Petition for Writ of Certiorari — Oklahoma, Petitioner v. Gage Christopher J. Shriver

NO. 21-_____

In the Supreme Court of the United States

STATE OF OKLAHOMA,

Petitioner,

v.

GAGE CHRISTOPHER J. 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

ASSISTANT SOLICITOR 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

JANUARY 5, 2022

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-2019-1276

Gage Christopher J. Shriver, Appellant v.

The State of Oklahoma, Appellee

Date of Final Opinion: October 7, 2021

__________

Oklahoma District Court (Rogers County)

No. CF-2015-394

The State of Oklahoma, Plaintiff v.

Gage Christopher J. 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 ......... 6

CONCLUSION............................................................ 8

iv

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

Opinion of the Court of Criminal Appeals,

State of Oklahoma (October 7, 2021) ....................... 1a

District Court of Rogers County, State of Oklahoma,

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

Page

CASES

McGirt v. Oklahoma,

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

Oklahoma v. Castro-Huerta,

No. 21-429 ................................................... 3, 6, 7, 8

STATUTES

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

18 U.S.C. § 1152 .......................................................... 2

18 U.S.C. § 1153(a) ..................................................... 3

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

JUDICIAL RULES

Sup. Ct. R. 12.7 ........................................................... 4

1

In the Supreme Court of the United States

STATE OF OKLAHOMA,

Petitioner,

V.

GAGE CHRISTOPHER J. 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 October 7, 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 October 7, 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. § 1152 (in relevant part)

Law governing (Indian country)

Except as otherwise expressly provided by law,

the general laws of the United States as to the

punishment of offenses committed in any place

within the sole and exclusive jurisdiction of the

United States, except the District of Columbia,

shall extend to the Indian country.

3

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

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 in Castro-Huerta should be

granted, and this petition should be held pending a

decision there. In the alternative, the petition in this

case should be granted.

1. On June 5, 2015, around 3:00 a.m., respondent

was driving his pickup truck when he plowed into

recent high school graduates Maranda Talley and

Noelle New as the girls walked along 530 Road in Rogers

4

County, Oklahoma (Tr. II 387-88, 401-02, 480). Ms.

New died as a result of being struck and dragged underneath respondent’s truck (Tr. 402; S.E. 83-98). Respondent was intoxicated, with a blood alcohol content

of .026 seven hours after the collision (Tr. III 723-24,

730, 735; Tr. V 1143; Tr. VII 1757, 1795, 1805-06, 1808).

His older brother Dakota was in the passenger’s seat

(Tr. V 1245). Dakota was also convicted of crimes

arising out of this incident; his case is the subject of a

pending petition for writ of certiorari in No. 21-486.

As a result of being run over, Ms. Talley sustained

a brain injury, was in a coma, endured a gash to the

back of her head, a broken nose, her lip was ripped off

of her face, her hand was smashed, and her fingers

were ripped back (Tr. II 403, 413, 467-69; S.E. 3-9).

Her face required reconstructive surgery (Tr. II 482).

As a further result of her injuries, Ms. Talley lost a

cheerleading scholarship to Oral Roberts University

(Tr. II 423-24).

Respondent was convicted of first-degree manslaughter, leaving the scene of a fatality accident, leaving the

scene of an accident involving injury, driving under

the influence resulting in great bodily injury, leaving

the scene of an accident resulting in damage to a

fixture, failure to report a personal injury accident,

and obstructing an officer. He was sentenced to twentyfive years’ imprisonment for manslaughter, ten days

in prison for failure to report a personal injury accident,

and one year of imprisonment for each of the other

counts.

 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.

5

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. The court

accepted the parties’ stipulations and found that respondent is an Indian who committed crimes within

the boundaries of the Cherokee Nation’s reservation.

App.38a.

The case then returned to the Oklahoma Court

of Criminal Appeals. The Court of Criminal Appeals

reversed the convictions “pursuant to McGirt.” App.7a.

Judge Lumpkin, who authored the opinion, expressed

in a footnote his agreement with Chief Justice Roberts’

dissent in McGirt. App.1a, n.1. Two judges wrote separate opinions.

Presiding Judge Rowland concurred in the result

but expressed his concern that the statute of limitations

for prosecuting respondent in federal court may have

expired. App.10a.

Vice Presiding Judge Hudson specially concurred

based on stare decisis, but stated his “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.” App.11a.

It is the State’s understanding that the federal

government will not be prosecuting respondent due to

the statute of limitations, but that the Cherokee Nation

had at least lodged a detainer before respondent was

discharged from state custody.

6

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. If the petition in Castro-Huerta is granted,

this petition should be held pending a decision in

Castro-Huerta and then disposed of as is appropriate.

In the alternative, this petition should be granted.

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, it is clear that Congress disestablished the

7

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 identical to

the second question presented in Castro-Huerta. For

the compelling reasons explained in the petition in

Castro-Huerta, review on this question is warranted.

8

CONCLUSION

The petition for a writ of certiorari in Castro-Huerta

should be granted, and the petition in this case should

be held pending a decision there and then disposed of

as is appropriate. In the alternative, this petition should

be granted.

Respectfully submitted,

JOHN M. O’CONNOR

ATTORNEY GENERAL

MITHUN MANSINGHANI

SOLICITOR GENERAL

COUNSEL OF RECORD

CAROLINE HUNT

JENNIFER CRABB

ASSISTANT ATTORNEYS GENERAL

BRYAN CLEVELAND

ASSISTANT SOLICITOR 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

JANUARY 5, 2022