEPTEMBER 24, 2021