Date: 04-01-2021

Case Style:

Case Number: 2021 OK CR 8

Judge: Kuehn

Court: Oklahoma Court of Criminal Appeals

Plaintiff's Attorney: Paul B. Smith

Defendant's Attorney: Larry R. Monard

Description: ¶1 Kadetrix Devon Grayson was tried by jury and convicted of Counts I and II, First Degree Murder, and Count III, Possession of a Firearm After Former Conviction of a Felony, in the District Court of Seminole County, Case No. CF-2015-370. Following the jury's recommendation, the Honorable George Butner sentenced Appellant to life imprisonment on each of Counts I and II, to run consecutively, and ten (10) years imprisonment on Count III, to run concurrently. Appellant must serve 85% of his sentences on Counts I and II before becoming eligible for parole consideration. Appellant appeals from these convictions and sentences.

¶2 Appellant raises five propositions of error in support of his appeal:

1. Counsel was ineffective because he refused to adequately communicate with Mr. Grayson and allow Mr. Grayson to assist in his own defense.

2. Counsel was ineffective for failing to question the medical examiner regarding Ms. Gokey's broken ribs.

3. The trial court lacked jurisdiction because all parties allegedly involved were Native American and the crimes allegedly happened on Seminole Nation Tribal Territory.

4. The trial court abused its discretion in refusing to give a "credibility of informers" instruction.

5. The accumulation of error in this case deprived Mr. Grayson of due process of law and a reliable sentencing proceeding in violation of the Fourteenth Amendment to the United States Constitution and Article II, §§ 7 and 20 of the Oklahoma Constitution.

¶3 In Proposition III Appellant claims the State of Oklahoma did not have jurisdiction to prosecute him. He relies on 18 U.S.C. § 1153 and McGirt v. Oklahoma, 591 U.S. __, 140 S.Ct. 2452 (2020).

¶4 On August 25, 2020, this Court remanded this case to the District Court of Seminole County for an evidentiary hearing. The District Court was directed to make findings of fact and conclusions of law on two issues: (a) Appellant's status as an Indian; and (b) whether the crime occurred within the boundaries of the Seminole Nation 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.

¶5 On October 26, 2020, the District Court filed its Findings of Fact and Conclusions of Law. The parties agreed by stipulation that Grayson is a member of the Seminole Nation, with some Indian blood, and was at the time of the crimes, and that the Seminole Nation is a federally recognized tribe.

¶6 The District Court found that Congress established a reservation for the Seminole Nation of Oklahoma. As the State took no position on the issue, the District Court found that these facts are uncontroverted:

1. The Treaty of Payne's Landing, 7 Stat. 368 (1832) (1832 Treaty), provided that the Seminoles would relinquish all claims to the lands they occupied in Florida and emigrate to "the country assigned to the Creek, west of the Mississippi River." Id. art. I. The 1832 Treaty was made to implement the Indian Removal Act, Pub. L. 21-148, 4 Stat 411 (1830).

2. The Treaty with the Creeks, 7 Stat. 417 (1833 Creek Treaty), provided that the Seminole Nation shall "have a permanent and comfortable home" by themselves on lands set aside for the Creek Nation. Id. art. IV. The Seminoles and the United States entered into the Treaty with the Seminole, confirming the Creek Treaty's provisions on March 28, 1833. Treaty with the Seminoles, art. IV, 7 Stat. 423 (1833) (1833 Seminole Treaty). The Seminole Nation's desire for genuine political autonomy resulted in the Treaty with the Creeks and Seminoles, 11 Stat. 699 (1856) (1856 Treaty). The 1856 Treaty, entered into on August 7, 1856, set forth specific boundaries for the Seminole Nation Reservation. Id. art. 1.

