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F-2018-790

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Robert Eric Wadkins v The State Of Oklahoma

F-2018-790

Filed: Mar. 21, 2023

Not for publication

Prevailing Party: Robert Eric Wadkins

Summary

Robert Eric Wadkins appealed his conviction for First Degree Rape and Kidnapping. Conviction and sentence were vacated, meaning Wadkins will not serve time for these charges. Judge Hudson dissented in the opinion. In this case, Wadkins was convicted of serious crimes, but he argued that he should not be judged by Oklahoma courts because he is of Indian heritage, and the offenses took place on land considered Indian country. A previous Supreme Court decision (McGirt v. Oklahoma) stated that certain crimes by Indians on tribal land should be handled by the federal government, not state courts. The court looked closely at whether Wadkins was recognized as an Indian at the time of the crimes. Although Wadkins has some Indian blood and became a member of the Choctaw Nation after the crimes, the court found he wasn't recognized as Indian during the crime, based on several factors including his lack of enrollment in the tribe at that time. However, Wadkins had a Certificate of Degree of Indian Blood (CDIB) and received Indian health services for many years. The Court of Criminal Appeals decided that Wadkins does qualify as an Indian, meaning the state court should not have prosecuted him. Therefore, his conviction was overturned, and the case was sent back to the lower court to dismiss the charges.

Decision

The Judgment and Sentence of the district court is VACATED and the 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.

Issues

  • Was there a jurisdictional issue related to Wadkins's claim of Indian status and its impact on the applicability of Oklahoma law?
  • Did the district court err in determining that Wadkins failed to prove he was recognized as an Indian by a tribe or federal government at the time of the offenses?
  • Was the finding that city crimes occurred in Indian country sufficient to establish that Oklahoma lacked jurisdiction to prosecute Wadkins?
  • Did Wadkins's subsequent enrollment in the Choctaw Nation have any bearing on his recognition as Indian status for purposes of this legal matter?
  • Did the district court properly evaluate the factors of tribal affiliation and government assistance, and their relation to Wadkins's claim of Indian recognition?
  • Was the evidence of Wadkins's blood quantum sufficient to support his claim of Indian status, despite not being formally enrolled at the time of the offenses?

Findings

  • the court remanded the matter for an evidentiary hearing to determine Wadkins's Indian status and whether the crime occurred in Indian country.
  • the district court found Wadkins failed to demonstrate he was recognized as an Indian by the Choctaw Nation or the federal government at the time of the crimes.
  • the court concluded that Wadkins was an Indian for purposes of federal criminal law and that the State lacked jurisdiction over the matter.
  • the Judgment and Sentence of the district court was vacated and the matter was remanded with instructions to dismiss.

F-2018-790

Mar. 21, 2023

Robert Eric Wadkins

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

JOHN MADEN ROWLAND, PRESIDING JUDGE:

Appellant Robert Eric Wadkins appeals his Judgment and Sentence from the District Court of Choctaw County, Case No. CF-2017-126, for First Degree Rape (Count 1), in violation of 21 O.S.2011, § 1115 and Kidnapping (Count 2), in violation of 21 O.S.Supp.2012, § 741, each after former conviction of two or more felonies. The Honorable Gary L. Brock, Special Judge, presided over Wadkins’s jury trial and sentenced Wadkins, in accordance with the jury’s verdict, to forty years imprisonment on Count 1 and five years imprisonment on Count 2, to be served consecutively. Wadkins raises seven claims on appeal. We find relief is required on Wadkins’s jurisdictional challenge in Proposition 1, rendering his other claims moot.

