Petition for Writ of Certiorari — Kenneth Lynn Funkhouser, Petitioner v. Oklahoma

Supreme Court briefJan 20, 2022

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APPENDIX A

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

FILED

KENNETH LYNN FUNKHOUSER,

NOV 3 0 2021

Petitioner,

I JOHN D. HADDEN

CLERK

No. PC-2021-597

STATE OF OKLAHOMA,

Respondent.

ORDER AFFIRMING DENIAL OF POST-CONVICTION RELIEF

Petitioner, through counsel Debra K. Hampton, appeals the

denial of post-conviction relief by the District Court of Tulsa County in

Case No. CF-1983-133. Before the District Court, Petitioner asserted

he was entitled to relief pursuant to McGirt v. Oklahoma, 140 S.Ct.

2452 (2020). In State ex net Matloffv. Wallace, 2021 OK CR 21,__

P.3d__ , this Court determined that the United States Supreme Court

decision in McGirt, because it is a new procedural rule, is not

retroactive and does not void final state convictions. See Matloff, 2021

OK CR21,mi 27-28, 40.

The conviction in this matter was final before the July 9, 2020

decision in McGirt, and the United States Supreme Court’s holding in

PC-2021-597, FUnkhouser v. State

McGirt does not apply. Therefore, the District Court’s order denying

post-conviction relief is AFFIRMED. Pursuant to Rule 3.15, Rules of

the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021),

the MANDATE is ORDERED issued upon the delivery and filing of

this decision.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this

—3 &

day of

A/ov-t/ly JotAJ

_, 2021.

ZcflC)

SCOTT ROWLAND, Presiding Judge

T d., /

ROBERT!* riUDS

Vice Presiding Judge

GARY L/ LU:

:n, Judge

DAVID B. L!

Judge

ATTEST:

D, JhjJUn**

Clerk

FILiD

IN COURT OF CRIMINAL APPEALS

STATE OF OKLAHOMA

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

APPENDIX B

JUN 16 2021

KENNETH L. FUNKHOUSER,

Petitioner,

)

-vsTHE STATE OF OKLAHOMA,

Respondent.

JOHN D. HADDEN

GLERK

2021 597

District Court of Tulsa County

Case No. CRF-1983-133

PETITION IN ERROR

COMES NOW, the Petitioner, KENNETH L. FUNKHOUSER, by and through counsel,

Debra K. Hampton, and submits his Petition in Error.

This Post-Conviction Appeal arises from a regular felony conviction in the District

Court of Tulsa County Case No. CRF-1983-133, for the crimes of:

Count 1: Murder I,

Count 2: Robbery with a firearm,

Count 3: Robbery with a firearm.

Count 4: Robbery with a firearm,

21 O.S. §701.7.

21 O.S. §801.

21 O.S. § 801.

A certified copy of the April 30, 2021, Order Denying Post-Conviction Relief is

attached as [Exhibit A].

Notice of Post-Conviction Appeal was filed on May 6,2021.

The Petition in Error is timely.

■ H.

Respectfully submitted.

DEBRA K. HAMPTON, OBA # 136#1

Hampton Law Office, PLLC

3126 S.Blvd.,# 304

Edmond, OK 73013

(405)250-0966

(866)251-4898 (fax)

hamptonlaw@cox.net

Attorney for Petitioner

CERTIFICATE OF SERVICE

This is to certify that on the day of filing, I requested the Cleric to place one file-stamped

copy of this instrument in the Notice Receptacle of the Attorney General.

< 1/

DEBRA K. HAMPTON

IN THE DISTRICT COURT IN AND FOR TULSA COU j^XSpUgT C^UR|^

STATE OF OKLAHOMA

APR 3 0 2021

Kenneth Funkhouser,

Petitioner,

vs.

)

STATE OF OKLAHOMA,

Respondent.

kssksss

)

CF-1983-133

)

ORDER DENYING PETITIONER’S “APPLICATION FOR POST-CONVICTION

RELIEF” FILED April 28, 2021

Comes on for consideration of Petitioner's "Application for Post-Conviction

Relief" filed April 28, 2021. The Court has reviewed Petitioner's application, the

docket sheet in this matter, as well as the pleadings filed by the Petitioner

subsequent thereto requesting post-conviction relief based on the recent decision of

the United Supreme Court in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020).

Petitioner's application does not present a genuine issue of material fact requiring

a formal hearing with the presentation of witnesses and the taking of testimony.

Johnson v. State, 1991 OK CR 124, 823 P.2d 370. This matter will therefore be

decided based on records the Court has stated it has reviewed.

Petitioner claims, based on the recent decision by the United States Supreme

Court in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), that the offenses for which he

was convicted were committed in portions of Oklahoma located in Indian Country,

prohibiting Oklahoma courts from exercising jurisdiction over his crimes. However,

the prosecution of Petitioner's offenses were justiciable matters, and Petitioner has not

EXHIBIT A

established that the trial court lacked jurisdiction. See, Okla. Const. Art. VII, § 7 (District

Courts shali have unlimited original jurisdiction of all justiciable matters in Oklahoma).

Additionally, Petitioner has failed to offer any proof that he is an “Indian” for

purposes of invoking an exception to state jurisdiction. See Goforth v. State, 1982 OK

CR 48, 644 P.2d 114 (Two elements must be satisfied before it can be found that

appellant is an Indian under federal law. Initially, it must appear that he has a

significant percentage of Indian blood. Secondly, the appellant must be recognized as

an Indian either by the federal government or by some tribe or society of Indians.) The

Petitioner has not presented this Court with any affirmative evidence that he has any

significant degree of Indian blood and that he is recognized as an Indian by the federal

government or by some tribe or society of Indians. In Russell v. Cherokee Cty. Dist

Court, 1968 OK CR 45,438 P.2d 293, 294, the Court stated:

“It is fundamental that where a petition for writ of habeas

corpus, or for post-cOnviction appeal is filed, the burden is upon the

Petitioner to sustain the allegations of his petition, and that every

presumption favors the regularity of the proceedings had in the trial

court. Error must affirmatively appear, and is never presumed.”

Based on the foregoing, the Court finds that Petitioner's application for

post-conviction relief filed April 28, 2021, should be, and is hereby DENIED.

IT IS SO ORDERED this 30 day of April, 2021.

DAWN MOODYX

JUDGE OF THfejIISTRiCT COURT

CERTIFICATE OF MAILING

I certify that on the date of filing a true and correct certified copy of the above

and foregoing document was deposited with the United States Postal Service with

sufficient postage affixed thereto, and addressed to the following recipient(s):

DEBRA HAMPTON

ATTORNEY FOR PETITIONER

3126 S BLVD, #304

EDMOND, OK 73013

KENNETH FUNKHOUSE, #91752

P.O. BOX 97

MCALESTER, OK 74502

TULSA COUNTY DA OFFICE

500 SOUTH DENVER

TULSA, OK 74103

DON E. NEWBERRY

TULSA COUNTY COURT CLERK

Deputy Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

2U21 5V7

W COURT ( rV ■

NT-ITEOFO L;iHS«U

KENNETH L. FlINKHOUSER,

Petitioner,

I 6 2021

JOHN D. HADDEN

clerk

-vs-

THE STATE OF OKLAHOMA,

Respondent.

