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ORIGINAL *1048388879 FILED IN THE COURT OF CRIMINAL APPEALS INCOURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA STATE OF OKLAHOMA MAR 18 2021 GRANT N. JACKSON, IV, ) JOHN D. HADDEN CLERK Appellant, ) NOT FOR PUBLICATION ) V. ) Case No. F-2016-453 ) THE STATE OF OKLAHOMA, ) ) Appellee. ) OPINION ROWLAND, VICE PRESIDING JUDGE: Appellant Grant N. Jackson, IV was tried by jury in the District Court of Tulsa County, Case No. CF-2014-5892, and found guilty of Child Abuse by Injury, in violation of 21 O.S.2011, § 843.5(A). The jury assessed punishment at four years imprisonment and the Honorable William D. LaFortune, District Judge, who presided at trial, sentenced Jackson accordingly. Jackson appeals raising the following issues: (1) whether the evidence was sufficient to sustain the verdict; (2) whether the cumulative effect of prosecutorial misconduct denied him a fair trial; (3) whether he was denied his right to the effective assistance of trial counsel; and (4) whether the cumulative effect of the errors deprived him of a fair trial. Jackson also submits his supplemental pro se brief raising the following issues: (1) whether the State of Oklahoma had jurisdiction over this alleged crime; (2) whether the prosecutor violated the Napue/Mooney Rule when she knowingly used perjured testimony; and (3) whether the district court abused its discretion when it failed to nullify the verdict of the jury. 1 We find relief is required on Jackson’s jurisdictional challenge in Proposition 1 of his Supplemental Brief, rendering his other claims moot. Jackson claims the State of Oklahoma did not have 1 We allowed the submission of Jackson’s supplemental pro se brief, including his jurisdictional challenge, by separate order dated April 6, 2017. Also in that Order, we allowed the State to file a supplemental answer brief. On September 7, 2017, Jackson’s appellate counsel sought to file a supplemental brief to present new authority supporting Jackson’s pro se jurisdictional claim, namely Murphy v. Royal. The State of Oklahoma objected to Jackson’s application to file supplemental brief on September 13, 2017. On September 26, 2017, we held Jackson’s direct appeal in abeyance pending the resolution of the Murphy case without ruling on his application to file supplemental brief. Following the Supreme Court’s decision in McGirt v. Oklahoma, 140 S.Ct. 2452 (2020), the State withdrew its objection to Jackson’s application to file supplemental brief and appellate counsel’s supplemental brief was accepted. 2 jurisdiction to prosecute him. He relies on 18 U.S.C. § 1153 and McGirt U. Oklahoma, 591 U.S. , 140 S.Ct. 2452 (2020). On August 19, 2020, this Court remanded this case to the District Court of Tulsa County for an evidentiary hearing. The District Court was directed to make findings of fact and conclusions of law on two issues: (a) Jackson’s status as an Indian; and (b) whether the crime occurred within the boundaries of the Muscogee Creek 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. On September 25, 2020, the parties appeared before the Honorable Tracy L. Priddy for a status conference and entered a written Agreed Stipulation in which they agreed: (1) that Jackson has some Indian blood; (2) that he was a registered citizen of the Muscogee Creek Nation on the date of the charged offense; (3) that the Muscogee Creek Nation is a federally recognized tribe; and (4) 3 that the charged crime occurred within the Muscogee Creek Nation Reservation. The district court accepted the parties’ stipulation. On November 12, 2020, the District Court filed its Findings of Fact and Conclusions of Law. The District Court found the facts recited above in accordance with the stipulation. The District Court concluded that Jackson is an Indian under federal law and that the charged crimes occurred within the boundaries of the Muscogee Creek Nation Reservation. The District Court’s findings are supported by the record. The ruling in McGirt governs this case and requires us to find the State of Oklahoma was without jurisdiction to prosecute Jackson. Accordingly, we grant Jackson’s Supplemental Brief Proposition 1. 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. 4 AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE WILLIAM D. LAFORTUNE, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL KYLE KILLAM NICOLLETTE BRANDT 2017 S. ELM PLACE, SUITE 108 APPELLATE DEFENSE BROKEN ARROW, OK 74012 COUNSEL P.O. BOX 926 JENNY PROEHL-DAY NORMAN, OK 73070 1408 SOUTH DENVER ATTORNEY FOR APPELLANT TULSA, OK 74119 ATTORNEYS FOR DEFENDANT GRANT N. JACKSON, IV, PRO SE, SUBMITTED THROUGH COUNSEL NICOLLETTE BRANDT BENJAMIN FU MIKE HUNTER ANDREA BROWN ATTORNEY GENERAL ASST. DISTRICT ATTORNEYS OF OKLAHOMA 500 SOUTH DENVER JAY SCHNIEDERJAN TULSA, OK 74103 ASST. ATTORNEY GENERAL ATTORNEYS FOR STATE 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 ATTORNEYS FOR APPELLEE APPEARANCES ON REMAND NICOLLETTE BRANDT DANNY JOSEPH GENERAL APPEALS DIVISION Oids P.O. BOX 926 NORMAN, OK 73070 COUNSEL FOR DEFENDANT/ APPELLANT 5 MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA JENNIFER CRABB ASST. ATTORNEY GENERAL 313 N.E. 21 ST STREET OKLAHOMA CITY, OK 73105 ATTORNEYS FOR STATE/APPELLEE ERIK GRAYLESS FIRST ASSISTANT DISTRICT ATTORNEY OF TULSA COUNTY 500 S. DENVER AVE. SUITE 900 TULSA, OK 74103 COUNSEL FOR STATE OPINION BY: ROWLAND, V.P.J. KUEHN, P.J.: Concur LUMPKIN, J.: Concur in Results LEWIS, J.: Concur HUDSON, J.: Specially Concur 6 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 U. 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’ 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. 1 The result seems to be some form of “social 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 section 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 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 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). 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. HUDSON, J., SPECIALLY CONCURS: Today’s decision dismisses a conviction for child abuse by injury from the District Court of Tulsa County based on the Supreme Court’s decision in McGirl 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 this crime on the Creek Reservation. Under McGirt, the State has no jurisdiction to prosecute Appellant for the child abuse 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 far- reaching impact on the criminal justice system in Oklahoma and the need for a practical solution by Congress. See Bosse U. State, 2021 OK CR 3, _P.3d_ (Hudson, J., Concur in Results); Hogner U. State, 2021 OK CR 4, _P.3d_ (Hudson, J., Specially Concurs); and Krafft v. State, No. F-2018-340 (Okl.Cr., Feb. 25, 2021) (Hudson, J., , Specially Concurs) (unpublished).

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