Petition for Writ of Certiorari — Oklahoma, Petitioner v. Justin Dale Little

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Criminal Appeals,

State of Oklahoma (June 17, 2021) .......................... 1a

District Court of Tulsa County, State of

Oklahoma, Findings of Fact and Conclusions

of Law (May 6, 2021) ............................................. 10a

Court of Criminal Appeals, State of Oklahoma,

Order Remanding for Evidentiary Hearing

(January 15, 2021) .................................................. 15a

App.1a

OPINION OF THE COURT OF CRIMINAL

APPEALS, STATE OF OKLAHOMA

(JUNE 17, 2021)

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

________________________

JUSTIN DALE LITTLE,

Appellant,

v.

THE STATE OF OKLAHOMA,

Appellee.

________________________

Case No. F-2020-125

NOT FOR PUBLICATION

Before: Dana KUEHN, President Judge.,

Scott ROWLAND, Vice President Judge.,

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

Robert L. HUDSON, Judge.

OPINION

ROWLAND, VICE PRESIDING JUDGE:

Appellant Justin Dale Little was tried by jury

and convicted of First Degree Murder, in violation of

21 O.S.Supp.2012, § 701.7, in the District Court of

Tulsa County, Case No. CF-2018-1700. In accordance

with the jury’s recommendation, the Honorable Sharon

App.2a

Holmes, District Judge, sentenced Little to life in prison

with the possibility of parole. Little raises eight issues

for review. This appeal turns on whether Little is an

Indian as defined by federal law, and whether the

alleged crime was committed within Indian country as

that term is defined by federal law. Because the

answer to both questions is yes, federal law grants

exclusive criminal jurisdiction to the federal government. Because we find relief is required on Little’s

jurisdictional challenge in Proposition 1, his other claims

are moot.

1. Controlling Law: McGirt v. Oklahoma

In McGirt v. Oklahoma, 591 U.S. ___, 140 S.Ct.

2452 (2020), the Supreme Court held that land set

aside for the Muscogee Creek Nation in the 1800’s was

intended by Congress to be an Indian reservation, and

that this reservation remains in existence today for

purposes of federal criminal law because Congress has

never explicitly disestablished it.

2. Jurisdiction

Federal and tribal governments, not the State

of Oklahoma, have jurisdiction to prosecute crimes

committed by or against Indians on the Muscogee

Reservation. 18 U.S.C. §§ 1152, 1153; McGirt, 140 S.Ct.

at 2479-80. The charge of first degree murder filed

against Little in this case fits squarely within the crimes

subject to exclusive federal jurisdiction. See State v.

Klindt, 1989 OK CR 75, ¶ 3, 782 P.2d 401, 403 (“[T]he

State of Oklahoma does not have jurisdiction over

crimes committed by or against an Indian in Indian

Country.”)

App.3a

3. Two Questions Upon Remand

On January 15, 2021, this Court remanded this

case to the District Court of Tulsa County for an

evidentiary hearing for fact finding on Little’s claim

that the State of Oklahoma did not have jurisdiction

to prosecute him because he is an Indian and his crime

occurred in Indian country. The District Court was

directed to make findings of fact and conclusions of

law on two issues: (a) Little’s status as an Indian; and

(b) whether the crime occurred within the boundaries

of the Muscogee Reservation. Our Order provided that,

if the parties agreed as to what the evidence would show

with regard to the questions presented, the parties could

enter into a written stipulation setting forth those

facts, and no hearing would be necessary.

On February 19, 2021, the parties entered a written joint stipulation in which they agreed: (1) that Little

has some Indian blood; (2) that he was a registered

member of the Seminole Nation on the date of the

charged offense; (3) that the Seminole Nation is a

federally recognized tribe; and (4) that the charged

crime occurred within the boundaries of the Muscogee

Reservation. The District Court accepted the parties’

stipulation.

The District Court filed its Findings of Fact and

Conclusions of Law in this Court on May 6, 2021. The

District Court found the facts recited above in accordance with the stipulation. The District Court concluded

that Little is an Indian under federal law and that the

charged crime occurred within the boundaries of the

Muscogee Reservation. The District Court’s findings and

conclusions are supported by the record. The ruling in

McGirt governs this case and requires us to find the

App.4a

State of Oklahoma was without jurisdiction to prosecute

Little. Accordingly, we grant Little’s Proposition 1.

DECISION

The Judgment and Sentence of the District

Court is VACATED and this matter is 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.