PETITIONER’S BRIEF IN SUPPORT OF POST-CONVICTION APPEAL FROM AN

APRIL 30,2021, ORDER DENYING POST-CONVICTION RELIEF IN THE DISTRICT

COURT OF TULSA COUNTY CASE NO. CRF-1983-133

DEBRA K. HAMPTON, OBA # 13621

Hampton Law Office, PLLC

3126 S. Blvd., #304

Edmond, OK 73013

Tel:(405) 250-0966

Fax:(866) 251-4898

Email: hamptonlaw@cox.net

Attorney for Petitioner

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CASES

STATUTES

vi i

UNITED STATES CODE

Vll

OTHER AUTHORITIES

RULES

CONSTITUTIONAL PROVISIONS

Vlil

JURISDICTION

STATEMENT OF THE CASE.

STATEMENT OF FACTS

PROPOSITION I

THE DISTRICT COURT ABUSED ITS DISCRETION DENYING THE

PETITIONER’S APPLICATION FOR POST-CONVICTION RELIEF AS THE

COURT FAILED TO SET FORTH AN ACURATE FINDINGS OF FACT AND

CONCLUSIONS OF LAW INFRINGING UPON THE PETITIONER’S

STATUTORY RIGHT TO REDRESS ON APPEAL IN A POST-CONVICTION

PROCEEDING, RULES OF THE COURT OF CRIMINAL APPEALS, RULE 5.4.

STANDARD OF REVIEW

ARGUMENT AND AUTHORITY

PROPOSITION II

THE DISTRICT COURT ABUSED ITS DISCRETION DENYING

PETITIONER’S APPLICATION FOR POST-CONVICTION RELIEF

BECAUSE PETITIONER’S CLAIM INVOLVE FUNDAMENTAL ERROR

BECAUSE THE DISTRICT COURT LACKED SUBJECT-MATTER

JURISDICTION OVER “INDIAN LANDS,” WHERE EXCLUSIVE

JURISDICTION WAS CEDED TO THE UNITED STATES UNDER OKLA.

CONST., ART. I, § 3, THUS PETITIONER’S CONVICTIONS ARE VOID AB

INITIO, AS THIS CASE RAISES AN ISSUE OF FIRST IMPRESSION.

STANDARD OF REVIEW

10a

ARGUMENT AND AUTHORITY

Indian Country and Art. 1 § 3

Oklahoma Supreme Court’s interpretation of the Enabling Act.

McBratney/Draper Rule

Congressional Intent and Prohibition

CONCLUSION

CERTIFICATE OF SERVICE

11a

TABLE OF AUTHORITIES

CASES

Ahboah v. Housing Auth. ofthe Kiowa Tribe,

1983 OK 20, 660 P.2d 625......................

Arbaugh v. Y & HCorp.,

546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)

Arizona v. Fulminante,

499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991)

Barnard v. State,

2005 OK CR 13,17, 119 P.3d 203, 205-06

Bench v. State,

2021 OK CR 12,___P.3d

Bosse v. State,

2021 OK CR 3,__ P.3d

Brown v. Allen,

344 U.S. 443, 544, 73 S.Ct. 397,97 L.Ed. 469 (1953)

Brown v. U.S.,

146 F. 975, 977 (8th Cir. 1906).

C.M.G. v. Oklahoma,

1979 OK CR 39, 594 P.2d 798, cert, denied,

444 U.S. 992, 100 S.Ct. 524, 62 L.Ed.2d 421 (1979)

Cole v. State,

2021 OK CR 10, fh. I,

P.3d

Cox v. State,

2006 OK CR 51, H 6,152 P.3d 244, 247

Draper v. U.S.,

164 U.S. 240, 17 S.Ct. 107,41 L.Ed. 419 (1896)

8, 11

Duclos v. State,

2017 OK CR 8,1f 10, 400 P.3d 781,784

Foley Bros., Inc. v. Filardo,

336 U.S. 281, 69 S.Ct. 575, 93 L.Ed. 680 (1949)

12a

Funkhouser v. State,

1987 OK CR 44, 734 P.2d 815

Gonzalez v. Thaler,

565 U.S. 134, 141, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012)

Grayson v. State,

2021 OK CR 8,__ P.3d

8, 15

Harrington v. Richter,

562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)

Hatten v. Hudspeth,

99 F.2d 501 (10th Cir. 1938)

12, 13

Higgins v. Brown,

1908 OK 28, 20 Okla. 355, 94 P. 703

8, 11, 14

Hogner v. State,

2021 OK CR 4,___P.3d

2,8

Hollister v. US.,

145 F. 773 (8th Cir. 1906)

Hoover v. Kiowa Tribe of Oklahoma,

1998 OK 23, 957 P.2d 81............

In re Initiative Petition No. 363,

1996 OK 122, 927 P.2d 558.

Indian Country, USA v. Oklahoma Tax Com ’n,

829 F.2d 967, 978 (10th Cir. 1987)............

9, 15

Johnson v. State,

2013 OK CR 12, f 10, 308 P.3d 1053, 1055

Kills Plenty v. US.,

133 F.2d 292 (8th Cir. 1943)

Kiowa Indian Tribe of Oklahoma v. Hoover,

150 F.3d 1163 (10th Cir. 1998)..............

Lambert v. Blackwell,

387 F.3d 210 (3rd Cir. 2004)

13a

Logan v. State,

2013 OK CR 2, 293 P.3d 969, 977

2,3

Louisville & Nashville R. Co. v. Mottley,

211 U.S. 149, 29 S.Ct 42, 53 L.Ed. 126 (1908)

McClanahan v. Arizona State Tax Comm fn,

411 U.S. 164, 175, 93 S.Ct. 1257, 1264, 36 L.Ed.2d 129(1973)

McCoy v. Louisiana,

584 U.S.

138 S.Ct. 1500, 1511, 200, L.Ed.2d 821 (2018)

McGirt v. Oklahoma,

591 U.S.

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

passim

Merzbacher v. Shearin,

706 F.3d 356, 368 (4,h Cir. 2013)

Moore v. U.S.,

85 F. 465 (8th Cir. 1898).

Murphy v. Royal,

875 F.3d 896, 907-909, 966 (2017), cert, granted, 589 U. S.

(2019)

5, 6,15

Neder v U.S,

527 U.S. 1,8, 119 S.Ct. 1827,144L.Ed.2d 35 (1999)

Neloms v. State,

2012 OK CR 7,135, 274 P.3d 161, 170

2,5

Newlun v. State,

2015 OK CR 7,18, 348 P.3d 209,211

Organized Village ofKake v. Egan,

369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962)

Robinson v. State,

2011 OK CR 15,13,255 P.3d 425,428

Ryder v. State,

2021 OK CR II,__ P.3d

Sharp v. Murphy,

591 U.S.

, 140 S.Ct. 2412, 207 L.Ed.2d 1043 (2020)

14a

Sizemore v. State,

2021 OK CR 6,___P.3d

Spears v. State,

2021 OK CR 7,___P.3d

State ex rel. May v. Seneca-Cayuga Tribe,

3 985 OK 54, % 17} 711 P.2d 77, 86-87

State ex rel Smith v. Neuwirth,

2014 OK CR 16,112, 337 P.3d 763, 766

State v. Burnett,

1983 OK CR 153, 671 P.2d 1165

State v. Delso,

2013 OK CR 5, If 5, 298 P.3d 1192,1194

State v. Doxtater,

47 Wis. 278, 2 N.W. 439

State v. /vew,

2014 OK CR 8, U 13, 335 P.3d 264, 268

State v. Klindt,

1989 OK CR 75, 782 P.2d 401, 403)

Stermerv. Warren,

360 F. Supp. 3d 639, 653 (E.D. Mich. 2018)

Stermerv. Warren,

959 F.3d 704 (6th Cir. 2020)...............

Triplet v. Franklin,

365 Fed. Appx. 86, 95 (10th Cir. 2010)

US. v. Bailey,

1 McLean 234, 24 F. Cas. 937 (1834)

US. v. Burnett,

111 F.2d 593 (10th Cir. 1985), cert, denied,

476 U.S. 1106, 106S.Ct. 1952, 90L.Ed.2d 361 (1986)

U.S. v. Cotton,

535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)

