Travis Dray Stewart v State Of Oklahoma

C-2017-1223

Filed: Apr. 8, 2021

Not for publication

Prevailing Party: Travis Dray Stewart

Summary

Travis Dray Stewart appealed his conviction for Child Sexual Abuse. Conviction and sentence were reversed. Judge Lumpkin dissented.

Decision

The Petition for Writ of Certiorari is GRANTED. The Judgment and Sentence of the District Court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The MANDATE is not to be issued until twenty (20) days from the delivery and filing of this decision.

Issues

• Was there a jurisdictional issue regarding Petitioner's guilty plea based on his status as an Indian and the location of the crime within the Creek Reservation?
• Did the District Court properly conduct an evidentiary hearing to determine Petitioner's Indian status and the location of the crime?
• Was the evidence presented sufficient to establish that the crimes occurred in Indian Country under federal law?
• Did the State of Oklahoma have jurisdiction to prosecute Petitioner following the McGirt decision?
• Was the Judgment and Sentence of the District Court valid given the lack of jurisdiction?

Findings

• The District Court did not have jurisdiction to accept Petitioner's plea.
• The crimes charged occurred in Indian Country.
• The Judgment and Sentence in this case is reversed and remanded to dismiss the case.

C-2017-1223

Apr. 8, 2021

Travis Dray Stewart

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

HUDSON, JUDGE: Petitioner, Travis Dray Stewart, was charged in Tulsa County District Court, Case No. CF-2010-4428, with Child Sexual Abuse, After Former Conviction of Two Felonies, in violation of 10 O.S.Supp.2002, § 7115(E). Petitioner entered a blind guilty plea to the charge on May 15, 2012, before the Honorable Dana Kuehn, Associate District Judge. The trial court accepted Petitioner’s plea and deferred sentencing pending the completion and filing of a presentence investigation report.

On June 29, 2012, Judge Kuehn sentenced Petitioner to thirty years imprisonment and a $500.00 fine. Petitioner must serve 85% of his sentences before becoming eligible for parole consideration. 21 O.S.Supp.2002, § 13.1. On July 9, 2012, Petitioner filed a motion to withdraw his blind plea. A hearing on Petitioner’s motion was held on November 21, 2017, before the Honorable James Caputo, District Judge. After hearing testimony from Petitioner and plea counsel, along with argument from counsel for both parties, Judge Caputo denied Petitioner’s motion to withdraw his plea. Petitioner now seeks a writ of certiorari.

In Proposition One, Petitioner claims the District Court lacked jurisdiction to accept his plea. Petitioner argues that he is a citizen of the Creek Nation and the crime occurred within the boundaries of the Creek Reservation. Pursuant to McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), Petitioner’s claim raises two separate questions: (a) his Indian status; and (b) whether the crimes occurred on the Creek Reservation. These issues require fact-finding. We therefore remanded this case to the District Court of Tulsa County for an evidentiary hearing. Recognizing the historical and specialized nature of this remand for evidentiary hearing, we requested the Attorney General and District Attorney work in coordination to effect uniformity and completeness in the hearing process.

Upon Petitioner’s presentation of prima facie evidence as to Petitioner’s 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 jurisdiction. The District Court was ordered to determine whether Petitioner has some Indian blood and is recognized as an Indian by a tribe or the federal government. The District Court was further ordered to determine whether the crimes in this case occurred in Indian Country. In so doing, the District Court was directed to consider any evidence the parties provided, including but not limited to treaties, statutes, maps, and/or testimony.

We also directed the District Court that in the event the parties agreed as to what the evidence would show with regard to the questions presented, the parties 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. The District Court was also ordered to file written findings of facts and conclusions of law with this Court. A status hearing was held in this case on September 25, 2020, before the Honorable Tracy L. Priddy, District Judge. Thereafter, a written findings of fact and conclusions of law was timely filed with this Court.

The record indicates that appearing before the District Court on this matter were attorneys from the Oklahoma Attorney General’s Office, the Tulsa County District Attorney’s Office, and counsel for Petitioner. In its written findings of fact and conclusion of law, the District Court stated that the parties have stipulated that Petitioner has a blood quantum of 1/16; that Petitioner is a citizen of the Creek Nation and was so at the time of the charged crime; that the Creek Nation is an Indian Tribal Entity recognized by the federal government; the verification for Petitioner’s tribal enrollment and blood quantum are attached to the written stipulation submitted by the parties; and the crimes charged in this case occurred within the boundaries of the Creek Reservation. The District Court attached as Exhibit 1 to its findings of facts and conclusions of law a document entitled Agreed Stipulation signed by all counsel reflecting these stipulations.

