Sonny Raye McCombs v State Of Oklahoma
F-2017-1000
Filed: Apr. 29, 2021
Not for publication
Prevailing Party: Sonny Raye McCombs
Summary
Sonny Raye McCombs appealed his conviction for multiple crimes, including second-degree robbery and other offenses. He was sentenced to a total of 35 years in prison. The court found that McCombs is a member of the Muscogee (Creek) Nation and that the crimes happened in Indian Country, so the State of Oklahoma didn't have the right to prosecute him. The court decided to reverse his conviction and send the case back to be dismissed. Judge Hudson agreed with the outcome but had some concerns about how these decisions are made. Judge Lumpkin also agreed but expressed his worries about sticking to previous rulings.
Decision
The Judgments and Sentences of the District Court of Tulsa County are REVERSED 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. (2021), the MANDATE is STAYED for twenty (20) days from the delivery and filing of this decision.
Issues
- was there an abuse of discretion by the District Court in failing to grant McCombs' motion to dismiss for lack of subject matter jurisdiction?
- did McCombs establish his Indian status as a member of the Muscogee (Creek) Nation?
- did the crimes occur within Indian Country as defined by federal law?
- did the State of Oklahoma have jurisdiction to prosecute McCombs for the alleged crimes?
Findings
- the court erred in failing to grant the motion to dismiss for lack of subject matter jurisdiction
- the evidence was sufficient to establish Indian status
- the evidence was sufficient to establish the crimes occurred in Indian Country
- the State of Oklahoma did not have jurisdiction to prosecute McCombs
- the Judgments and Sentences of the District Court of Tulsa County are reversed
- the case is remanded with instructions to dismiss
F-2017-1000
Apr. 29, 2021
Sonny Raye McCombs
Appellantv
State Of Oklahoma
Appellee
v
State Of Oklahoma
Appellee
SUMMARY OPINION
Sonny Raye McCombs, Appellant, was tried by jury and convicted of, count one, second degree robbery in violation of 21 O.S.2011, § 799; count two, use of a vehicle in the discharge of a weapon in violation of 21 O.S.2011, § 652(B); count three, possession of a firearm after former conviction of a felony in violation of 21 O.S.Supp.2014, § 1283; count five, larceny of merchandise from a retailer in violation of 21 O.S.Supp.2016, § 1731, and count six, obstructing an officer in violation of 21 O.S.Supp.2015, § 540, in the District Court of Tulsa County, Case No. CF-2016-6878. In accordance with the jury’s recommendation the Honorable Doug Drummond, District Judge, sentenced McCombs to ten (10) years on count one, twenty-five (25) years on count two, five (5) years on count three, thirty (30) days on count five, and one (1) year on count six. Counts one, two, and three were ordered to be served consecutively and counts five and six were ordered to be served concurrently with each other and concurrently with count one.
McCombs filed an appeal from the Judgments and Sentences raising twelve propositions of error. We find that the claim raised in his eleventh proposition entitles McCombs to relief, thus the remaining propositions are moot. In his eleventh proposition, McCombs claims the District Court abused its discretion by failing to grant his motion to dismiss for lack of subject matter jurisdiction. McCombs argues that he is a citizen of the Muscogee (Creek) Nation and the crimes occurred within the boundaries of the reservations of the Cherokee Nation and the Muscogee (Creek) Nation.¹ McCombs, in his direct appeal, relies on Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), which was affirmed by the United States Supreme Court in Sharp v. Murphy, 591 U.S. ___, 140 S.Ct. 2412 (2020) for the reasons stated in McGirt v. Oklahoma, 591 U.S. ___, 140 S.Ct. 2452 (2020). McCombs’ claim raises two separate questions: (a) his Indian status and (b) whether the crimes occurred in Indian Country. This Court remanded the case back to the District Court because we determined that his claim required fact-finding on the two separate questions.
An evidentiary hearing was timely held before the Honorable Tracy Priddy, District Judge, and Findings of Fact and Conclusions of Law were timely filed with this Court. In its findings of fact, the District Court found that McCombs has 9/64 degree of Muscogee (Creek) blood and has been a registered member of the Muscogee (Creek) Nation since October 11, 2005. The Muscogee (Creek) Nation is an Indian Tribal Entity recognized by the federal government. The District Court also found that counts one and five occurred within the historical boundaries of the Muscogee (Creek) Nation Reservation, and counts two, three, and six occurred within the historical boundaries of the Cherokee Nation Reservation. The evidence established that neither the Muscogee (Creek) Nation Reservation nor the Cherokee Nation Reservation have been expressly disestablished by Congress. Therefore, the District Court concluded, and we agree, that the crimes occurred in Indian Country. See McGirt, 140 S.Ct. at 2468; 18 U.S.C. §§ 1152 and 1153; Spears v. State, 2021 OK CR 7, __ P.3d__; and Hogner v. State, 2021 OK CR 4, __ P.3d__.
We therefore find that the State of Oklahoma did not have jurisdiction to prosecute McCombs in this matter.
DECISION
The Judgments and Sentences of the District Court of Tulsa County are REVERSED 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. (2021), the MANDATE is STAYED for twenty (20) days from the delivery and filing of this decision.
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1. Counts 1 and 5 occurred within the boundaries of the Muscogee (Creek) Nation Reservation and Counts 2, 3, and 6 occurred within the boundaries of the Cherokee Nation Reservation.
2.
Footnotes:
- 1 Counts 1 and 5 occurred within the boundaries of the Muscogee (Creek) Nation Reservation and Counts 2, 3, and 6 occurred within the boundaries of the Cherokee Nation Reservation.
- 2 See McGirt, 140 S.Ct. at 2468; 18 U.S.C. §§ 1152 and 1153; Spears v. State, 2021 OK CR 7, __ P.3d __; and Hogner v. State, 2021 OK CR 4, __ P.3d __.
- 3 The evidence established that neither the Muscogee (Creek) Nation Reservation nor the Cherokee Nation Reservation have been expressly disestablished by Congress.
- 4 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 sections 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.
- 5 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.
- 6 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."
- 7 I disagree, however, with the majority's definitive conclusion based on Spears v. State, 2021 OK CR 7, __ P.3d __ and Hogner v. State, 2021 OK CR 4, __ P.3d __, that Congress never disestablished the Cherokee Reservation.
- 8 See Bosse v. State, 2021 OK CR 3, __ P.3d __ (Hudson, J., Concur in Results); Hogner v. 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).
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 799 (2011) - Second Degree Robbery
- Okla. Stat. tit. 21 § 652(B) (2011) - Use of a Vehicle in the Discharge of a Weapon
- Okla. Stat. tit. 21 § 1283 (Supp. 2014) - Possession of a Firearm After Former Conviction of a Felony
- Okla. Stat. tit. 21 § 1731 (Supp. 2016) - Larceny of Merchandise from a Retailer
- Okla. Stat. tit. 21 § 540 (Supp. 2015) - Obstructing an Officer
Oklahoma Administrative Rules citations:
No Oklahoma administrative rules found.
U.S. Code citations:
- 18 U.S.C. § 1152 - Indian country; general laws
- 18 U.S.C. § 1153 - Offenses committed within Indian country
Other citations:
No other rule citations found.
Case citations:
- McGirt v. Oklahoma, 591 U.S. , 140 S. Ct. 2452 (2020)
- Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017)
- Spears v. State, 2021 OK CR 7, __ P.3d
- Hogner v. State, 2021 OK CR 4, __ P.3d
- Bosse v. State, 2021 OK CR 3, __ P.3d
- Krafft v. State, No. F-2018-340 (Okl.Cr., Feb. 25, 2021)