3. Ten years later, the United States and the Seminole Nation entered into the Treaty with the Seminole, 14 Stat. 755 (1866) (1866 Treaty). This redefined the boundaries of the Seminole Nation Reservation. For payment of the fixed sum of $325,362.00, the Seminoles ceded and conveyed the entirety of their previous territory to the United States, guaranteed to them under the 1856 Treaty. Id. art. 3. The Treaty established a new reservation, carved from part of the western half of the Creek Nation Reservation, to "constitute the national domain of the Seminole Indians." Id. art. 3. These boundaries were:

Beginning on the Canadian River where the line dividing the Creek lands according to the terms of their sale to the United States by their treaty of February 6, 1866, following said line due north to where said line crosses the north fork of the Canadian River; thence up said north fork of the Canadian River a distance sufficient to make two hundred thousand acres by running due south to the Canadian River; thence down said Canadian river to the place of beginning. Id. art. 3.

4. The precise boundaries of the Reservation set forth in the 1866 Treaty depended on the determination of the location of "the line dividing the Creek lands according to the terms of their sale to the United States by their treaty of February 6, 1866. . . ." 1866 Treaty, art. 3, 14 Stat. 755. The original line was surveyed by Rankin in 1867 but never formally approved. In 1871, the Department of the Interior instead adopted the line from the Bardwell survey, which was seven miles west of the Rankin line. This discrepancy led to considerable uncertainty for Seminole Nation citizens living within the disputed corridor. In 1881, the United States purchased those lands from the Creek Nation and included them in the Seminole Reservation. Seminole Nation v. United States, 316 U.S. 310, 313 (1942); 22 Stat. 257, 265 (1882).

5. The boundaries of the Seminole Nation of Oklahoma Reservation remain those defined in the 1866 Treaty, plus the land purchased from the Creek Nation in 1881.

¶7 The District Court found, and we agree, that the absence of the word "reservation" in the 1866 Treaty is not dispositive. McGirt, 140 S.Ct. at 2461. And subsequent acts of Congress referred to the Seminole Reservation. See, e.g., Act of March 3, 1891, 26 Stat. 989, 1016 (1891); 11 Cong. Rec. 2351 (1881). The record supports the District Court's findings that by treaty and purchase, the United States established a reservation for the Seminole Nation of Oklahoma.

¶8 The District Court found that Congress has not disestablished the Seminole Nation Reservation. After Congress has established a reservation, only Congress may disestablish it by clearly expressing its intent to do so; usually, this will require "an explicit reference to cession or other language evidencing the present and total surrender of all tribal interests." McGirt, 140 S.Ct. at 2463 (internal quotation omitted). The District Court found no explicit indication or expression of Congressional intent to disestablish the Seminole Reservation. The State took no position on this issue, and the Court found:

1. Allotment did not disestablish the Reservation. Allotment of Seminole tribal lands was formally authorized in 1893. Act of March 3, 1893, 27 Stat. 612, at 645. The Dawes Commission and the Seminole Nation reached an allotment agreement on December 16, 1897, ratified by Congress on July 1, 1898. Act of July 1, 1898, 30 Stat. 567, at 567. This created three land classes based on appraised value; each tribal member would be allotted a share of land of equal value, with sole right of occupancy; the allotments were inalienable until the date of the patent, with some leases allowed. Id. Nowhere in either the allotment statute or the agreement is there language indicating an intent to disestablish the Reservation. There is no mention of cession, a fixed sum in return for total surrender of tribal claims, or any other text supporting disestablishment. As McGirt made clear, allotment may be a step towards disestablishment but is not itself a clear expression of the intention to disestablish a reservation. McGirt, 140 S.Ct. at 2465; see also Mattz v. Arnett, 412 U.S. 481, 497 (allotment entirely consistent with continued reservation status).

2. Although Congress has, from time to time, imposed restrictions on the sovereignty of the Seminole Nation, these restrictions did not disestablish the Reservation. For example, the Act of March 3, 1903, stated that the tribal government of the Seminole Nation "shall not continue" past March 4, 1906. Act of March 3, 1903, 34 Stat. 982, 1008 (1903). However, in March 1906, Congress did not terminate the Seminole Nation tribal government. Instead, in the Five Tribes Act, Congress recognized that the existence of the Seminole Nation tribe and tribal government "are hereby continued in full force and effect for all purposes authorized by law." Five Tribes Act, 34 Stat. 137, 148 (1906). This Act restricted the tribal government's power, but it neither terminated the Nation nor expressly indicated an intent to disestablish the Reservation.

