Dakota Shay Fox v The State Of Oklahoma

F-2019-196

Filed: Apr. 29, 2021

Not for publication

Prevailing Party: Dakota Shay Fox

Summary

Dakota Shay Fox appealed his conviction for Murder in the First Degree. Conviction and sentence were reversed, and the case was remanded with instructions to dismiss. Judge Hudson wrote the opinion, and Judge Kuehn, Judge Rowland, Judge Lumpkin, and Judge Lewis concurred in the result.

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 the prosecution of Appellant based on his Indian status and the location of the crime?
• Did the District Court properly determine that Appellant was recognized as an Indian and that the crime occurred within Indian Country?
• Was there sufficient prima facie evidence presented to establish the existence of the Choctaw Nation Reservation and its boundaries?
• Did the State of Oklahoma take a position on the jurisdictional questions regarding the Choctaw Nation Reservation?
• Was the District Court's conclusion that Congress never disestablished the Choctaw Reservation supported by the evidence presented at the evidentiary hearing?

Findings

• The court found that the District Court did not err in determining Appellant's status as an Indian.
• The court found that the crime occurred within the boundaries of the Choctaw Nation Reservation.
• The State of Oklahoma did not have jurisdiction to prosecute Appellant.
• The judgment and sentence were reversed and the case was remanded with instructions to dismiss.

F-2019-196

Apr. 29, 2021

Dakota Shay Fox

Appellant

v

The State Of Oklahoma

Appellee

OPINION REMANDING WITH INSTRUCTIONS TO DISMISS

HUDSON, JUDGE: Appellant, Dakota Shay Fox, was tried and convicted by a jury in the District Court of McCurtain County, Case No. CF-2018-07, of Murder in the First Degree, Malice Aforethought, in violation of 21 O.S.Supp.2012, § 701.7. The jury recommended a sentence of life imprisonment without the possibility of parole. The Honorable Gary Brock, Special Judge, presided at trial and sentenced Appellant in accordance with the jury’s verdict. 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. He relies on 18 U.S.C. § 1153 and McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), and argues he is a member of the Choctaw Nation and the crime occurred within the boundaries of the Choctaw Nation Reservation. On August 21, 2020, this Court remanded this case to the District Court of McCurtain 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.1 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 Choctaw 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 Judge Brock on October 5, 2020. Prior to the hearing, Appellant filed Defendant/Appellant’s Remanded Hearing Brief Applying McGirt Analysis to Choctaw Nation Reservation, and the Choctaw Nation filed an Amicus Curiae Brief in Support of the Continued Existence of the Choctaw Reservation and Its Boundaries. The State did not submit a brief. At the hearing, the parties presented the court with agreed-upon stipulations, which partially answered the questions presented to the court.

As to Appellant’s status as an Indian, the parties stipulated: Defendant/Appellant, Dakota Shay Fox, has 1/4 Choctaw blood and was a member of the Choctaw Nation of Oklahoma (Membership Number CN226351) at the time of the crime. The Choctaw Nation of Oklahoma is an Indian Tribal Entity recognized by the federal government. (10/5/2020 Exhibit 1). No additional evidence was presented with regard to this issue. As to the location of the crime, the parties stipulated: The crime in this case occurred near the intersection of SE Adams and SE G streets in Idabel, McCurtain County, Oklahoma. This location is within the historical boundaries of the Choctaw Nation—boundaries as set forth in, and adjusted by, the 1855 and 1866 treaties between the Chickasaw and Choctaw Nations and the United States. (10/5/2020 Exhibit 1).

Appellant also introduced a packet of exhibits titled Defendant’s Evidentiary Hearing Exhibits, containing some treaties, some federal acts, the Choctaw Constitution and a map of the Choctaw Reservation. The State presented no additional evidence relating to this issue. Appellant, for the most part, stood on the briefs that had been submitted throughout the appeal process in this case, including the appellate briefs filed with this Court. While the State did not stipulate to Appellant’s status as an Indian, Appellant asserted the facts agreed to by stipulation definitively resolved the issue.

