Terrance Lucas Cottingham v State Of Oklahoma

F-2017-1294

Filed: May 6, 2021

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Terrance Lucas Cottingham appealed his conviction for Robbery with a Dangerous Weapon. His conviction and sentence were 25 years in prison, where he had to serve 85% of that time before being eligible for parole. Judge Hudson wrote the opinion, stating that Cottingham argued the State did not have the power to prosecute him because he is a member of the Osage Nation and the robbery happened in Cherokee Nation territory, which is considered Indian Country. The court had to decide if Cottingham was legally recognized as an Indian and if the crime took place in Indian Country according to federal law. After a hearing, the district court found that Cottingham was indeed a member of the Osage Nation and the crime occurred in an area that is part of the Cherokee Nation. The Oklahoma Court of Criminal Appeals agreed with the lower court’s findings and decided that the State did not have the authority to prosecute Cottingham. Therefore, they reversed his conviction and instructed the district court to dismiss the case. Judge Kuehn agreed with the majority decision, while other judges also concurred but noted issues with the process. In the end, Cottingham’s conviction is voided, meaning he cannot be punished for this crime under the State of Oklahoma's jurisdiction.

Decision

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 whether the District Court had the authority to prosecute Appellant under federal law?
• Did Appellant establish his status as an Indian for purposes of federal law?
• Did the crime occur within Indian Country, specifically the boundaries of the Cherokee Nation reservation?
• Was there a failure by the State to present evidence or argument regarding the disestablishment of the Cherokee Nation reservation?
• Was the District Court's conclusion that the Cherokee Reservation was not disestablished legally sound?

Findings

• the State of Oklahoma did not have jurisdiction to prosecute Appellant
• the District Court's Order is supported by the evidence presented at the evidentiary hearing
• Appellant has met his burden of establishing his status as an Indian
• the robbery occurred within the historical and territorial boundaries of the Cherokee Nation's reservation
• no evidence was presented showing that Congress explicitly erased or disestablished the boundaries of the Cherokee Nation
• the case is reversed and remanded to the District Court of Washington County with instructions to dismiss the case

F-2017-1294

May 6, 2021

Terrance Lucas Cottingham

Appellant

v

State Of Oklahoma

Appellee

OPINION REMANDING WITH INSTRUCTIONS TO DISMISS

HUDSON, JUDGE:

Appellant, Terrance Lucas Cottingham, was tried by jury and convicted of Robbery with a Dangerous Weapon, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 801, in the District Court of Washington County, Case No. CF-2015-350. In accordance with the jury’s recommendation, the Honorable Curtis DeLapp, District Judge, sentenced Appellant to twenty-five years imprisonment with credit for time served. Appellant must serve 85% of this sentence before becoming parole eligible. Appellant now appeals from this conviction and sentence.

In Proposition I of his brief in chief on appeal, Appellant claims the District Court lacked jurisdiction to prosecute him. Appellant cites 18 U.S.C. § 1153 and McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) in support of this argument. Appellant argues he is a citizen of the Osage Nation and claims the robbery in this case occurred within the boundaries of the Cherokee Nation which he says is Indian Country for purposes of federal law.

On August 21, 2020, this Court remanded Appellant’s case to the District Court of Washington County for an evidentiary hearing. The District Court was directed to make findings of fact and conclusions of law on two issues—(a) Appellant’s status as an Indian; and (b) whether the crime occurred in Indian Country. We instructed that Appellant bore the initial burden of presenting prima facie evidence as to his legal status as an Indian and as to the location of the crime in Indian Country. Upon such a showing, the burden shifts to the State to prove it has jurisdiction.

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. Our Order further 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 upon which they agree.

As to Appellant’s status as an Indian, the District Court was specifically ordered to determine whether Appellant has some Indian blood and is recognized as an Indian by a tribe or the federal government. To determine whether the crime occurred in Indian Country, the District Court was directed to follow the analysis set out in McGirt to determine (1) whether Congress established a reservation for the Cherokee Nation, and (2) if so, whether Congress specifically erased those boundaries and disestablished the reservation. In doing so, the District Court was directed to consider any evidence the parties provided, including but not limited to treaties, statutes, maps, and/or testimony.

An evidentiary hearing in this case was timely held before the Honorable Russell C. Vaclaw, Associate District Judge, on October 19, 2020. Prior to the hearing, Appellant filed a brief with the District Court setting forth his position on the remanded issues. The Cherokee Nation Attorney General likewise filed an amicus brief addressing the creation and continued existence of the Cherokee Nation reservation. The State, by contrast, did not submit a written brief to the District Court. At the hearing, the parties presented the District Court with agreed-upon stipulations that partially answered the questions presented to the court. Counsel for the Cherokee Nation also appeared at the hearing as amicus and presented argument.

As to Appellant’s status as an Indian, the parties stipulated: 1. Appellant is thirty-five two-hundred-fifty-sixths (35/256) degree of Indian blood of the Osage Tribe. 2. Appellant is a member of the Osage Nation and was such on October 6, 2015, the time of the charged offense. 3. The Osage Nation is an Indian Tribal Entity recognized by the federal government. No additional evidence was presented relating to this issue.

As to the location of the crime, the parties stipulated: 4. The charged crime occurred within the geographic area set out in the Treaty with the Cherokee, December 29, 1835, 7 Stat. 478, as modified under the Treaty of July 19, 1866, 14 Stat. 799, and as modified under the 1891 agreement ratified by Act of March 3, 1893, 27 Stat. 612. The Cherokee Nation, at Appellant’s request introduced into evidence a packet of exhibits containing the treaties and federal legislation referenced in the stipulation along with a map of the Cherokee Nation showing the location of the robbery. The State presented no additional evidence relating to this issue.