3. Oklahoma statehood did not disestablish the Reservation. The Oklahoma Enabling Act, 34 Stat. 267 (1906), authorized Oklahoma statehood. It contains nothing suggesting that, by allowing statehood, Congress intended to disestablish the Seminole Reservation. The Act expressly prohibited the Oklahoma constitution from limiting the federal government's authority to make laws or regulations respecting Indians living within the new state's boundaries. Id., 34 Stat at 267-68. Congress never disestablished the Seminole Reservation, and it currently exists.

4. The parties stipulated to the current boundaries of the Seminole Nation Reservation. The parties further stipulated that the location of the crimes charged was within the historical boundaries of the Seminole Nation of Oklahoma Reservation.

5. The District Court adopted a map, attached as Exhibit A to the Seminole Nation's brief filed in the District Court, showing those stipulated boundaries. The District Court first noted that, with one deviation, the borders of Seminole County set forth in the Oklahoma Constitution are defined by reference to the Seminole Reservation boundaries:

Beginning at a point where the east boundary line of the Seminole nation intersect[s] the center line of the South Canadian River; thence north along the east boundary line of said Seminole nation to its intersection with the township line between townships seven and eight North; thence east along said township line to the southwest corner of section thirty-five, township eight North, range eight East; thence north along the section line between sections thirty-four and thirty-five, in said township and range, projected to its intersection with the centerline of the North Canadian River; thence westward along the center line of said river to its intersection with the east boundary line of Pottawatomie County; thence southward along said east boundary line to its intersection with the centerline of the South Canadian River; thence down along the center line of said river to the point of beginning. Wewoka is hereby designated the County Seat of Seminole County.

Okla. Const. art. 17, § 8.

¶9 The District Court described the Reservation northeastern boundary thus: County lines depart from the Reservation border, beginning at the point where the Reservation's eastern boundary intersects with the line between townships seven and eight north (just southwest of the intersection of East/West Rd. 131 and State Highway 56). From that point, the County line runs due east for slightly less than three miles (until reaching the southwest corner of section 35 of Township 8 North, Range 8 East). Then the County line runs due north until the midpoint of the North Canadian River, at which point the County line runs along the river back toward the Seminole Nation.

¶10 The District Court found that Congress has never, by treaty or statute, either erased the Seminole Nation Reservation boundaries or expressed an intent to do so or disestablish the Reservation otherwise. The record supports the District Court's findings that the United States has not disestablished the Seminole Nation of Oklahoma Reservation.

¶11 After making these findings of fact, the District Court reached the following conclusions of law:

1. The Defendant/Appellant is an "Indian" as defined by the Oklahoma Court of Criminal Appeals.

2. By applying the analysis set out in McGirt, Congress established a reservation for the Seminole Nation of Oklahoma.

3. By using the analysis set out in McGirt, Congress has not explicitly erased the reservation boundaries and disestablished the Seminole Nation Reservation.

4. The Seminole Nation of Oklahoma is "Indian Country" for purposes of criminal law jurisdiction.

5. The Crimes that Defendant/Appellant was convicted of occurred in Indian Country.

¶12 In its Supplemental Brief, Appellee does not contest the District Court's findings and conclusions. The record supports the findings of fact, and we adopt the conclusions of law. Appellant is a member of the Seminole Nation, and the crimes were committed within the boundaries of the Seminole Nation Reservation. The ruling in McGirt applies to this case. The District Court of Seminole County did not have jurisdiction to try Appellant.

¶13 Accordingly, Proposition III is granted. Propositions I, II, IV, and V are moot.

Outcome: The Judgment and Sentence of the District Court of Seminole County is VACATED, and the case is REMANDED with instructions to DISMISS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2020), the MANDATE is STAYED for twenty (20) days from the delivery and filing of this decision.

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