Shannon James Kepler v The State Of Oklahoma

F-2017-1186

Filed: Mar. 18, 2021

Not for publication

Prevailing Party: Shannon James Kepler

Summary

Shannon James Kepler appealed his conviction for First Degree Manslaughter. Conviction and sentence were vacated. Judge Lumpkin dissented.

Decision

The Judgment and Sentence of the district court is VACATED and the matter is REMANDED WITH INSTRUCTIONS TO DISMISS. The Clerk of this Court shall SEAL the un-redacted Enrollment Verification appended to the original Findings of Fact and Conclusions of Law filed November 16, 2020. 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 challenge to the State's ability to prosecute Kepler?
• Did Kepler meet the legal criteria to be classified as an Indian under federal law?
• Did the crime occur within the boundaries of the Muscogee Creek Nation Reservation?
• Was the ruling in McGirt v. Oklahoma applicable to this case?
• Was the district court's acceptance of the stipulation regarding Kepler's status and the crime's location valid?
• Did the Court find that the State of Oklahoma was without jurisdiction to prosecute Kepler?
• Was the conviction for first degree manslaughter properly dismissed based on the jurisdictional ruling?

Findings

• the State of Oklahoma was without jurisdiction to prosecute Kepler
• the Judgment and Sentence of the district court is VACATED
• the matter is REMANDED WITH INSTRUCTIONS TO DISMISS
• the un-redacted Enrollment Verification is ordered to be SEALED

F-2017-1186

Mar. 18, 2021

Shannon James Kepler

Appellant

v

The State Of Oklahoma

Appellee

OPINION

ROWLAND, VICE-PRESIDING JUDGE: Appellant Shannon James Kepler was tried by jury in the District Court of Tulsa County, Case No. CF-2014-3952, and found guilty of First Degree Manslaughter, in violation of 21 O.S.2011, § 711. The jury assessed punishment at fifteen years imprisonment and a fine of $10,000.00. The Honorable Sharon K. Holmes, District Judge, presided at Kepler’s jury trial and sentenced him in accordance with the jury’s verdict.

Kepler raises seven issues for review. Kepler’s jurisdiction challenge, contesting the State’s jurisdiction to prosecute him, requires relief. We address only that claim and find Kepler’s other claims are moot. Kepler 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).

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) Kepler’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 and entered a written joint stipulation in which they agreed: (1) that Kepler has some Indian blood; (2) that he was a registered member 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) that the charged crime occurred within the Muscogee Creek Nation Reservation. The district court accepted the parties’ stipulation.

The District Court filed its Amended Findings of Fact and Conclusions of Law in this Court on November 16, 2020. The District Court found the facts recited above in accordance with the stipulation. The District Court concluded that Kepler 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 and conclusions 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 Kepler. Accordingly, we grant Kepler’s Proposition 1.

DECISION

The Judgment and Sentence of the district court is VACATED and the matter is REMANDED WITH INSTRUCTIONS TO DISMISS. The Clerk of this Court shall SEAL the un-redacted Enrollment Verification appended to the original Findings of Fact and Conclusions of Law filed November 16, 2020. 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.

OPINION BY: ROWLAND, V.P.J.
KUEHN, P.J.: Recuse
LUMPKIN, J.: Concur in Results
LEWIS, J.: Concur
HUDSON, J.: Specially Concur

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.

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 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.

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. 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 first degree manslaughter from the District Court of Tulsa County based on the Supreme Court’s decision in McGirt U. 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 homicide 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.

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Footnotes:

1. 21 O.S.2011, § 711.
2. 18 U.S.C. § 1153.
3. McGirt v. Oklahoma, 591 U.S. , 140 S.Ct. 2452 (2020).
4. Rule 2.7, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021).
5. Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2021).
6. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
7. Bosse v. State, 2021 OK CR 3, __P.3d_ (Hudson, J., Concur in Results).
8. Hogner v. State, 2021 OK CR 4, __P.3d_ (Hudson, J., Specially Concurs).
9. Krafft v. State, No. F-2018-340 (Okl.Cr., Feb. 25, 2021) (Hudson, J., Specially Concurs) (unpublished).
10. Id. at 157.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 711 - First Degree Manslaughter
• Okla. Stat. tit. 22 § 2.7 - Rules of the Oklahoma Court of Criminal Appeals
• Okla. Stat. tit. 22 § 3.15 - Rules of the Oklahoma Court of Criminal Appeals

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 18 U.S.C. § 1153 - Offenses committed within Indian country

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• McGirt v. Oklahoma, 591 U.S. , 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)