15a

U.S. v. Cronic,

466 U.S. 648, 659, 104 S.Ct 2039, 80 L.Ed.2d 657 (1984)

U.S. v. Dominguez Benitez,

542 U.S. 74, 81,124 S.Ct 2333,2239,159L.Ed.2d 157(2004)

U.S. v. Kagama,

118 U.S. 375, 6 S. Ct. 1109, 30 L.Ed. 228 (1886)

U.S. v. McBratney,

104 U.S. 621, 26 L.Ed. 869,21 S.Ct. 924 (1882)

passim

Union Pacific R. Co. v. Locomotive Engineers,

558 U.S. 67, 81,130 S.Ct. 584, 175 L.Ed.2d 428 (2009)

Wackerly v. State,

2010 OK CR 16, 237 P.3d 795, 797.

2,5

Wallace v. State,

1997 OK CR 18, 935 P.2d 366, 372

Ward v. Race Horse,

163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244 (1896)

Wardv. U.S.,

28 F. Cas. 397, 1 Kan. 601 (1863)

Weaver v. Massachusetts,

582 U.S.___, 137 S.Ct. 1899, 198 L.Ed.2d 420 (2017)

STATUTES

12 0.S. §2.....

22 O.S. § 1083

22 O.S. § 1084

22 O.S. §1087

UNITED STATES CODE

18U.S.C.§ 1152......

18U.S.C. § 1153......

18U.S.C. § 1162......

25 U.S.C. §§ 1321-26,

25 U.S.C. § 1324......

28 U.S.C. § 1360......

16a

34 Stat. 267(1906)

67 Stat 590(1953)

OTHER AUTHORITIES

[59th Congress, Session I, Chapter. 3335, pg. 279, (1906)]

A. Debo, And Still the Waters Run 86-87,117-118 (1940)

Felix S. Cohen’s Handbook of Federal Indian Law

60 at 537-38 & n.47 (Nell Jessup Newton ed., 2012)

RULES

Rule 5.2(C)(6)(b), Rules ofthe Oklahoma Court of Criminal Appeals

Rule 5.4(A), Rules ofthe Oklahoma Court of Criminal Appeals

CONSTITUTIONAL PROVISIONS

Okla. Const, art. I § 3

Okla. Const., art VII § 7

V!il

17a

IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA

KENNETH L. FUNKHOUSER,

Petitioner,

-vsTHE STATE OF OKLAHOMA,

Respondent.

)

District Court of Tulsa County

Case No. CRF-1983-133

BRIEF IN SUPPORT

COMES NOW, the Petitioner, KENNETH L. FUNKHOUSER, through counsel, Debra

K. Hampton, and submits his Brief in Support of Post-Conviction of his Petition in Error.

JURISDICTION

Jurisdiction is invoked under 22 O.S. § 1087 under the Oklahoma Uniform PostConviction Procedures Act. The Petition in Error and Brief in Support have been timely filed.

STATEMENT OF THE CASE

Petitioner was charged for the offense of Murder in the First Degree, three counts of

Robbery with Firearms, and Attempted Robbery with a Firearm. A demurrer was sustained as to

the allegation of Attempted Robbery, but Petitioner was convicted by a jury on the other four

counts. Pursuant to an agreement with the State, Petitioner waived his right to jury sentencing and

agreed to a sentence of life imprisonment on the murder conviction and sentences of 50 years each

on the robbery conviction, all running consecutively. The District Court imposed Judgment and

Sentence under this agreement. The OCCA affirmed the Judgment and Sentence on March 11,

1987. Funkhouser v. State, 1987 OK CR44, 734P.2d 815. Petitioner’s co-defendant, and brother,

Garland Funkhouser, was acquitted by the jury.

Petitioner, pro se, filed a Petition for Certiorari to the United States Supreme Court in

Funkhouser v. Oklahoma, Case No. 86-6902, cert was denied. Petitioner has sought further relief,

18a

but it is irrelevant. This Court has held that “no procedural bar applies.” See Bosse v. State, 2021

OK CR 3, UH 21-22,___P.3d___ ; Cole v. State, 2021 OK CR 10, If 16,___P.3d

STATEMENT OF FACTS

The Petitioner is not an enrolled tribal member, nor is Petitioner an Indian but the alleged

offense occurred in Tulsa, Oklahoma, within Tulsa County. This land is considered Indian Country

belonging to the Muscogee (Creek) Nation, Osage Nation and Cherokee Nation according to the

United States Supreme Court.

PROPOSITION I

THE DISTRICT COURT ABUSED ITS DISCRETION DENYING THE

PETITIONER’S APPLICATION FOR POST-CONVICTION RELIEF AS

THE COURT FAILED TO SET FORTH AN ACURATE FINDINGS OF

FACT AND CONCLUSIONS OF LAW INFRINGING UPON THE

PETITIONER’S STATUTORY RIGHT TO REDRESS ON APPEAL IN A

POST-CONVICTION PROCEEDING, RULES OF THE COURT OF

CRIMINAL APPEALS, RULE 5.4.

STANDARD OF REVIEW

The correct standard of review is defined by Rule 5.2(C)(6)(b), Rules of the

Oklahoma Court ofCriminal Appeals, Title 22 Ch. 18, App. (2012). Logan v. State,

2013 OK CR 2, 293 P.3d 969, 977. (Footnote omitted) (District Court denial of

post-conviction relief must include “findings of fact and conclusions of law entered

by the District Court, setting out the specific portions of the record and transcripts

considered by the District Court in reaching its decision or setting forth whether the

decision was based on the pleadings presented”). Rule 5.4(A), Rules of the

Oklahoma Court ofCriminal Appeals.

ARGUMENT AND AUTHORITY

The District Court abused its discretion as this has been defined as any unreasonable or

arbitrary action taken without proper consideration of the facts and law pertaining to the matter at

issue or a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect

of the facts presented. Neloms v. State, 2012 OK CR 7, If 35, 274 P.3d 161, 170; State v. Delso,

2013 OK CR 5, If 5, 298 P.3d 1192, 1194. Hogner v. State, 2021 OK CR 4,___P.3d___ . The

19a

District Court must make “specific findings of fact and conclusions of law” involving the issue

presented. Rule 5.2(C)(6)(b), Rules ofthe Oklahoma Court of Criminal Appeals, Logan v. State,

2013 OK CR 2, 293 P.3d 969, 977. The duty of the District Court is not discretionary under 22

O.S. § 1084 provides in part: “The Court shall make specific findings of fact, and state expressly

its conclusions of law, relating to each issue presented. This Order is a final judgment.” See also

Rule 5.4(A) the Rules ofthe Oklahoma Court of Criminal Appeals which provides:

The judge assigned to adjudicate the application for post-conviction relief shall

prepare a detailed order setting out specific findings of fact and conclusions of law

on each proposition for relief presented in the application. The order shall also

specify the pleadings, documents, exhibits, specific portions of the original record

and transcripts, considered in adjudicating the application, which shall then become

a part of the record on appeal as defined by Rule 5.2(C)(6)

Petitioner’s “Application for Post-Conviction Relief’ was filed April 28,2021, the District

Court’s Order denying the application was filed on April 30,2021. The District Court found that:

“The Court has reviewed Petitioner’s application, the docket sheet in this matter, as well as the

pleadings filed by the Petitioner subsequent thereto requesting post-conviction relief based on the

recent decision of the United Supreme Court in McGirt v. Oklahoma, 591 U.S.