1. Jurisdiction

We must decide whether Wadkins sufficiently demonstrated he qualifies as Indian and thus was not subject to the jurisdiction of Oklahoma’s courts. Wadkins claims Oklahoma lacked jurisdiction because he is Indian and the charged crimes occurred in Indian country. McGirt U. Oklahoma, 140 S.Ct. 2452 (2020). In McGirt, the Supreme Court held the reservation Congress established for the Muscogee (Creek) Nation remains in existence today because Congress has never explicitly disestablished it. That ruling meant Oklahoma lacked jurisdiction to prosecute McGirt, an Indian, because he committed his crimes on the Creek Reservation, i.e. in Indian country, and the federal government has jurisdiction of such criminal matters under the federal Indian Major Crimes Act (IMCA), 18 U.S.C. § 1153.

In light of McGirt, we remanded this case to the district court to conduct an evidentiary hearing to determine: (1) Wadkins’s Indian status; and (2) whether the crime occurred in Indian country pursuant to United States U. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012); United States U. Prentiss, 273 F.3d 1277, 1280 (10th Cir. 2001); Goforth v. State, 1982 OK CR 48, I 6, 644 P.2d 114, 116. There is no dispute that the charged rape and kidnapping took place in Indian Country, i.e. the Choctaw Reservation. This claim turns on the district court’s resolution of the first question on remand, namely Wadkins’s Indian status. Indian status has two components. Defendants, like Wadkins, must produce prima facie evidence that: (1) he or she has some Indian blood; and (2) he or she was recognized as an Indian by a tribe or the federal government. See State v. Klindt, 1989 OK CR 75, IT 5, 782 P.2d 401,403 (holding a defendant has the burden to prove his or her Indian status for dismissal based on lack of state jurisdiction). The parties agree that Wadkins has some Indian blood and satisfies the first prong of the Indian status test. Indian blood alone, however, is insufficient to warrant federal criminal jurisdiction because jurisdiction over Indians in Indian country does not derive from a racial classification but from the special status of a formerly sovereign people. St. Cloud v. United States, 702 F.Supp. 1456, 1461 (D.S.D. 1988).

Within the ambit of federal criminal jurisdiction, the term Indian includes both racial and political components of the Indian community. Parker v. State, 2021 OK CR 17, I 39, P.3d The recognition prong in essence probes whether the Native American has a sufficient non-racial link to a formerly sovereign people. St. Cloud, 702 F.Supp. at 1461. While recognition is often proven by evidence of tribal membership, Parker, 2021 OK CR 17, 136, recognition is in dispute in this case because Wadkins, although presently a citizen of the Choctaw Nation, was not a member when the charged offenses occurred.

At the evidentiary hearing, the district court accepted the parties’ Agreed Stipulation that: (1) the locations of the charged crimes are within the historical boundaries of the Choctaw Nation; (2) the Choctaw Nation is a federally recognized tribe; (3) Wadkins has some Indian blood; and (4) he became an enrolled member of the Choctaw Nation after the commission of the charged offenses. The evidentiary portion of the hearing focused on whether or not Wadkins was recognized by the Choctaws at the time of the charged offenses. The district court heard from three witnesses, including Wadkins, and took the matter under advisement. It later concluded that Wadkins failed to show through his testimony and admitted exhibits that he was recognized as Indian by the Choctaws or the federal government at the time of the crimes.

The district court issued written Findings of Fact and Conclusions of Law, memorializing its ruling, stating:

1. The parties entered into a stipulation that Mr. Wadkins has a Certificate of Degree of Indian Blood (CDIB). That degree is 3/16 Indian blood of the Choctaw Tribe.
2. Mr. Wadkins was not an enrolled member of the Choctaw Tribe at the time of the offense. He did not possess a CDIB Card, nor had he applied for one.
3. Mr. Wadkins was convicted in May of 2018. He did not become an enrolled member of the Choctaw Nation of Oklahoma until October 9, 2020. The Defendant now has a Choctaw Nation Membership Card.
4. This Court finds that at the time the crime was committed by Mr. Wadkins [he was not recognized as Indian because of his] failure to seek membership in the Choctaw Nation until after the conviction, [his] voluntary associations with the Universal Aryan Brotherhood (a white supremacist gang), his unfamiliarity with who tribal leaders were, [the] lack of any credible evidence that any benefits he may have received from the tribe were exclusive to members of the Choctaw Nation, [and] no credible evidence that the Defendant had social recognition as an Indian through living on a reservation and participating in Indian social life.