AN APPEAL FROM THE DISTRICT COURT

OF TULSA COUNTY THE HONORABLE

SHARON HOLMES, DISTRICT JUDGE

APPEARANCES AT TRIAL

Jason Lollman

Adam Haselgren

Asst. Public Defenders

Tulsa County Public Defender’s Office

423 S. Boulder Ave.

Suite 300

Tulsa, OK 74103

Counsel for Defendant

Larry Edwards

Kevin Keller

Asst. District Attorneys

Tulsa County Courthouse

500 S. Denver, Rm. 900

Tulsa, OK 74103

Counsel for State

App.5a

APPEARANCES ON APPEAL

Adam Barnett

Nicole Herron

Asst. Public Defenders

Tulsa County Public Defender’s Office

423 S. Boulder Ave.

Suite 300

Tulsa, OK 73103-3805

Counsel for Appellant

Mike Hunter

Attorney General of Oklahoma

Randall Young

Tessa Henry

Assistant Attorneys General

313 N.E. 21st Street

Oklahoma City, OK 73105

Counsel for Appellee

Erik Grayless

First Assistant District Attorney

500 S. Denver, Rm. 900

Tulsa, OK 74103

Counsel for District Attorney

Opinion by: Rowland, V.P.J.

Kuehn, P.J.: Concur

Lumpkin, J.: Concur in Results

Lewis, J.: Concur

Hudson, J.: Specially Concur

App.6a

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’s scholarly

and judicially penned dissent, actually following the

Court’s precedents and required analysis, vividly reveals

the failure of the majority opinion to follow the rule of

law and apply over a century of precedent and history,

App.7a

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 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

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 sections 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.8a

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.9a

HUDSON, J., SPECIALLY CONCURS:

Today’s decision dismisses a conviction for first

degree murder 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 these crimes on the Muscogee Reservation. Under

McGirt, the State has no jurisdiction to prosecute

Appellant for the crimes charged 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 farreaching impact on the criminal justice system in

Oklahoma and the need for a practical solution by

Congress. See, e.g., Bosse v. State, 2021 OK CR 3, 484

P.3d 286 (Hudson, J., Concur in Results); Hogner

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

Specially Concurs); and Krafft v. State, No. F-2018340 (Okl. Cr., Feb. 25, 2021) (Hudson, J., Specially

Concurs) (unpublished).

App.10a

DISTRICT COURT OF TULSA COUNTY,

STATE OF OKLAHOMA, FINDINGS OF

FACT AND CONCLUSIONS OF LAW

(MAY 6, 2021)

IN THE DISTRICT COURT FOR TULSA COUNTY

STATE OF OKLAHOMA

________________________

JUSTIN DALE LITTLE,

Appellant,

v.

THE STATE OF OKLAHOMA,

Appellee.

________________________

Case Nos.: F-2020-125

Before: Sharon HOLMES, District Court Judge.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The following Findings of Fact and Conclusions of

Law follow the Oklahoma Court of Criminal Appeals’

(“OCCA”) January 15, 2021 Order Granting Appellant’s

Request to Remand for Evidentiary Hearing; Denying

Appellant’s Motion for Supplementation of Record;

Remanding Matter for Evidentiary Hearing, and

Granting State’s Motion to Stay Briefing Schedule

Pending Outcome of Evidentiary Hearing (“Remand

Order”). Nicole Dawn Herron appeared on behalf of

App.11a

Appellant, Justin Dale Little, whose appearance was

waived. This Court finds an evidentiary hearing is

unnecessary, as “the parties agree as to what the

evidence will show with regard to the questions

presented,” and have accordingly entered “into a written

stipulation setting forth those facts upon which they

agree and which answer the questions presented.”

Order Remanding at 5.

The Appellant, in Proposition One of his brief claims

that the District Court lacked jurisdiction to try him

as he is a citizen of the Seminole 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 crimes 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 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. The Court finds as follows:

Findings of Fact

1. Justin Dale Little is the named Appellant in the

above-styled matter.

2. The parties stipulated that the crimes alleged

against defendant occurred on April 22, 2018.

3. The parties stipulated that Appellant has been

enrolled with the Seminole Nation since September 18,

1997, and he possesses a 45/64 degree of Seminole Blood.

App.12a

4. The parties stipulated that the Seminole Nation

is an Indian Tribe Entity recognized by the federal

government.

5. The parties stipulated that the crimes occurred

at or near 600 North Birch Street in Jenks, Oklahoma.

This location falls within the Muscogee (Creek) Reservation.

Conclusions of Law

Regarding the first determination, the Court

answers the first question in the affirmative. The Court

adopts the Agreed Stipulations filed by the parties on

February 19, 2021. Justin Dale Little is the named

Defendant in this matter and he has 45/64 degree of

Seminole blood.

Additionally, the Court answers the second part

of the inquiry in the affirmative. The Court adopts

the Agreed Stipulations and makes findings of fact

thereon. Justin Dale Little has been recognized as a

citizen of the Seminole Nation since September 18,

1997 and was recognized as a citizen of the Seminole

Nation at the time of the offense. Finally, the Muscogee

(Creek) Nation is a federally recognized tribe. Therefore,

Justin Dale Little is recognized as an Indian by a tribe

and the federal government.

Having answered both inquires in the affirmative, this Court concludes that Justin Dale Little 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

App.13a

boundaries of the Creek Reservation, referred to as

Indian Country. The Court finds as follows:

Findings of Fact

1.