140 S.Ct.

2452, 207 L.Ed.2d 985 (2020) ... This matter will therefore be decided based on records the Court

has stated it has reviewed.” (Order at 1) The record clearly demonstrates that no pleadings were

filed by State or the Petitioner “subsequent” to his application filed on April 28, 2021, therefore

the District Court decided Petitioner’s case—in part—on pleadings outside the record therefore

requiring this Court to remand this action to the District Court.

Further, because 22 O.S. § 1083 would require the State to respond, “within thirty (30)

days after the docketing of the application, or within any further time the Court may fix, the state

shall respond by answer or by motion which may be supported by affidavits....” The District Court

abused its discretion adjudicating a claim before the State responded. The language under § 1083

20a

(B) provides “[w]hen a Court is satisfied, on the basis of the application, the answer or motion of

respondent, and the record, that the applicant is not entitled to post-conviction relief and no purpose

would be served by any further proceedings, it may order the application dismissed or grant leave

to file an amended application. Disposition on the pleadings and record is not proper if there exists

a material issue of fact...

The language of these statutes is plain and unambiguous, a fundamental principle of

statutory construction requires this Court to determine and give effect to the intention of the

Legislature. Title 12 O.S. §2. See State v. Iven, 2014 OK CR 8, f 13, 335 P.3d 264, 268.

Legislative intent is determined first by the plain and ordinary language of the statute. Johnson v.

State, 2013 OK CR 12, f 10, 308 P.3d 1053, 1055. “A statute should be given a construction

according to the fair import of its words taken in their usual sense, in conjunction with the context,

and with reference to the purpose of the provision.” Id. When language of a statute is unambiguous,

resort to additional rules of construction is unnecessary. Barnard v. State, 2005 OK CR 13, % 1,

119P.3d 203,205-06. “We must hold a statute to mean what it plainly expresses and cannot resort

to interpretive devices to create a different meaning.” Johnson, supra. See also Newlun v. State,

2015 OK CR 7, K 8, 348 P.3d 209, 211. This Court should reverse and remand the action to the

District Court.

PROPOSITION II

THE DISTRICT COURT ABUSED ITS DISCRETION DENYING

PETITIONER’S APPLICATION FOR POST-CONVICTION RELIEF

BECAUSE PETITIONER’S CLAIM INVOLVE FUNDAMENTAL ERROR

BECAUSE THE DISTRICT COURT LACKED SUBJECT-MATTER

JURISDICTION OVER “INDIAN LANDS,” WHERE EXCLUSIVE

JURISDICTION WAS CEDED TO THE UNITED STATES UNDER OKLA.

CONST., ART. I, § 3, THUS PETITIONER’S CONVICTIONS ARE VOID

AB INITIO, AS THIS CASE RAISES AN ISSUE OF FIRST IMPRESSION.

21a

STANDARD OF REVIEW

This Court reviews the District Court’s determination of an application for post

conviction relief for an abuse of discretion. State ex rel Smith v. Neuwirth, 2014

OK CR 16, f 12, 337 P.3d 763, 766. An abuse of discretion is any unreasonable or

arbitrary action taken without proper consideration of the facts and law pertaining

to the matter at issue or a clearly erroneous conclusion and judgment, one that is

clearly against the logic and effect of the facts presented. Neloms v. State, 2012 OK

CR 7, H 35,274 P.3d 161,170. Compare McGirtv. Oklahoma, 591 U.S.

., 140

S.Ct. 2452, 207 L.Ed.2d 985 (2020), but this case presents a matter of first

impression, Murphy v. Royal, 875 F.3d 896, 907-909, 966 (2017), cert, granted,

589 U.S.__ (2019); Sharp v. Murphy, 591 U.S.

2020)(Per Curiam)(affirming

the Tenth Circuit); Cox v. State, 2006 OK CR 51, If 6, 152 P.3d 244, 247 (“a lack

of subject-matter jurisdiction upon the trial Court cannot be waived.”); Wallace v.

State, 1997 OK CR 18, 935 P.2d 366, 372; Triplet v. Franklin, 365 Fed. Appx. 86,

95 (10th Cir. 2010); and Wackerly v. State, 2010 OK CR 16,237 P.3d 795, 797.

ARGUMENT AND AUTHORITY

Petitioner argues because the District Court’s Order was ambiguous and rested on thin air

as there was “no reasonable basis for the State Court to deny relief.” Harrington v. Richter, 562

U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Federal Courts have held “If a State Court’s

finding rests on thin air, the petition will have little difficulty satisfying the standards for relief

under § 2254.” Mendiola v. Schomig, 224 F.3d at 592; Lambert v. Blackwell, 387 F.3d 210 (3rd

Cir. 2004); Merzbacher v. Shearin, 706 F.3d 356, 368 (4th Cir. 2013) (We do not disagree with

this suggestion.) The Supreme Court has instructed, “[ejven in the context of Federal habeas,

deference does not imply abandonment or abdication of judicial review,” Miller-El v. Cockrell,

537 U.S. at 340; Siermerv. Warren, 360 F. Supp. 3d 639,653 (E.D. Mich. 2018) affirmedStermer

v. Warren, 959 F.3d 704 (6th Cir. 2020).

The District Court determined that “Petitioner has failed to offer any proof that he is an

Indian” (Order at 2), and incorrectly concludes this failure is a prerequisite to a viable claim for

post-conviction relief. This case has nothing to do with being an “Indian” or having an Indian

victim. This case is not about the Major Crimes Act (“MCA”) 18 U.S.C. § 1153, or the General

22a

Crimes Act (“GCA”) 18 U.S.C. § 1152; rather this cases involves a pure subject-matterjurisdiction

claim because of Oklahoma’s Enabling Act [59th Congress, Session I, Chapter. 3335, pg. 279,

(1906)]. See also Okla. Const., art. 1, § 3; the history of relevant Indian Treaties; clearly established

Supreme Court, Tenth Circuit, and State precedent. McGirt and its progeny.

The District Court’s failure to analyze the subject-matter jurisdictional claims under

Oklahoma’s Enabling Act is crucial because of the federal nature of the claim that cannot be

overlooked. When a State obtains a conviction in violation of a Federal Constitution, it is always

a serious wrong, not only to a particular convict, but to Federal law. Brown v. Allen, 344 U.S. 443,

544, 73 S.Ct. 397, 97 L.Ed. 469 (1953). The District Court’s factual determination was not only

erroneous it was objectively unreasonable because the State ceded jurisdiction to the United States

upon entry into the Union. Okla. Const, art. 1 § 3, the Enabling Act,1 which must be interpreted by

a plain language reading of the text to arrive at a meaning of what the framers intended. These

assertions are reinforced with text where there can be no other meaning when analyzed by a plain

language reading of the text. Important to the claims raised is the Enabling Act embodied into art.

I, § 3 and was not addressed in McGirt or Murphy v. Royal, 866 F.3d 1164 (10th Cir. 2017).2 Art.

I, § 3 reads:

The people inhabiting the State do agree and declare that they forever disclaim all

right and title in or to any unappropriated public lands lying within the boundaries

thereof, and to all lands lying within said limits owned or held by any Indian,

Tribe, or Nation; and that until the title to any such public land shall have been

extinguished by the United States, the same shall be and remain subject to the

jurisdiction, disposal, and control of the United States...