5 Based upon these findings, the district court concluded that Wadkins failed to meet the standards set forth in the Rogers Test. Although it concluded the crimes occurred in Indian country, the district court concluded Mr. Wadkins’ status was not Indian at the commission of the offense or Trial or for the purpose of denying the State of Oklahoma jurisdiction.

We set forth our standard of review of a district court’s rulings involving Indian country jurisdiction in Parker, 2021 OK CR 17, I 34: We afford a district court’s factual findings that are supported by the record great deference and review those findings for an abuse of discretion. Young U. State, 2000 OK CR 17, I 109, 12 P.3d 20, 48. We decide the correctness of legal conclusions based on those facts without deference. See Gomez U. State, 2007 OK CR 33, I 5, 168 P.3d 1139, 1141-42 (reviewing a trial court’s ruling on a motion to suppress evidence based on a complaint of an illegal search and seizure with deference to the trial court’s factual findings unless not supported by competent evidence and a trial court’s legal conclusions based on those facts de novo); Salazar v. State, 2005 OK CR 24, I 19, 126 P.3d 625, 630 (giving district court’s factual findings strong deference, but deciding without deference ultimate claim of trial counsel effectiveness).

Wadkins maintains on appeal that his subsequent tribal enrollment coupled with his membership eligibility at the time of the charged offenses is sufficient to prove recognition. The State, on the other hand, asks us to adopt a bright line test which bases recognition solely on tribal enrollment at the time of the offense(s). In Parker, we rejected a claim that eligibility alone was sufficient to establish tribal recognition and upheld the district court’s ruling that Parker failed to prove the recognition prong of the Indian status test. Id. 2021 OK CR 17, II 37-42. We also rejected the State’s plea to adopt a bright line test basing recognition solely on tribal enrollment at the time of the offense. Id. 2021 OK CR 17, I 37. We accepted as settled that a person may be Indian for purposes of federal criminal jurisdiction whether or not the person is formally enrolled in any tribe and cited with approval the factors (sometimes referred to as the St. Cloud factors) that most courts consider in some fashion in determining recognition. Id. 2021 OK CR 17, II 36, 40. See also United States U. Bruce, 394 F.3d 1215, 1224-25 (9th Cir. 2005) (citing numerous cases holding that lack of enrollment is not determinative of recognition); United States U. Drewry, 365 F.3d 957, 961 (10th Cir. 2004), vacated on other grounds by Drewry v. United States, 543 U.S. 1003 (2005) (affirming tribal enrollment is not the only way to prove a person is Indian for federal criminal jurisdiction); St. Cloud, 702 F.Supp. at 1461 (accepting a person may still be an Indian though not enrolled with a recognized tribe).

The factors courts consider for Indian recognition are:
1) tribal enrollment;
2) government recognition formally and informally through receipt of assistance reserved only to Indians;
3) enjoyment of the benefits of tribal affiliation; and
4) social recognition as an Indian through residence on a reservation and participation in Indian social life.

Parker, 2021 OK CR 17, I 40. See also Bruce, 394 F.3d at 1224; Drewry, 365 F.3d at 961. The district court considered these factors and found that all the factors weighed against recognition.

The district court gave no weight to Wadkins’s tribal eligibility or subsequent enrollment. It found Wadkins’s admitted medical records showing receipt of Indian health services throughout his life of little weight because such care is not reserved exclusively to tribal members. It also gave little, if any, weight to his testimony about his involvement with tribal social life, finding his testimony self-serving and opportunistic. It gave significant weight to Wadkins’s nine-year membership (2000-2009) in the Universal Aryan Brotherhood prison gang, his misidentification of the Choctaw tribal chief, and his lack of a CDIB card at the time of the charged offenses.