In addition to the agreed-upon facts relating to whether the crime occurred in Indian country, Appellant argued that the Choctaw Nation Reservation was created by treaty and is still intact to this day[.] Appellant observed that McGirt simplified the issue by focusing almost exclusively on the language that Congress has spoken with, either in treaties or subsequent federal legislation. Appellant argued there is no evidence that any acts of Congress clearly disestablished the Choctaw Reservation. The State inexplicably took no position on [the two] legal questions before the District Court but merely stipulated to the underlying facts. The State thus neither advocated it had jurisdictional authority to prosecute Appellant nor conceded its lack thereof. As discussed below, the State continues this tactic on appeal.

In its written findings of fact and conclusion of law filed after the hearing, the District Court accepted and found the facts as stipulated2 by the parties. The court concluded: (1) Appellant was an Indian at the time of the crime; and (2) the crime occurred within the boundaries of the Choctaw Nation Reservation. As to boundaries of the reservation, the court specifically found there was no evidence presented that Congress has ever explicitly erased [the historical] boundaries of the Choctaw Nation and disestablished that reservation. Both Appellant and the State filed with the Court supplemental briefs after remand. Appellant argues in his brief that the record conclusively supports the district court’s finding that [Appellant] is an Indian. As to whether the crime occurred in Indian Country, Appellant notes that the parties agreed the crime occurred within the Choctaw Nation’s [historical] boundaries [as] set by the treaties of 1855 and 1866. Thus, Appellant contends the only questions remaining are whether these treaties created a reservation; and if so, whether the reservation continues to exist. Appellant argues the answer to both these questions is yes. Reviewing the evidence provided at the evidentiary hearing under the standard of review set forth in McGirt, Appellant argues this Court should affirm the District Court’s findings. Appellant asserts that like the Creek Reservation, [n]o explicit language of total withdrawal of the reservation exists in Choctaw treaties or allotment acts (citing McGirt, 140 S. Ct. at 2463). Because the State did not and cannot point to any such language regarding the Choctaw Reservation, Appellant argues this Court should find that Congress did not disestablish Choctaw Reservation.

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 that Appellant was an Indian and the crimes occurred in Indian Country. The State reiterates, however, that it takes no position as to the existence, or absence, of a Choctaw 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 the United States Attorney’s Office for the Eastern District of Oklahoma time to secure custody of Appellant. 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 evidence7 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 Choctaw 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. See State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3D 1192, 1194 (defining an abuse of discretion). 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 1/4 degree Indian blood and being a member of the Choctaw Nation of Oklahoma tribe on the date of the crime. We also find the District Court appropriately applied McGirt to determine that Congress established a Choctaw Nation Reservation and that no evidence was presented showing that Congress explicitly erased or disestablished the boundaries of the Choctaw Nation or that the State of Oklahoma had jurisdiction in this matter.3 Based on the foregoing, 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 McCurtain County with instructions to dismiss the case.4

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.5

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Footnotes:

1. Okla. Stat. tit. 21 § 701.7
2. 18 U.S.C. § 1153
3. McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)
4. Goforth v. State, 1982 OK CR 48, ¶ 6, 644 P.2d 114, 116.
5. United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012)
6. United States v. Prentiss, 273 F.3d 1277, 1280-81 (10th Cir. 2001)
7. State v. Delso, 2013 OK CR 5, ¶ 5, 298 P.3D 1192, 1194
8. McGirt v. Oklahoma, 140 S. Ct. at 2463
9. 22 O.S.2011, § 846
10. Bosse v. State, 2021 OK CR 3, ¶ 19.
11. Hogner v. State, 2021 OK CR 4, ¶ 2
12. Felix S. Cohen, Handbook of Federal Indian Law (1942)

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7 - Murder in the First Degree, Malice Aforethought
• Okla. Stat. tit. 22 § 846 - Appeals: Authority of Court of Criminal Appeals to stay mandate

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 18 U.S.C. § 1153 - Major Crimes Act

Other citations:

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Goforth v. State, 1982 OK CR 48, I 6, 644 P.2d 114, 116
• State v. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194
• Sizemore v. State, 2021 OK CR 6, III 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)
• McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)