1 In re Initiative Petition No. 363,1996 OK 122, 927 P.2d 558.

2 (in 1897, Congress imposed several measures to force the Creek Nation’s agreement to the allotment policy.

Congress (1) “provid[ed] that the body of Federal law in Indian Territory, which included the incorporated Arkansas

laws, was to apply irrespective of race.”)

23a

Indian Country and Art. 1 § 3

Before McGirt, Okla. Const., art. 1, § 3 was of no consequence, rather it was simply an

imposition upon the State under the Enabling Act, supra. Oklahoma has existed for a little over

114 years, with little credence given to this constitutional provision and appears to be a forgotten

article which remains in effect today and represents a congressional prohibition of State

jurisdiction. After the Supreme Court’s decision in McGirt, and understanding that Oklahomans

believed “reservations,” or “Indian lands” to be things of the past. See Cole v. State, 2021 OK CR

10, fn. 1, (Lumpkin, Judge: “I continue to share the position of Chief Justice Robert’s dissent in

McGirt, 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.”).

Now looking at McGirt, the Court addressed Oklahoma’s points on the merit and rejected

every attempted defense and rejected the history relied upon by the State finding it unconvincing:

[t]his history proves no more helpful in discerning statutory meaning. Maybe, as

Oklahoma supposes, it suggests that some white settlers in good faith thought the

Creek lands no longer constituted a Reservation. But maybe, too, some didn’t

care, and others never paused to think about the question. Certain historians

have argued, for example, that the loss of Creek land ownership was accelerated by

the discovery of oil in the region during the period at issue here. A number of the

Federal officials charged with implementing the laws of Congress were apparently

openly conflicted, holding shares or board positions in the very oil companies who

sought to deprive Indians of their lands. A. Debo, And Still the Waters Run 86-87,

117-118 (1940). And for a time, Oklahoma’s Courts appear to have entertained

sham competency and guardianship proceedings that divested Tribe members

of oil rich allotments. Id., at 104-106, 233-234; Brief for Historians et al. as Amici

Curiae 26-30. Whatever else might be said about the history and demographics

placed before us, they hardly tell a story of unalloyed respect for tribal interests.

McGirt, supra, at 2473

Using the framework set out in McGirt which relied on Solem v. Bartlett, 465 U.S. 463,

104 S.Ct. 1161,79 L.Ed.2d 443 (1984), defining “Indian lands,” this Court has extended the ruling

to the Eastern half of the State. See Bosse v. State, 2021 OK CR 3,

P.3d

(Chickasaw

24a

Reservation); Hogner v. State, 2021 OK CR 4,___P.3d

State, 2021 OK CR 6,__ P.3d

P.3d

(Cherokee Reservation); Sizemore v.

(Choctaw Reservation); Spears v. State, 2021 OK CR 7,

(Cherokee Reservation); Grayson v. State, 2021 OK CR 8,

Reservation); Cole v. State, 2021 OK CR 10,___P.3d

P.3d___(Seminole

(Cherokee Reservation); Ryder v. State,

2021 OK CR 11,___P.3d___ (Choctaw Reservation); and Bench v. State, 2021 OK CR 12,

P.3d

(Chickasaw Reservation).

Oklahoma Supreme Court’s Interpretation of the Enabling Act.

The Oklahoma Supreme Court addressed the Enabling Act in Higgins v. Brown, 1908 OK

28, 20 Okla. 355, 94 P. 703, and applying stare decisis, the Court discussed in great detail a

comparison of laws with other states and determined the lands were exclusively under the

jurisdiction of the United States. The Oklahoma Enabling Act and State Constitution remain the

same today as from their inception as addressed in Higgins:

Tf 164 By the same process of reasoning followed by the Supreme Court of the

United States in cases of U.S. v. McBratney, 104 U.S. 621, [26 L.Ed. 869, 21 S.Ct.

924] (1882), and Draper v. U.S., 164 U.S. 240, [17 S.Ct. 107,41 L.Ed. 419] (1896),

we conclude that the Congress, upon the admission of Oklahoma as a state, where

it has intended to except out of such State an Indian Reservation, or the sole and

exclusive jurisdiction over that Reservation, it has done so bv express words.

It is not contended that the alleged crime was committed on any such excepted

Reservation, or in any place where the United States has the sole and exclusive

jurisdiction since the admission of the state. Now, mark you the language, “had

they been committed within a state would have been cognizable in the Federal

Courts,” contained in section 16, as amended March 4, 1907, of the Oklahoma

Enabling Act. Does not that mean in a state similarly circumstanced as one with

Enabling Act like ours? When you consider this language in connection with

section 39 ofthe same Enabling Act pertaining to Arizona and New Mexico, supra,

it seems that Congress was recognizing the existing conditions and the bringing in

of an organized and unorganized territory as one state, and that it was laying down

the rule that if such offense had been committed after the admission of the state

it would have been cognizable in the Federal Court, that then such Federal

Court would have jurisdiction: otherwise not. Any other conclusion can be

reached only by reasoning against the apparent and reasonable literal meaning. See,

also, the following authorities heretofore cited: Moore v. US., 85 F, 465 (8th Cir.

1898); U.S. v. Kagama, 118 U.S. 375, (1886); Wardv. U.S., 28 F. Cas. 397, 1 Kan.

25a

601 (1863); Ward v. Race Horse, 163 U.S. 504 (1896); U.S. v. Bailey, 1 McLean

234, 24 F. Cas. 937 (1834); State v. Doxtater, 47 Wis. 278, 2 N.W. 439.

Id.

The Tenth Circuit’s interpretation of the Oklahoma Enabling Act is that the Enabling Act

preserved the authority of the Federal Government over Indians and their lands and required the

State to disclaim “all right and title” to such lands. See §§ l, 3, 34 Stat. at 267-68, 270. Indian

Country, USA v. Oklahoma Tax Com’n, 829 F.2d 967, 978 (10th Cir. 1987). The Tenth Circuit

rejected the State’s interpretation of Oklahoma’s Enabling Act because the State’s construction

ignored the effect of section one of the Act, in which Congress explicitly preserved Federal

authority. Section one provides that:

nothing contained in the said Constitution shall be construed to limit or impair the

rights of person or property pertaining to the Indians of said Territories (so long as

such rights shall remain unextinguished) or to limit or affect the authority of the

Government of the United States to make any law or regulation respecting such

Indians, their lands, property, or other rights by treaties, agreement, law or

otherwise, which it would have been competent to make if this Act had never been

passed.

Indian Country, USA v. Oklahoma Tax Com ’n, 829 F.2d at 979.

Oklahoma Enabling Act, § 1, 34 Stat. at 267-68. Section one is a general Reservation of

Federal and tribal jurisdiction over “Indians, their lands, [and] property,” except as extinguished

by the tribes or the Federal—not state—government. Id. Further, the Court held that “[t]he

language of the Oklahoma Act, read in its historical context, suggests that Congress intended to

preserve its jurisdiction and authority over Indians and their lands in the new State of Oklahoma

until it accomplished the eventual goal of terminating the tribal governments, assimilating the

Indians, and dissolving completely the tribally-owned land base—events that never occurred and

goals that Congress later expressly repudiated. The State has failed to cite any acts of Congress

26a

that clearly reveal an intent to divest the Federal and tribal governments of jurisdiction over Creek

tribal lands and to confer such authority on the State of Oklahoma.” Id. at 979-980.

