Hogner v. State

• Decision Date: 11 March 2021
• Docket Number: No. F-2018-138,F-2018-138
• Citation: 500 P.3d 629
• Parties: Travis John HOGNER, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

500 P.3d 629

Travis John HOGNER, Appellant

v.STATE of Oklahoma, Appellee.

No. F-2018-138

Court of Criminal Appeals of Oklahoma.

FILED MARCH 11, 2021

APPEARANCES AT TRIAL

DANNY JOSEPH, NICOLLETTE BRANDT, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR DEFENDANT

MATTHEW J. BALLARD, DISTRICT ATTORNEY, BRIAN SURBER, ASST. DISTRICT ATTORNEY, 210 W. DELAWARE, STE. 202, VINITA, OK 74301

MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, CAROLINE E.J. HUNT, HANNAH WHITE, ASST. ATTORNEYS GENERAL, 313 N.E. 21^ST ST. OKLAHOMA CITY, OK 73105, COUNSEL FOR THE STATE

SARA HILL, ATTORNEY GENERAL, CHEROKEE NATION, P.O. BOX 1533, TAHLEQUAH, OK 74465

APPEARANCES ON APPEAL

LISBETH L. McCARTY, DANNY JOSEPH, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

MIKE HUNTER, ATTORNEY GENERAL OF OKLAHOMA, CAROLINE E.J. HUNT, HANNAH WHITE, ASST. ATTORNEYS GENERAL, 313 N.E. 21^ST ST. OKLAHOMA CITY, OK 73105, COUNSEL FOR THE STATE

OPINION

LUMPKIN, JUDGE:¹

¶1 Appellant Travis John Hogner was charged and tried by jury for Feloniously Pointing a Firearm ( 21 O.S.Supp.2012, § 1289.16 ) or in the alternative Domestic Assault with a Dangerous Weapon ( 21 O.S.Supp.2014, § 644 ) (Count I); Possession of a Firearm, After Former Conviction of a Felony ( 21 O.S. Supp.2014, § 1283 ) (Counts II and III); Kidnapping ( 21 O.S.Supp.2012, § 751 (Count V); Interference with Emergency Telephone Call, misdemeanor ( 21 O.S.2011, § 1211.1 ) (Count VIII); and Domestic Assault and Battery, Second or Subsequent Offense ( 21 O.S.Supp.2014, § 644 ) (Count IX), all felonies were After Former Conviction of Two or More Felonies, in the District Court of Craig County, Case No. CF-2015-263.² In the first stage of trial, the jury found Appellant not guilty in Counts I, V, VIII, and IX. In the second stage of trial, the jury found Appellant guilty in Count II but not guilty in Count III. In the third stage of trial, the jury found Appellant guilty of two or more prior felony convictions and recommended a sentence of fifty (50) years imprisonment. The Honorable H.M. Wyatt, III, Associate District Judge, sentenced Appellant in accordance with the jury's recommendation.³

¶2 In Proposition I, Appellant claims the District Court lacked jurisdiction to try him. Appellant argues that he is a citizen of the Miami Tribe of Oklahoma and the crime occurred within the boundaries of the Cherokee Nation.

¶3 Pursuant to McGirt v. Oklahoma , ––– U.S. ––––, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020) Appellant's claim raises two separate questions: (a) his Indian status and (b) whether the crime occurred in Indian Country. These issues require fact-finding. We therefore remanded this case to the District Court of Craig County for an evidentiary hearing.

¶4 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. Upon Appellant's presentation of prima facie evidence as to his legal status as an Indian and as to the location of the crime as Indian Country, the burden shifts to the State to prove it has subject matter jurisdiction. The District Court was ordered to determine whether Appellant has some Indian blood and is recognized as an Indian by a tribe or the federal government. The District Court was also directed 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 so doing, the District Court was directed to consider any evidence the parties provided, including but not limited to treaties, statutes, maps, and/or testimony.

¶5 We also directed the District Court that in the event the parties agreed as to what the evidence would show with regard to the questions presented, the parties may enter into a written stipulation setting forth those facts upon which they agree and which answer the questions presented and provide the stipulation to the District Court. The District Court was also ordered to file written findings of fact and conclusions of law with this Court.

¶6 An evidentiary hearing was timely held before the Honorable Shawn S. Taylor, District Judge, and an Order on Remand from that hearing was timely filed with this Court. The record indicates that appearing before the District Court were attorneys from the office of the Attorney General of Oklahoma, the Craig County District Attorney's Office, appellate defense counsel, and the office of the Attorney General of the Cherokee Nation.

¶7 In its Order on Remand, the District Court stated that the State of Oklahoma and Appellant stipulated to Defendant/Appellant's "Indian status by virtue of his tribal membership and proof of blood quantum." Further, "based upon the stipulations provided", the Court "specifically finds Defendant/Appellant (1) has some Indian blood and (2) is recognized as an Indian by a tribe or federal government. The Defendant/Appellant is an Indian."