Appellant primarily stood on the briefs that were submitted by defense counsel and the Cherokee Nation prior to the hearing in arguing the jurisdictional issue. Defense counsel argued that, based on the stipulated facts, Appellant was an Indian for purposes of federal law and that the robbery in this case occurred in Indian Country. Appellant adopted the arguments presented by the Cherokee Nation in its amicus that the Cherokee Nation reservation was created by treaty with the federal government and continued to exist over time because Congress had never disestablished it. At the hearing, counsel for the Cherokee Nation presented extended argument summarizing the Tribe’s position in support of the continued existence of the Cherokee Nation reservation and referenced pertinent treaties and federal legislation resulting in the present territorial boundaries for the Nation which includes all of Washington County.

The Tribe pointed out the total absence of legislation from Congress disestablishing the Cherokee Nation reservation and urged that the reservation still existed today. The State was represented at the hearing by the elected District Attorney along with counsel from the Oklahoma Attorney General’s Office. The State took no position at the hearing on the two legal questions before the District Court but merely stipulated to the underlying facts. The record shows the State neither advocated it had jurisdictional authority to prosecute Appellant nor conceded its lack thereof. Instead, the State acknowledged the facts agreed to by stipulation and asserted that it was leaving it to the Court to determine whether, as a matter of law, Appellant was an Indian and whether the crime occurred in Indian Country.

In its written findings of fact and conclusions of law filed after the hearing, the District Court accepted and found the facts as stipulated by the parties. The court concluded: (1) Appellant is a member of the Cherokee Nation [sic]; (2) the robbery in this case occurred within the historical and territorial boundaries of the Cherokee Nation’s reservation; (3) Appellant and the Cherokee Nation’s counsel argued that Congress had not disestablished the reservation for the Cherokee Nation; (4) the State did not present any evidence or argument as to whether Congress disestablished the Cherokee Reservation[;]; and (5) The Court, having heard no other evidence, must find that the Cherokee Reservation was not disestablished.

Both Appellant and the State have filed supplemental briefs with this Court post-remand. Appellant urges that the District Court’s findings should be adopted by this Court in total. Appellant tells us the record supports the District Court’s conclusions concerning both his Indian status and the occurrence of the robbery in this case on the Cherokee Nation reservation. Appellant further argues that the record shows Congress established a reservation for the Cherokee Nation, the State cannot and did not at the hearing point to any language in federal legislation or treaties disestablishing the Cherokee Reservation and therefore the robbery charged in this case was committed in Indian Country for purposes of federal law. Based on these findings, Appellant urges dismissal of the present case for lack of jurisdiction.

In its response brief, the State acknowledges the District Court accepted the parties’ stipulations as discussed above. The State also acknowledges the District Court’s findings establishing both that Appellant was an Indian and that the crimes occurred in Indian Country. The State reiterates, however, that it takes no position as to the existence, or absence, of a Cherokee Nation Reservation. Should this Court find Appellant is entitled to relief based on the District Court’s findings, the State asks this Court to stay any order reversing Appellant’s conviction for thirty days to allow federal authorities time to secure custody of Appellant.

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. The State in effect stipulated to Appellant’s legal status as an Indian. However, the State took no position and presented no argument or evidence that the Cherokee Nation reservation had been disestablished and thus the crime did not occur in Indian Country. The State’s tactic of passivity has created a legal void in this Court’s ability to adjudicate properly the facts underlying Appellant’s argument. This Court is left with only the trial court’s conclusions of law to review for an abuse of discretion. We find no such abuse. Based upon the record before us, the District Court’s Order is supported by the evidence presented at the evidentiary hearing.

We therefore find Appellant has met his burden of establishing his status as an Indian, having 35/256 degree of Indian blood and being a member of the Osage Nation tribe on the date of the robbery in this case. We also find the District Court appropriately applied McGirt to determine that Congress established a Cherokee Nation reservation and that no evidence was presented showing that Congress explicitly erased or disestablished the boundaries of the Cherokee Nation or that the State of Oklahoma had jurisdiction in this matter. Pursuant to McGirt, we find the State of Oklahoma did not have jurisdiction to prosecute Appellant in this matter.

The Judgment and Sentence in this case is hereby reversed and the case remanded to the District Court of Washington County with instructions to dismiss the case.

DECISION

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.

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Footnotes:

1. Goforth v. State, 1982 OK CR 48, ¶ 6, 644 P.2d 114, 116.
2. United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012).
3. United States v. Prentiss, 273 F.3d 1277, 1280-81 (10th Cir. 2001).
4. Treaty with the Cherokee, December 29, 1835, 7 Stat. 478.
5. Treaty of July 19, 1866, 14 Stat. 799.
6. Act of March 3, 1893, 27 Stat. 612.
7. 22 O.S.2011, § 846.
8. Bosse v. State, 2021 OK CR 3, ___ P.3d ___ (Hudson, J., Concur in Results).
9. Hogner v. State, 2021 OK CR 4, ___ P.3d ___ (Hudson, J., Specially Concurs).
10. Krafft v. State, No. F-2018-340 (Okl.Cr., Feb. 25, 2021) (Hudson, J., Specially Concurs) (unpublished).
11. Spears U. State, 2021 OK CR 7, ¶¶ 15-16.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 801 - Robbery with a Dangerous Weapon
• Okla. Stat. tit. 22 § 846 - Procedures for Transfer of Custody

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:

• McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)
• Goforth v. State, 1982 OK CR 48, IT 6, 644 P.2d 114, 116
• United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012)
• United States v. Prentiss, 273 F.3d 1277, 1280-81 (10th Cir. 2001)
• State v. Delso, 2013 OK CR 5, IT 5, 298 P.3d 1192, 1194
• Spears v. State, 2021 OK CR 7, IT 15-16
• 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) (unpublished)