Our interpretation of Oklahoma’s Enabling Act is consistent with the way in which

Congress interpreted the Act in 1953 when it addressed the matter of state

jurisdiction over Indian Country. In that year, Congress enacted Public Law 83-280

to permit states to assert limited civil and broad criminal jurisdiction in Indian

Country. See Act of Aug. 15,1953, ch. 505,67 Stat. 588 (Public Law 280) (codified

as amended at 18 U.S.C. § 1162,25 U.S.C. §§ 1321-26,28 U.S.C. § 1360 (1982 &

Supp.1985)). Congress included a provision that operated to “give consent of the

United States to those States presently having organic laws expressly disclaiming

jurisdiction to acquire jurisdiction subsequent to enactment by amending or

repealing such disclaimer laws.” See S. Rep. No. 699, 83d Cong., 1st Sess.,

reprinted in 1953 U.S. Code Cong. & Admin. News 2409, 2412; see also Public

Law 280, §6, 67 Stat. at 590 (codified as amended at 25 U.S.C. § 1324). The

Committee Report listed Oklahoma among the states with such disclaimers and

stated that the “[e]ffect of the disclaimer of jurisdiction over Indian land within the

borders of these States—in the absence of consent being given for future action to

assume jurisdiction—is to retain exclusive Federal jurisdiction until Indian title in

such lands is extinguished.” S. Rep. No. 699, 1953 U.S. Code Cong. & Admin.

News at 2412; cf. McClanahan v. Arizona State Tax Comm % 411 U.S. 164, 175,

93 S.Ct. 1257, 1264, 36 L.Ed.2d 129 (1973) (Court noted that Congress had acted

on the assumption that the states lacked jurisdiction over the Navajos on their

Reservation). Creek Nation title to the Mackey site has never been extinguished.

The Court concluded that the series of Federal laws enacted before statehood and the

Oklahoma Enabling Act do not divest the Federal Government of authority over Creek tribal lands,

do not abolish the Creek Nation’s legislative and regulatory authority over such lands, and do not

evince a clear intent by Congress to permit the State to assert jurisdiction. Indian Country, 829

F.2d at 979. The canon of construction which teaches that legislation of Congress, unless a

contrary intent appears, applies only within the territorial jurisdiction of the United States. Foley

Bros., Inc. v. Filardo, 336 U.S. 281, 69 S.Ct. 575, 93 L.Ed. 680 (1949) (citing Blackmer v. United

States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932)) Thus the Oklahoma Enabling Act is not

silent as it created a congressional prohibition of state jurisdiction.

27a

McBratney3/Draper4 Rule

In McBratney, a non-Indian was convicted in Federal Court of murdering another nonIndian on a Colorado Indian Reservation. McBratney, supra, at,621. In a highly suspect application

of statutory construction, the Supreme Court first observed that Federal Courts could only exercise

criminal jurisdiction over places—including Indian Country—within the exclusive jurisdiction of

the United States. According to the Court, if Colorado had jurisdiction over the offense, then the

Federal Government did not. Colorado had jurisdiction, the Court said, because Congress had

admitted it to the Union “upon an equal footing with the original States” and no exception was

made for jurisdiction over the Reservation. McBratney, supra. Thus, the Court reasoned, Colorado

law extended throughout the State, and to the Reservation, insofar as that law related to non-Indian

against non-Indian crimes.

McBratney’s holding was later shoehorned in Draper\ supra. There, the murder of a nonIndian by a non-Indian occurred on a Montana Reservation. Draper, supra. The Court in Draper

addressed the State of Montana’s Enabling Act which provided that the people “agree and declare

that they forever disclaim” all title to Indian lands and that “said lands shall remain under the

absolute jurisdiction and control of the Congress of the United States.” The Supreme Court ruled

that the State, and not the Federal Government, had jurisdiction over the homicide. Despite what

commentators believe to be untenable undeipinnings, McBratney and Draper are, and remain, the

accepted rule of law. In Higgins v. Brown, supra, the Oklahoma Supreme Court specifically

concluded “that the Congress, upon the admission of Oklahoma as a State, where it has intended

to except out of such State an Indian Reservation, or the sole and exclusive jurisdiction over

that Reservation, it has done so by express words.” Because Oklahoma’s Constitution ceded

3 US. V. McBratney, 104 U.S. 621, 26 L.Ed. 869,21 S.Ct. 924 (1882)

4 Draperv. U.S., 164 U.S. 240,17 S.Ct. 107,41 L.Ed. 419 (1896)

28a

jurisdiction to the United States, the McBratney/Draper rule is inapplicable to Indian lands in

Oklahoma or any land that the United States is a party of interest to the land based on the

jurisdictional agreement the State and Federal Government entered and put in place.

In Hollister v. US., 145 F. 773 (8th Cir. 1906), the Eighth Circuit held that South Dakota

had, by consent of its people, ceded criminal jurisdiction over Indian land on the Rosebud and

other reservations within the State which the United States had acquired before statehood. Id.

at 778. The Court said that the consent and cession of jurisdiction, on the part of the State, and the

Federal Government’s assumption of the same, were sufficiently expressed in state

constitutional provisions and State and Federal enactments. Id.

A few months afterward, the Eighth Circuit Court of Appeals specifically addressed the

McBratney/Draper rule, concluding that it only applied to crimes committed “in a sovereign state,

the admission of which into the Union, without any exception with respect to the Indian

reservations therein or the jurisdiction over them, removed those reservations from the plenary

authority of the United States.” U.S. v. Sadekni, No. 3: 16-CR-30164-MAM (D.S.D. Mar. 1,2017)

(citing Brown v. U.S., 146F.975, 977(8th Cir. 1906)). The Appeals Court also cited with approval,

the case just mentioned, pointing out that the case “related to a crime [larceny] committed in an

Indian Reservation [Rosebud] in South Dakota, jurisdiction to punish which had been completely

ceded to the United States by the state and accepted by Congress before its commission.” Id. The

Court determined that Federal jurisdiction applied to the entire Reservation even though the

Federal Government’s title to certain Reservation tracts had already been extinguished. Later the

Tenth Circuit addressed an appellate case where a man, who had been convicted of murder that

occurred on the Rosebud Reservation, sought habeas relief on the ground that the Federal District

Court in South Dakota had no jurisdiction to sentence him. Hatten v. Hudspeth, 99 F.2d 501 (10th

29a

Cir. 1938) The Tenth Circuit determined that the United States District Court had jurisdiction over

the crime and denied the writ. Id. at. 502-03.

The Eighth Circuit Appeals Court later followed, in step, the preceding cases and held that

it was the intention of South Dakota, in 1901, to cede to the United States jurisdiction over certain

criminal offenses committed within the territorial limits of State Indian reservations so long as

they remained reservations. Kills Plenty v. U.S., 133 F.2d 292 (8th Cir. 1943) The Court further

held that it was the intention of the Federal Government, in 1903 and thereafter, to assume and

exercise that jurisdiction with respect to assault and other specifically enumerated offenses. Id.

Again, Oklahoma’s Enabling Act is clear that jurisdiction was ceded to the United States.

In State ex rel. May v. Seneca-Cayuga Tribe, 1985 OK 54, ^ 17, 711 P.2d 77, 86-875, the

Oklahoma Supreme Court held “Although Oklahoma has not taken formal steps to remove its

constitutional disclaimer, recent cases suggest that repeal of the disclaimer may not be necessary.