The parties stipulated that the crimes occurred

at or near 600 North Birch Street in Jenks,

Oklahoma.

2.

The parties stipulated that the abovedescribed location falls within the Muscogee

(Creek) Reservation.

Conclusions of Law

The final inquiry is answered in the affirmative.

This Court adopts the parties’ Agreed Stipulations

and makes findings of fact thereon. The crime occurred

at a location 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 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.

WHEREFORE, this Court finds that Justin Dale

Little 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.

App.14a

IT IS SO ORDERED this 6th day of May, 2021.

/s/ Sharon Holmes

District Court Judge

Approved as to form:

/s/ Randall Young

Assistant Attorney General

/s/ Nicole Herron

Assistant Public Defender

App.15a

COURT OF CRIMINAL APPEALS,

STATE OF OKLAHOMA, ORDER

REMANDING FOR EVIDENTIARY HEARING

(JANUARY 15, 2021)

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

________________________

JUSTIN DALE LITTLE,

Appellant,

v.

THE STATE OF OKLAHOMA,

Appellee.

________________________

Case No. F-2020-125

Before: Dana KUEHN, Presiding Judge.,

Scott ROWLAND, Vice President Judge.,

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

Robert L. HUDSON, Judge.

ORDER GRANTING APPELLANT’S REQUEST

TO REMAND FOR EVIDENTIARY HEARING;

DENYING APPELLANT’S MOTION FOR

SUPPLEMENTATION OF RECORD;

REMANDING MATTER FOR EVIDENTIARY

HEARING; AND GRANTING STATE’S MOTION

TO STAY BRIEFING SCHEDULE PENDING

OUTCOME OF EVIDENTIARY HEARING

App.16a

Appellant filed his brief in chief on July 20, 2020,

appealing his First Degree Murder conviction in the

District Court of Tulsa County, Case No. CF-20181700. His first claim on appeal challenges the State’s

jurisdiction to prosecute him. Appellant also filed, on

that same day, a Motion for Supplementation of the

Record and Request to Remand for Evidentiary Hearing,

challenging defense counsel’s effectiveness, namely

counsel’s failure to raise in the district court the

State’s lack of subject-matter jurisdiction to prosecute

him. McGirt v. Oklahoma, 591 U.S., 140 S.Ct. 2452

(2020). Appellant claims the State lacked jurisdiction

to prosecute him because he is an Indian and the crime

was committed in Indian country. Appellant requests

this Court remand the matter for an evidentiary hearing

to supplement the record concerning his ineffective

assistance of counsel claim.

On November 17, 2020, the State of Oklahoma,

by and through Mike Hunter, Attorney General of the

State of Oklahoma, filed a motion to stay briefing

schedule. The State’s response brief was due November

17, 2020. Appellant’s motion asks the Court’s permission

to supplement the record on appeal with his Seminole

Tribal Membership card which shows his degree of

Indian blood (45/64 Indian blood). In its Motion, the

State does not dispute that Appellant is an enrolled

member of the Seminole Nation, a federally recognized

tribe, with a blood quantum of 45/64; that he was an

enrolled member at the time the crime was committed;

and that the crime occurred within the boundaries of

the Muscogee Creek Nation Reservation.

To resolve Appellant’s jurisdiction and ineffective

assistance of counsel claims, we must determine

whether Appellant is an Indian who committed a major

App.17a

crime on an Indian reservation. Because these claims

may be dispositive of this appeal, the State requests

briefing in this matter be stayed pending this Court’s

ruling on Appellant’s motion to supplement and his

request for an evidentiary hearing.

IT IS THEREFORE THE ORDER OF THIS

COURT that Appellant’s Request to Remand for

Evidentiary Hearing is GRANTED. Because the parties

will have the opportunity to present evidence or

stipulations for the district court’s consideration on

remand, which will become part of the appellate record,

Appellant’s Motion to Supplement the Record is

DENIED. The State’s motion to stay briefing schedule

pending the outcome of the evidentiary hearing is

GRANTED.

Appellant’s claim raises two separate questions:

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

on the Muscogee Creek Nation Reservation. 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 his legal status as an Indian

and as to the location of the 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

App.18a

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, 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 Reservation. 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 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.

1 See 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.19a

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 and his Motion to Supplement

the Record, each filed July 20, 2020; and the State’s

Motion to Stay Briefing Schedule and Response to the

Appellant’s Motion, filed November 17, 2020.

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

Sharon K. Holmes, 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 ___ day of _____, 2021.

App.20a

/s/ Dana Kuehn

Presiding Judge

/s/ Scott Rowland

Vice Presiding Judge

/s/ Gary L. Lumpkin

Judge

/s/ David B. Lewis

Judge

/s/ Robert L. Hudson

Judge

ATTEST:

/s/ John D. Hadden

Clerk