Our review of the record shows that the district court erred in holding Wadkins failed to satisfy the recognition prong of the Indian status test. Wadkins presented ample prima facie evidence he is an Indian. Prima facie evidence is evidence that is ‘good and sufficient on its face, i.e., ‘sufficient to establish a given fact, or the group or chain of facts constituting the defendant’s claim or defense, and which if not rebutted or contradicted, will remain sufficient to sustain a judgment in favor of the issue which it supports. Tryon U. State, 2018 OK CR 20, I 74, 423 P.3d 617, 639 (quoting Black’s Law Dictionary 1190 (6th ed. 1990)).

A. Tribal Enrollment

Tribal enrollment is the first factor in the Indian recognition analysis. Tribal membership is generally dispositive of recognition. Wadkins did not produce documentary evidence to support his testimony about his tribal affiliation with the exception of his medical records. United States U. Nowlin, 555 Fed.Appx 820, 823 (10th Cir. 2014) (observing first factor is dispositive if the defendant is an enrolled tribal member). The evidence showed Wadkins received his formal tribal membership card from the Choctaw Nation in December 2020, after the commission of the instant offenses. He testified, without dispute, that he attempted to apply for a membership card nearly twenty years earlier, but was unable to complete the process because he was not yet eighteen and could not sign the application on his own. Although Wadkins was not an enrolled member of the Choctaw Nation until 2020, he testified, without challenge, that he had a Certificate of Degree of Indian Blood (CDIB) card with reference numbers since infancy. Wadkins also testified that his CDIB number was the same as the number on his Tribal Membership Card.

Notably, the State did not refute Wadkins’s assertions about his CDIB card nor object to them. Instead, the State accepted, for all intents and purposes, that Wadkins possessed a CDIB card. The district court’s conclusion that Wadkins did not possess a CDIB card and had not applied for one is therefore not supported by the record.

B. Receipt of Government Assistance Reserved for Indians

Formal or informal government recognition of an Indian may be established through receipt of assistance reserved only for Indians. Here, Wadkins received a CDIB card from the Choctaw Nation in infancy which he used to access medical care at Choctaw medical facilities for more than twenty years. He testified that he presented his CDIB card and was not charged for his treatment at Choctaw medical facilities. Wadkins’s admitted medical records listed his information as Tribe: CHOCTAW NATION OF OKLAHOMA and Eligibility: CHS & DIRECT. While his medical records showed treatment at Choctaw facilities dating back to 1997, Wadkins’s most recent medical treatment at tribal medical centers in 2017 occurred approximately six weeks before and six weeks after the charged offenses.

To show the medical services were reserved to Indians only, Wadkins admitted the Choctaw Nation’s Eligibility for Services webpage. According to the webpage, eligibility for care at Choctaw Nation Health Service facilities is reserved exclusively for Native Americans with a few exceptions. A Native American must present a CDIB card, membership card, or letter of descendancy from a federally recognized tribe to be eligible for free health services. Non-Indians can receive services under a few enumerated exceptions-emergencies, adopted/step/foster children of an eligible parent, and non-eligible spouses. Wadkins received treatment as an eligible Native American as stated in his medical records and not under any exceptions. Courts have accepted evidence of consistent medical treatment of an eligible Native American at an Indian health facility as sufficient proof of government recognition by providing assistance reserved solely for Indians. Compare United States U. Stymiest, 581 F.3d 759, 765-66 (8th Cir. 2009) (observing Indian Health Service (IHS) doctors must provide emergency care to any patient but non-tribal member defendant’s use of IHS clinic’s non-emergent care showed he was an Indian); United States U. Keys, 103 F.3d 758, 761 (9th Cir. 1996) (holding non-tribal member child victim’s receipt of medical services at Indian hospital was a factor in establishing she was Indian) with State U. Nobles, 373 N.C. 471, 481-82, 838 S.E.2d 373, 380 (N.C. 2020), cert. denied, 141 S. Ct. 365 (2020) (holding evidence of five childhood visits to Indian hospital insufficient to establish non-tribal member defendant’s recognition as Indian as an adult). Contrary to the district court’s finding, the kind of free, non-emergent care provided to Wadkins as an adult was based on his status as a recognized Indian by the tribe and such care, based on the evidence, is exclusive to Indians.