Even should state law indicate repeal, it has been held that the barrier posed by constitutional

amendment may be removed by other state action. [The Oklahoma Supreme Court] has adopted

this principle emphasizing that the disclaimer is one of ‘proprietary’ rather than ‘governmental’

interest.” The Oklahoma Supreme Court further determined in Seneca-Cayuga Tribe, supra, If 19,

holding, “We are unable to identify and isolate any state governmental action which amounts to

an assumption of cognizance over Indian Country.” Petitioner argues that Oklahoma’s

Constitution differs from Alaska’s Constitution, but the majority recognizes the case of Organized

Village ofKake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962), which is derived from

Public Law 83-280. The Supreme Court recognized even the difference in the text between

Oklahoma and Alaska’s Constitution where Oklahoma establishes that Indian lands remain

5 5i 37 KAUGER, J., concurs in part and dissents in part.

30a

“subject to the jurisdiction, disposal, and control of the United States.” Id. at 69. While “[m]ost

statehood bills contained the more common phrasing ‘absolute jurisdiction and control* rather

than the Oklahoma phrase.” Id. at 70. Although this was the usual language employed to retain

Federal power in statehood acts, the Senate Committee in 1958 out of an abundance of caution

deleted the word “jurisdiction” so no one might construe the statute as abolishing state power

entirely, (emphasis added) In Higgins, supra, the Court’s interpretation did not allow for the State

of Oklahoma to claim arbitrary jurisdiction over Indian land, to do so in 1908 would have ignored

the congressional intent of Oklahoma’s Enabling Act and nothing has altered that language.

Petitioner then points to Hoover v. Kiowa Tribe of Oklahoma, 1998 OK 23, 957 P.2d 81,6

wherein the Tenth Circuit upheld dissenting opinions by reversing the majority’s opinion. The

dissent determined: ^[9 Despite the language of Oklahoma’s enabling legislation, specifically

protecting the rights of Native Americans in Indian territory, section 6 of P.L. 280, 67 Stat. 590

(1953) provides:

Notwithstanding the provisions of any Enabling Act for the admission of a State,

the consent of the United States is hereby given to the people of any State to amend,

where necessary, their State Constitution or existing statutes, as the case may be, to

remove any legal impediment to the assumption of civil and criminal jurisdiction

in accordance with the provisions of this Act: Provided, That the provisions of this

Act shall not become effective with respect to such assumption of jurisdiction by

any such State until the people thereof have appropriately amended their State

Constitution or statutes as the case may be.”

Oklahoma has not amended its Constitution, nor has it complied with the conditions

set forth in P.L. 280 to invoke jurisdiction over Indian tribes. It also has not assumed

economic responsibility for tribal services currently provided by Indian nations,

i.e., health care, indigent relief, road improvements, etc. The majority’s reliance on

a statement by Governor Johnston Murray, who served from 1951 to 1955, for the

6 Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163 (10th Cir. 1998) the Court reversed: (The District

Court’s decisions to dismiss the Tribe's § 1983 action pursuant to the Rooker-Feldman doctrine and to deny the

Tribe a preliminary injunction pending prosecution of the claim are REVERSED. The case is REMANDED to the

District Court for further consideration consistent with this opinion and in light of any subsequent action taken by

the Oklahoma State Courts in response to the Supreme Court’s holding in Manufacturing Tech.)

31a

proposition that adoption of P.L. 280 in Oklahoma would make no difference to

Native Americans in Oklahoma is unconvincing. Had the State passed legislation

or amended its Constitution in conjunction with the Federal statute—which it has

not, civil and criminal jurisdiction could have been extended over Indian

Country. However, the window has closed on Oklahoma’s opportunity to assume

jurisdiction under P.L. 280 as originally enacted. The portion of the Federal statute

allowing for the assumption ofjurisdiction was repealed in 1968.”

Then the Tenth Circuit in Murphy v. Royal, 866F.3d 1164 (10th Cir. 2017), recognized that

Oklahoma chose not to use Public Law 280 to assert jurisdiction. State officials regarded the law

as unnecessary because, in their view, Oklahoma already had full jurisdiction over Indians and

their lands. Indian Country, USA, supra. But “[t]he State’s 1953 position that Public Law 280 was

unnecessary for Oklahoma ... [has] been rejected by both Federal and State Courts.” Id. U.S. v.

Burnett, 111 F.2d 593 (10th Cir.1985), cert, denied, 476 U.S. 1106, 106 S.Ct. 1952, 90 L.Ed.2d

361 (1986); Ahboah v. Housing Auth. of the Kiowa Tribe, 1983 OK 20, 660 P.2d 625; State v.

Burnett, supra', C.M.G. v. Oklahoma, 1979 OK CR 39, 594 P.2d 798, cert, denied, 444 U.S. 992,

100 S.Ct. 524,62L.Ed.2d421 (1979); Littlechief, supra. Oklahoma has not obtained tribal consent

following the 1968 amendment and has thus never acquired jurisdiction over Indian Country

through Public Law 280. See Cravatt v. State, supra, (“The State of Oklahoma has never acted

pursuant to Public Law 83-280.” quoting State v. Klindt, 1989 OK CR 75,782 P.2d 401,403); See

Felix S. Cohen’s Handbook of Federal Indian Law 60 at 537-38 & n.47 (Nell Jessup Newton ed.,

2012).

The District Court of Seminole County addressed the Enabling Act in Grayson, F-20181229,7 on remand and affirmed in Grayson v. State, 2021 OK CR 8. The District Court held: (iii)

Oklahoma’s statehood did not disestablish the Reservation.

Shortly after Congress expressly preserved the Seminole Nation’s Government, it

passed the Oklahoma Enabling Act, 34 Stat. 267 (1906), paving the way for

Oklahoma statehood. But like every other congressional statute that might

712 O.S. § 2202 (D) mandates that this this Court must take judicial notice of this Court’s docket.

32a

potentially be cited by the State, nothing in the Oklahoma Enabling Act contained

any language suggesting that Congress intended to terminate the Seminole

Reservation.

In fact, if anything, the Oklahoma Enabling Act shows that Congress intended that

Oklahoma statehood shall not interfere with existing treaty obligations (i.e.,

reservations). The Act explicitly prohibited Oklahoma’s forthcoming Constitution

from containing anything that could be construed as limiting the Federal

Government’s role in Indian affairs, e.g., its authority “to make any law or

regulation respecting such Indians.” 34 Stat. at 267.

Ultimately, because no Act of Congress bears any of the textual evidence of intent

to disestablish the Seminole Reservation, it simply does not matter that Oklahoma

has undergone changes since 1866. Nor does it matter that State officials might

have presumed for the last hundred or so years that the Seminole Reservation no

longer exists.

Because Oklahoma forever disclaimed all right and title in the limits owned or held by any

Indian, Tribe, or Nation; and that until the title to any such lands shall have been extinguished by

the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of

the United States. When Oklahoma entered the Union, it disclaimed any right to the jurisdiction

which lies solely within the United States regardless of the MCA or GCA because the State never

sought to change the State Constitution which deprives the State from exercising jurisdiction over

those lands regardless of race. Indian or non-Indian. The State often asserts that it has concurrent

jurisdiction over non-Indians but that is blatantly false according to the State Constitution.

Therefore, the State lacked subject-matter jurisdiction over the offense because exclusive

jurisdiction was ceded to the United States under the Enabling Act.

Congressional Intent and Prohibition

It is clear and unequivocal that the Oklahoma Enabling Act, supra, was a congressional

mandate, said Enabling Act created Statehood for Oklahoma under certain conditions and

restraints:

33a

Be it enacted by the Senate and House of Representatives of the United States of

America in Congress assembled, That the inhabitants of all that part of the area of

the United States now constituting the Territory of Oklahoma and the Indian

Territory, as at present described, may adopt a Constitution and become the State

of Oklahoma, as hereinafter provided: Provided, That nothing contained in the said

Constitution shall be construed to limit or impair the rights of person or property

pertaining to the Indians of said Territories (so long as such rights shall remain

unextinguished) or to limit or affect the authority of the Government of the United

States to make any law or regulation respecting such Indians, their lands, property,

or other rights by treaties, agreement, law, or otherwise, which it would have been

competent to make if this Act had never been passed....