¶8 Regarding whether the crime occurred in Indian country, the Order states that the "State of Oklahoma and Defendant/Appellant stipulated that the crime occurred within the historical boundaries of the Cherokee Nation. The State takes no position as to the facts underlying the existence, now or historically, of the alleged Cherokee Nation Reservation."

¶9 In determining whether Congress established a reservation for the Cherokee Nation, the District Court stated that it considered the following:

1. The Cherokee Nation is a federally recognized Indian tribe. 84 C.F.R. § 1200 (2019).

2. The current boundaries of the Cherokee Nation encompass lands in a fourteencounty area within the borders of the State of Oklahoma, including all of Adair, Cherokee, Craig, Nowata, Sequoyah, and Washington Counties, and portions of Delaware, Mayes, McIntosh, Muscogee, Ottawa, Rogers, Tulsa and Wagoner Counties as indicated in Combined Hearing Exhibit 1, tab 3.

3. The Cherokee Nation's treaties are to be considered on their own terms, in determining reservation status. McGirt v. Oklahoma, ––– U.S. ––––, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020).

4. In McGirt the United States Supreme Court noted that Creek treaties promised a "permanent home" that would be "forever set apart" and assured a right to self-government on lands that would lie outside both the legal jurisdiction and geographic boundaries of any state. McGirt, 140 S.Ct. at 2461-62. As such, the Supreme Court found that "Under any definition, this was a [Creek] reservation." McGirt, 140 S.Ct. at 2461.

5. The Cherokee treaties were negotiated and finalized during the same period of time as the Creek treaties, contained similar provisions that promised a permanent home that would be forever set apart, and assured a right to self-government on lands that lie outside both the legal jurisdiction and geographic boundaries of any state.

6. The 1833 Cherokee treaty "solemnly pledged" a "guarantee" of seven million acres to the Cherokee on new lands in the West "forever". Treaty with the Western Cherokee Preamble, Feb. 14 1833, 7 Stat. 414

7. The 1833 Cherokee treaty used precise geographic terms to describe the boundaries of the new Cherokee lands, and provided that a patent would issue as soon as reasonably practical. Art. 1, 7 Stat. 414.

8. The 1835 Cherokee treaty was ratified two years later "with a view to re-unite their people in one body and to secure to them a permanent home for themselves and their posterity". In what became known as Indian Territory, "without the territorial limits of the state sovereignties," and "where they could establish and enjoy a government of their choice, and perpetuate such a state of society as might be consonant with their views, habits and condition." Treaty with the Cherokee, Dec. 29, 1835, 7 Stat. 478 and Holden v. Jay, 84 U.S. (17 Wall.) 211, 237-38, 21 L.Ed. 523 (1872).

9. Like the Creek treaty promises, the United States' treaty promises to Cherokee Nation "weren't made gratuitously." McGirt , 140 S.Ct. at 2460. Under the 1835 treaty, Cherokee Nation "cede[d], relinquish[ed], and convey[ed]" all its aboriginal lands east of the Mississippi River to the United States. Arts. 1, 7 Stat. 478. In return the United States agreed to convey to Cherokee Nation, by fee patent, seven million acres in Indian Territory within the same boundaries as described in the 1833 treaty, plus "a perpetual outlet west." Art. 2, 7 Stat. 478.

10. The 1835 Cherokee treaty described the United States' conveyance to the Cherokee Nation of the new lands in Indian territory as a cession; required Cherokee removal to the new lands; covenanted that none of the new lands would be "included within the territorial limits or jurisdiction of any State or Territory" without tribal consent; and secured "to the Cherokee nation the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government...within their own country," so as long as they were consistent with the Constitution and laws enacted by Congress regulating trade with Indians. Arts. 1, 5, 8, 19, 7 Stat. 478.

11. On December 31, 1838, President Van Buren executed a fee patent to the Cherokee Nation for the new lands in Indian Territory. Cherokee Nation v. Hitchcock, 187 U.S. 294, 297, 23 S.Ct. 115, 47 L.Ed. 183 (1902). The title was held by the Cherokee Nation "for the common use and equal benefit of all the members."

Cherokee Nation v. Hitchcock, 187 U.S. at 307, 23 S.Ct. 115 ; see also Cherokee Nation v. JourneyCake, 155 U.S. 196, 207, 15 S.Ct. 55, 39 L.Ed. 120 (1894). Fee title is not inherently incompatible with reservation status, and establishment of a reservation does not require a "particular form of words." McGirt, 140 S.Ct. at 2475, citing Maxey v. Wright, 54 S.W. 807, 810 (Indian Ter. 1900) and Minnesota

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