C. Benefits of Tribal Affiliation

Enjoyment of benefits of tribal affiliation may also be used to show recognition. Here, as discussed above, Wadkins had a CDIB card which gave him the benefit of free non-emergent medical care at Choctaw medical facilities. The CDIB card also served as his primary identification because he never had a driver’s license or state identification. Wadkins testified that he received school supplies, books, clothes, and food from the tribe as a teenager. He also received the assistance of a tribal case manager or social worker in applying for official tribal membership. Admittedly there are many benefits of tribal affiliation that Wadkins did not enjoy (tribal employment, hunting and fishing rights, voting in tribal elections, etc.), but the record shows he has been unable to do so because of his lengthy incarceration over the past twenty years. The tribal benefits he might have accrued are unavailable while incarcerated.

D. Social Recognition

Social recognition is also a consideration. Here, Wadkins testified about social recognition as an Indian because of his participation in Indian social life. He had a red-tail hawk feather in his possession at the time of his arrest. He said it signified guidance and protection for him. Wadkins’s mother (now deceased) and brother are enrolled members of the Choctaw Nation along with various aunts, uncles, and cousins. He attended multiple powwows outside of prison and at least one sweat lodge ceremony while in prison. He created Native American art and learned various Choctaw language phrases and alphabet letters from his mother. Furthermore, he held himself out as Indian.

The Tenth Circuit has determined that the St. Cloud factors are not exclusive. Nowlin, 555 Fed.Appx. at 823. In addition to the foregoing evidence, Wadkins also presented evidence that he is identified as Native American by the State of Oklahoma and the Department of Corrections (DOC) as exhibited on both his custody assessment form at intake from his first arrest and his current DOC badge. He also testified he was given a green tag in prison that identified him as Native American even while he was a member of the Universal Aryan Brotherhood (UAB). Although a nine-year member of the UAB, Wadkins testified that during his affiliation, the UAB and Indian Brotherhood were aligned. He explained that he did not join the Indian Brotherhood because he did not meet the group’s length of incarceration requirement for membership. He maintained his membership in the UAB did not alter his identification as Indian because he is bi-racial (both white and Indian). He left the UAB approximately eight years before the instant offenses and covered his UAB affiliated tattoos.

The State’s evidence did not refute Wadkins’s evidence of recognition in any meaningful way. The State called one witness, namely Michael Williams, a special agent with the Department of Corrections with expert knowledge of the current prison gangs. Williams testified that the UAB is a white supremacist gang. While there are presently five to ten Native American gangs, he admitted the only Indian gang in existence when Wadkins first went to prison was the Indian Brotherhood. He was unaware of any present affiliation between the UAB and Indian Brotherhood gangs but admitted gangs sometimes align. He confirmed that DOC records reflected that Wadkins is a former member of the UAB and that Wadkins’s UAB tattoos have been defaced. His testimony neither refuted Wadkins’s evidence of tribal recognition nor showed Wadkins’s membership in the UAB was a renouncement of his Indian status.

The district court’s conclusion-that Wadkins failed to establish recognition-is not supported by the record. While eligibility for tribal membership alone is insufficient to prove recognition, Wadkins’s subsequent enrollment coupled with the other factors, specifically his possession of a CDIB card since childhood and receipt of Indian health services, showed he was recognized as Indian by the Choctaw Nation. Because he is an Indian for purposes of federal criminal law and the charged crimes occurred in Indian Country, the State lacked jurisdiction over this matter.

