Oklahoma Court of Criminal Appeals Decides Indian Status Case

Here are the materials in Wadkins v. State of Oklahoma (Okla. Cr. Crim. App.):

Motion to Vacate

Appellant Brief

State Brief

OCCA Opinion

An excerpt:

The State’s evidence did not refute Wadkins’s evidence of recognition in any meaningful way. The State called one witness, namely Michael Williams, a special agent with the Department of Corrections with expert knowledge of the current prison gangs. Williams testified that the UAB is a white supremacist gang. While there are presently five to ten Native American gangs, he admitted the only Indian gang in existence when Wadkins first went to prison was the Indian Brotherhood. He was unaware of any present affiliation between the UAB and Indian Brotherhood gangs, but admitted gangs sometimes align. He confirmed that DOC records reflected that Wadkins is a former member of the UAB and that Wadkins’s UAB tattoos have been defaced. His testimony neither refuted Wadkins’s evidence of tribal recognition nor showed Wadkins’s membership in the UAB was a renouncement of his Indian status.
The district court’s conclusion–that Wadkins failed to establish recognition–is not supported by the record. While eligibility for tribal membership alone is insufficient to prove recognition, Wadkins’s subsequent enrollment coupled with the other factors, specifically his possession of a CDIB card since childhood and receipt of Indian health services, showed he was recognized as Indian by the Choctaw Nation. Because he is an Indian for purposes of federal criminal law and the charged crimes occurred in Indian Country, the State lacked jurisdiction over this matter.

Motions to Dismiss State Prosecutions under McGirt

A flurry of motions has come in. Here is the motion to dismiss a criminal complaint on the Cherokee reservation in State of Oklahoma v. Nichols (Tulsa County Dist. Ct.):

Nichols Brief

Here is the motion to dismiss in a case involving a Creek reservation crime where the defendant marked “I” on the racial identity box, State of Oklahoma v. Williams (Tulsa County Dist. Ct.):

Williams Brief

And here is the motion to dismiss in State of Oklahoma v. Shaffer (Tulsa County Dist. Ct.), where the defendant was unenrolled at the time of the crime and is now seeking enrollment at Cherokee:

Shaffer Brief

Oklahoma Trial Court Confirms Chickasaw Reservation Remains Extant

Here are the materials in Bosse v. State of Oklahoma (McClain Dist. Ct.):

9-23-2020 Bosse Brief

9-23-2020 Chickasaw Nation Amicus Brief

9-29-2020 State Brief

10-13-2020 DCT Order

This case is on remand from the appellate court, materials here.

Oklahoma Criminal Appellate Court Asked to Address Impact of McGirt on Crime Committed on Chickasaw Reservation with Chickasaw Victims

Here are materials in Bosse v. State (Okla. Ct. Crim. App.):

Bosse Petition

Order Allowing McGirt Briefing

Bosse Brief

State Brief

Federal Court Holds Prosecution under 18 U.S.C. § 117 for Indian Country D.V. Does Not Require Indian Victim or Perpetrator

Here are the materials in United States v. Unzueta (E.D. Mich.):

18 Magistrate Report

24 US Response

29 Defendant Response

30 DCT Order

Ninth Circuit Reverses Major Crimes Act Conviction on Indian Status Grounds

Here is the opinion in United States v. Alvirez.

The court’s syllabus:

The panel reversed a conviction for assault resulting in serious bodily injury on an Indian reservation, in violation of 18 U.S.C. §§ 1153 and 113(a)(6), and remanded.

The panel held that the district court abused its discretion when it determined that a Certificate of Indian Blood offered into evidence by the government in order to establish Indian status, an essential element of § 1153, was a self-authenticating document under Fed. R. Evid. 902(1). The panel held that this error was not harmless.

The panel held that the district court did not abuse its discretion in denying the defendant’s motion in limine to exclude references to polygraph evidence, where the defendant, who elected not to present his multiple-interrogation defense as a legal strategy, was not denied the opportunity to present his defense.

The panel held that the district court cannot show plain error in the district court’s application of enhancement under U.S.S.G. § 2A2.2 for infliction of permanent or life-threatening injury.

The panel held that double jeopardy does not bar retrial after reversal in this case because the erroneously-admitted Certificate of Indian Blood was nevertheless sufficient evidence to support the conviction.

Briefs here.


Federal Court Issues Interesting Post-Zepeda Indian Status Decision

Here are the materials in United States v. Loera (D. Ariz.):

7 Loera Opening Brief

16 Loera Revised Opening Brief

24 US Response

25 Reply

26 DCT Order

An excerpt:

Loera does not meet the first two and most important factors of Bruce’s second prong. And while evidence supports finding that he did satisfy the third and fourth Bruce factors, the Government has successfully demonstrated that Loera’s satisfaction of those factors is weak. In the end, accounting for the descending level of importance given to each Bruce factor, and viewing the evidence in the light most favorable to the Government, a rational trier of fact could have found beyond a reasonable doubt that Loera does not qualify as an Indian. See Cruz, 554 F.3d at 844. Accordingly, the Court affirms the decision of the magistrate court below; the exercise of federal jurisdiction over this case was appropriate pursuant to § 1152.


US Cert Opposition Brief in Zepeda


US Cert Opp Brief

An excerpt:

Petitioner contends (Pet. 11-22) that the Ninth Circuit’s definition of an “Indian” for purposes of 18 U.S.C. 1153 violates equal protection. Petitioner further asserts (Pet. 22-23) that the Ninth Circuit’s decision conflicts with a decision from the Utah Supreme Court. Those claims lack merit. The court of appeals’ decision – which follows this Court’s precedent – is fully consistent with the Constitution, and no conflict exists on the question presented. Moreover, this case would be a poor vehicle to consider the meaning of “Indian” in Section 1153 because petitioner qualifies under any conceivable definition, including the one he proposes. Further review is not warranted.

Cert petition is here.