Id. at § 1. p. 267-68, and § 25. Second, p. 279 (emphasis added).

When comparing the foregoing text to relevant well-settled law, it unequivocally

demonstrates that Congress explicitly prohibited jurisdiction of the State (Oklahoma) in Indian

Country; see, e.g., Cty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502

U.S. 251, 257-58 (1992) (noting “the rights of States, absent a congressional prohibition, to

exercise criminal (and, implicitly, civil) jurisdiction over non-Indians located on Reservation

lands”) (emphasis added). The Supreme Court’s decision in McBratney that states have exclusive

jurisdiction over crimes committed by non-Indians against non-Indians in Indian Country was

based on the idea that when admitted to the Union a state “has acquired criminal jurisdiction over

its own citizens and other white persons throughout the whole of the territory within its limits,...

and that [a] Reservation is no longer within the sole and exclusive jurisdiction of the United

States,” unless Congress expressly provides otherwise. McBratney, supra, at 623-24 (emphasis

added).

While McGirt, 140 S.Ct. at 2460, states: “[NJothing we might say today could unsettle

Oklahoma’s authority to try non-Indians for crimes against non-Indians on the lands in question.

United States v. McBratney, 104 U.S. 621, 624, 26 L.Ed. 869 (1882).” This would be correct only

absent a congressional prohibition. Petitioner presents an issue of first impression in the context

of his claims, because the congressional prohibition deprives the State of subject-matter

34a

jurisdiction over crimes committed—despite race—in Indian Country. Further to demonstrate an

abuse of discretion, which is clearly an erroneous conclusion in the judgment from the facts

presented. The District Court relied on Okla. Const., art 7, § 7 (a) to vest itself with jurisdiction

stating in part: (“The District Court shall have unlimited original jurisdiction of all justiciable

matters in Oklahoma.”) the Court omitted “except as otherwise provided in this Article, and

such powers of review of administrative action as mav be provided bv statute” (emphasis

added). Petitioner states because Okla. Const., art. 1, §3 establishes this is the exclusive

jurisdiction of the United States then art. 7, § 7 (a) is not applicable to Indian Country.

The law does not allow for a Court to assume “arbitrary jurisdiction” over subject-matter

because it is clearly established law that “[s]ubject-matter jurisdiction can never be waived or

forfeited.” Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012);

Union Pacific R. Co. v. Locomotive Engineers, 558 U.S. 67, 81, 130 S.Ct. 584, 175 L.Ed.2d 428

(2009) (quoting Arbaugh v. Y& HCorp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097

(2006), quoting U.S. v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002)). See

also Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

Further, because the violations discussed herein are structural error and it is clearly

established that structural error may occur at any critical stage of a criminal proceeding. See U.S. v.

Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). An error cannot be both

structural and subject to harmless-error review. See Neder v U.S,, 527 U.S. 1,8, 119 S.Ct. 1827,

144 L.Ed.2d 35 (1999). “[A]n error has been deemed structural if the error always results in

fundamental unfairness....” Weaver v. Massachusetts, 582 U.S.

, 137 S.Ct. 1899, 198 L.Ed.2d

420 (2017). “An error might also count as structural when its effects are too hard to measure, as is

true of the right to counsel of choice, or where the error will inevitably signal fundamental

35a

unfairness... ”McCoy v. Louisiana, 584 U.S.

., 138 S.Ct. 1500, 1511,200, L.Ed.2d 821 (2018).

Structural errors, as opposed to trial errors, affect the conduct of the entire trial and employee a

separate analysis. Robinson v. State, 2011 OK CR 15, ^[3, 255 P.3d 425, 428. Structural errors

“undermine the fairness of a criminal proceeding as a whole.” Id. quoting U.S. v. Dominguez

Benitez, 542 U.S. 74, 81,124 S.Ct. 2333, 2239, 159 L.Ed.2d 157 (2004). They are constitutional

deprivations affecting the framework within which the trial proceeds, rather than simply an error

in the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113

L.Ed.2d 302 (1991); Duclos v. State, 2017 OK CR 8, If 10,400 P.3d 781,784.

CONCLUSION

WHEREFORE, the Petitioner respectfully prays upon the Honorable Court to reverse and

remand this action to the District Court with instructions to Dismiss because Petitioner’s judgment

is void ab initio.

Respectfully submitted,

DEBRA K. HAMPTON, OBA # 13621

Hampton Law Office, PLLC

3126 S.Blvd.,# 304

Edmond, OK 73013

(405)250-0966

(866) 251-4898 (fax)

hamptonlaw@cox.net

Attorney for Petitioner

CERTIFICATE OF SERVICE

This is to certify that on the day of filing, I requested the Clerk to place one file-stamped

copy of this instrument in the Notice Receptacle of the Attorney General.

DEBRA K. HAMPTON

36a

unfairness....”McCoy v. Louisiana, 584 U.S.

., 138 S.Ct. 1500,1511,200, L.Ed.2d 821 (2018).

Structural errors, as opposed to trial errors, affect the conduct of the entire trial and employee a

separate analysis. Robinson v. State, 2011 OK CR 15, ^|3, 255 P.3d 425, 428. Structural errors

“undermine the fairness of a criminal proceeding as a whole.” Id. quoting US. v. Dominguez

Benitez, 542 U.S. 74, 81,124 S.Ct. 2333,2239, 159 L.Ed.2d 157 (2004). They are constitutional

deprivations affecting the framework within which the trial proceeds, rather than simply an error

in the trial process itself. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113

L.Ed.2d 302 (1991); Duclos v. State, 2017 OK CR 8,110,400 P.3d 781,784.

CONCLUSION

WHEREFORE, the Petitioner respectfully prays upon the Honorable Court to reverse and

remand this action to the District Court with instructions to Dismiss because Petitioner’s judgment

is void ab initio.

Respectfully submitted.

DEBRA K. HAMPTON, OBA #13621

Hampton Law Office, PLLC

3126 S.Blvd.,# 304

Edmond, OK 73013

(405) 250-0966

„ (866) 251-4898 (fax)

hamptonlaw@cox.net

Attorney for Petitioner

CERTIFICATE OF SERVICE

This is to certify that on the day of filing, I requested the Clerk to place one file-stamped

copy of this instrument in the Notice Receptacle of the Attorney General.

DEBRA k’hAMPTON"

37a

APPENDIX C

IN THE DISTRICT COURT IN AND FOR TULSA COUN'd?ISIRI£T cgjURT

STATE OF OKLAHOMA

“ ■

R D

APR 3 0 2021

Kenneth Funkhouser,

Petitioner,

vs.

STATE OF OKLAHOMA,

Respondent.

)

SSSfflS

CF-1983-133

ORDER DENYING PETITIONER'S “APPLICATION FOR POST-CONVICTION

RELIEF” FILED April 28, 2021

Comes on for consideration of Petitioner's “Application for Post-Conviction

Relief’ filed April 28, 2021. The Court has reviewed Petitioner’s application, the

docket sheet in this matter, as well as the pleadings filed by the Petitioner

subsequent thereto requesting post-conviction relief based on the recent decision of

the United Supreme Court in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020).

Petitioner’s application does not present a genuine issue of material fact requiring