DECISION

The Judgment and Sentence of the district court is VACATED and the 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 CHOCTAW COUNTY

THE HONORABLE GARY L. BROCK
SPECIAL JUDGE

Footnotes:

  1. Under 21 O.S.Supp.2015, § 13.1, Wadkins must serve 85% of his sentence of imprisonment on Count 1 before he is eligible for parole consideration.
  2. McGirt U. Oklahoma, 140 S.Ct. 2452 (2020).
  3. United States U. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012); United States U. Prentiss, 273 F.3d 1277, 1280 (10th Cir. 2001); Goforth v. State, 1982 OK CR 48, 6, 644 P.2d 114, 116.
  4. State v. Klindt, 1989 OK CR 75, 5, 782 P.2d 401, 403.
  5. Sizemore U. State, 2021 OK CR 6, 14-16, 485 P.3d 867, 870-71.
  6. United States v. Rogers, 45 U.S. 567 (1846).
  7. St. Cloud v. United States, 702 F.Supp. 1456, 1461 (D.S.D. 1988).
  8. Parker v. State, 2021 OK CR 17, 39.
  9. United States U. Bruce, 394 F.3d 1215, 1224-25 (9th Cir. 2005).
  10. United States U. Drewry, 365 F.3d 957, 961 (10th Cir. 2004), vacated on other grounds by Drewry v. United States, 543 U.S. 1003 (2005).
  11. The Tenth Circuit uses a totality of the evidence approach in its determination of Indian status. Diaz, 679 F.3d at 1187.
  12. United States U. Zepeda, 792 F.3d 1103, 1114 (9th Cir. 2015).
  13. United States v. Stymiest, 581 F.3d 759, 764 (8th Cir. 2009).
  14. Tryon U. State, 2018 OK CR 20, 74, 423 P.3d 617, 639.
  15. Wadkins's admitted medical records showed that the places he sought treatment were reserved only to Native Americans.
  16. State U. Nobles, 373 N.C. 471, 481-82, 838 S.E.2d 373, 380 (N.C. 2020), cert. denied, 141 S. Ct. 365 (2020).

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 1115 (2011) - First Degree Rape
  • Okla. Stat. tit. 21 § 741 (2012) - Kidnapping
  • Okla. Stat. tit. 21 § 13.1 (Supp. 2015) - Parole Eligibility
  • Okla. Stat. tit. 22 § 3.15 (2021) - Court of Criminal Appeals Rules

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

  • 18 U.S.C. § 1153 - Indian Major Crimes Act

Other citations:

No other rule citations found.

Case citations:

  • McGirt v. Oklahoma, 140 S.Ct. 2452 (2020)
  • United States v. Diaz, 679 F.3d 1183 (10th Cir. 2012)
  • United States v. Prentiss, 273 F.3d 1277 (10th Cir. 2001)
  • Goforth v. State, 1982 OK CR 48, 644 P.2d 114 (Oklahoma Court of Criminal Appeals)
  • State v. Klindt, 1989 OK CR 75, 782 P.2d 401 (Oklahoma Court of Criminal Appeals)
  • Sizemore v. State, 2021 OK CR 6, 485 P.3d 867 (Oklahoma Court of Criminal Appeals)
  • Parker v. State, 2021 OK CR 17 (Oklahoma Court of Criminal Appeals)
  • United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005)
  • United States v. Drewry, 365 F.3d 957 (10th Cir. 2004)
  • United States v. Nowlin, 555 Fed.Appx 820 (10th Cir. 2014)
  • United States v. Stymiest, 581 F.3d 759 (8th Cir. 2009)
  • United States v. Keys, 103 F.3d 758 (9th Cir. 1996)
  • State v. Nobles, 373 N.C. 471, 838 S.E.2d 373 (N.C. 2020)
  • Roth v. State, 2021 OK CR 27
  • State v. Lawhorn, 2021 OK CR 37

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