The District Court adopted the stipulations made by the parties and concluded in its findings of fact and conclusions of law that Petitioner has some Indian blood, that he is also recognized as an Indian by a tribe or the federal government and therefore Petitioner is an Indian. Finally, the District Court adopted the stipulation of the parties that the crimes in this case occurred on the Creek Reservation and, thus, found the crimes occurred in Indian Country for purposes of federal law.

On November 24, 2020, the State filed with this Court a supplemental brief after remand. In its brief, the State acknowledges the District Court accepted the parties’ stipulations as discussed above and references the District Court’s findings. The State contends in its brief that should this Court find Petitioner is entitled to relief based on the District Court’s findings, this Court should stay any order reversing the conviction for thirty (30) days so that the appropriate authorities can review his case, determine whether it is appropriate to file charges and take custody of Petitioner. Cf. 22 O.S.2011, § 846.

After thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts and the briefs of the parties, we find that under the law and evidence relief is warranted. Based upon the record before us, the District Court’s findings of fact and conclusions of law are supported by the stipulations jointly made by the parties on remand. We therefore find Petitioner has met his burden of establishing his status as an Indian, having a blood quantum of 1/16 Creek blood and being a member of the Creek Nation. We further find Petitioner met his burden of proving the crimes in this case occurred on the Creek Reservation and, thus, occurred in Indian Country.

Pursuant to McGirt, we find the State of Oklahoma did not have jurisdiction to prosecute Petitioner in this matter. The Judgment and Sentence in this case is hereby reversed and the case remanded to the District Court of Tulsa County with instructions to dismiss the case.

DECISION

The Petition for Writ of Certiorari is GRANTED. The Judgment and Sentence of the District Court is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. The MANDATE is not to be issued until twenty (20) days from the delivery and filing of this decision.

APPEARANCES AT TRIAL
DANNY JOSEPH LISBETH L. MCCARTY NICOLLETTE BRANDT
OKLA. INDIGENT DEF. OKLA. INDIGENT DEF.
SYSTEM SYSTEM
P.O. BOX 926
NORMAN, OK 73070
COUNSEL FOR DEFENDANT

APPEARANCES ON APPEAL
ERIC GRAYLESS MIKE HUNTER
FIRST ASST. DISTRICT ATTY. OKLA. ATTORNEY GENERAL
TULSA COUNTY RANDALL YOUNG
500 SOUTH DENVER AVE ASST. ATTORNEY GENERAL
SUITE 900 313 N.E. 21 ST STREET
TULSA, OK 74103 OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE COUNSEL FOR RESPONDENT

MIKE HUNTER OKLA. ATTORNEY GENERAL
JENNIFER CRABB ASST. ATTORNEY GENERAL
313 N.E. 21 ST STREET OKLAHOMA CITY, OK 73105
COUNSEL FOR THE STATE

OPINION BY: HUDSON, J. KUEHN, P.J.: RECUSED ROWLAND, V.P.J.: CONCUR LUMPKIN, J.: CONCUR IN RESULTS LEWIS, J.: CONCUR IN RESULTS

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, and to accept the fact that no Indian reservations remain in the State of Oklahoma.

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 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.

LEWIS, JUDGE, CONCURRING IN RESULTS: Based on my special writings in Bosse v. State, 2021 OK CR 3, P.3d and Hogner v. State, 2021 OK CR 4, P.3d, I concur in results in the decision to dismiss this case for the lack of state jurisdiction.

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Footnotes:

1. Both the Information and Judgment and Sentence cite Section 843.5 of Title 21 as the statute violated by Petitioner.
2. The version of the child sexual abuse statute in effect at the time of Petitioner's crimes was Section 7115 of Title 10.
3. The delay in Petitioner's withdrawal hearing is the subject of Petitioner's Proposition Two.
4. The District Court was ordered to file written findings of facts and conclusions of law with this Court.
5. The State acknowledges the District Court accepted the parties' stipulations as discussed above and references the District Court's findings.
6. The District Court's findings of fact and conclusions of law are supported by the stipulations jointly made by the parties on remand.
7. Pursuant to McGirt, we find the State of Oklahoma did not have jurisdiction to prosecute Petitioner in this matter.
8. This disposition renders moot the other seven propositions raised in Petitioner's brief in chief.
9. By withholding issuance of the mandate for twenty days, the State's request for time to determine further prosecution is rendered moot.
10. 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.

Oklahoma Statutes citations:

• Okla. Stat. tit. 10 § 7115 (2002) - Child Sexual Abuse
• Okla. Stat. tit. 21 § 843.5 (2009) - Crimes
• Okla. Stat. tit. 21 § 13.1 (2011) - Sentencing
• Okla. Stat. tit. 22 § 846 (2011) - Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)
• Bosse v. State, 2021 OK CR 3, _P.3d
• Hogner v. State, 2021 OK CR 4, P.3d
• Krafft v. State, No. F-2018-340 (Okl.Cr., Feb. 25, 2021)