Sizemore v. State

• Decision Date: 01 April 2021
• Docket Number: Case No. F-2018-1140
• Citation: 485 P.3d 867
• Parties: Devin Warren SIZEMORE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

485 P.3d 867

Devin Warren SIZEMORE, Appellant,

v.The STATE of Oklahoma, Appellee.

Case No. F-2018-1140

Court of Criminal Appeals of Oklahoma.

FILED APRIL 1, 2021

OPINION

ROWLAND, VICE PRESIDING JUDGE:

¶1 This appeal turns on whether Appellant Devin Warren Sizemore is an Indian as defined by federal law, and whether he committed murder and assault and battery upon a police officer within Indian country as that term is defined by federal law. Because the answer to both questions is yes, federal law grants exclusive criminal jurisdiction to the federal government on the murder charge at the very least and possibly the assault charge as well. Regardless, the State of Oklahoma was without jurisdiction to prosecute him.

1. Factual Background

¶2 In July of 2016, police in Krebs, Oklahoma were contacted by Sizemore's family members, worried about his and his twenty-one month old daughter's safety. Some fifteen hours after this call to police, officers searching for the pair heard screaming from a local pond and discovered Sizemore there. Upon seeing the police, he fled into the water and officers encountered him near what appeared to be a small body floating face down. Attempts to subdue him resulted in a fight both in and out of the water, but the officers eventually took him into custody. His young daughter was pulled from the water but did not survive; she had drowned.

¶3 Sizemore was tried by jury in the District Court of Pittsburg County, Case No. CF-2016-593, and convicted of First Degree Murder (Count 1), in violation of 21 O.S.Supp.2012, § 701.7 and Battery/Assault and Battery on a Police Officer (Count 2), in violation of 21 O.S.Supp.2015, § 649. In accordance with the jury's verdict, the Honorable Tim Mills, Associate District Judge, sentenced Sizemore to life imprisonment without the possibility of parole on Count 1 and five years imprisonment on Count 2, with the sentences to be served concurrently.

¶4 In this direct appeal, Sizemore alleges the following errors:

(1) The State of Oklahoma lacked jurisdiction to prosecute him because he is an "Indian" and the crime occurred in "Indian Country";

(2) He received ineffective assistance of trial counsel;

(3) The evidence was insufficient to prove all elements of First Degree Murder beyond a reasonable doubt;

(4) The district court erred in admitting his recorded interrogation;

(5) The district court erred by denying his motion to quash his arrest; and

(6) An accumulation of error deprived him of a fair trial.

¶5 Because, as noted above, we find relief is required on Sizemore's jurisdictional challenge in Proposition 1, his other claims are moot.

2. The Legal Background

A. The Major Crimes Act

¶6 Title 18 Section 1153 of the United States Code, known as the Major Crimes Act, grants exclusive federal jurisdiction to prosecute certain enumerated offenses committed by Indians within Indian country. It reads in relevant part as follows:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

18 U.S.C. § 1153(a) (2013).

¶7 Count 1, the murder charge, fits squarely within the Major Crimes Act and its exclusive federal jurisdiction, but whether Count 2 is among these enumerated crimes is much less clear. It may constitute a "felony assault under section 113", but that is not something we must decide today. If the assault on a police officer is not covered by Section 1153, it is subject to the Act's sister statute, 18 U.S.C. § 1152 (1948), which applies to other offenses and provides for federal or tribal jurisdiction. In either event, the State of Oklahoma was without jurisdiction to prosecute such an assault by an Indian within Indian country. See State v. Klindt , 1989 OK CR 75, ¶ 3, 782 P.2d 401, 403 ("[T]he State of Oklahoma does not have jurisdiction over crimes committed by or against an Indian in Indian Country.")

B. McGirt v. Oklahoma

¶8 Nothing we have said thus far is in any way new, as these federal statutes asserting federal criminal jurisdiction in Indian country are more than one hundred years old. What has recently changed is the definition of Indian country, within the borders of Oklahoma, for purposes of these statutes. In McGirt v. Oklahoma , 591 U.S. ––––, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020), the Supreme Court held that land set aside for the Muscogee-Creek Nation in the 1800's was intended by Congress to be an Indian reservation, and that this reservation exists today for purposes of federal criminal law because Congress has never explicitly disestablished it. Although the case now before us involves the lands of the Choctaw Nation, we find McGirt's reasoning controlling.

3. Two Questions Upon Remand

A. Sizemore's Status as Indian

¶9 After McGirt was decided, this Court, on August 19, 2020, remanded this case to the District Court of Pittsburgh County for an evidentiary hearing. The District Court was directed to make findings of fact and conclusions of law on two issues: (a) Sizemore's status as an Indian; and (b) whether the crime occurred in Indian Country, namely within the boundaries of the Choctaw 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 October 14, 2020, the parties stipulated to the first of these requirements, agreeing that (1) Sizemore has some Indian blood; (2) he was an enrolled member of the Choctaw Nation on the date of the charged offenses; and (3) the Choctaw Nation is a federally recognized tribe. Judge Mills accepted this stipulation and found that on the date of the charged crimes, Sizemore was an Indian for purposes of federal law. We adopt the district court's findings and conclusion.

B. Whether Crimes Were Committed in Indian Country

1. Congress Established a Choctaw Reservation in the 1800s

¶10 As to the second question on remand, whether the crimes were committed in Indian country, the stipulation of the parties was less dispositive. They acknowledged only that the charged crimes occurred within the historical geographic area of the Choctaw Nation as designated by various treaties. The stipulation went on to state that the crimes occurred in Indian country "only if the Court determines that those treaties established a reservation, and if the Court further concludes that Congress never explicitly erased those boundaries and disestablished that reservation."

¶11 In a thorough and well-reasoned order, Judge Mills examined the 19^th century treaties between the Choctaw Nation and the United States of America. He concluded that the land set aside for the Choctaw Nation, beginning with the Treaty of Dancing Rabbit Creek in 1830, as reaffirmed and modified by the Treaty of Washington in 1855, and further modified by the post-civil war Treaty of Washington in 1866, established a Choctaw Reservation.

¶12 This finding is consistent with McGirt , where the majority found it "obvious" that a similar course of dealing between Congress and the Creeks had created a reservation, even though that term had not always been used to refer to the lands set aside for them, "perhaps because that word had not yet acquired such distinctive significance in federal Indian law." McGirt , 140 S.Ct. at 2461. Following the reasoning in McGirt , Judge Mills ruled that through its treaties with the Choctaw Nation, Congress established a Choctaw Reservation in the 1800's.

2. Congress Has Never Disestablished the Choctaw Reservation

¶13 "To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress." McGirt , 140 S.Ct. at 2462. No particular words or verbiage are required, but there must be a clear expression of congressional intent to terminate the reservation.

History shows that Congress knows how to withdraw a reservation when it can muster the will. Sometimes, legislation has provided an "[e]xplicit reference to cession" or an "unconditional commitment ... to compensate the Indian tribe for its opened land." Ibid. Other times, Congress has directed that tribal lands shall be " ‘restored to the public domain.’ " Hagen v. Utah , 510 U.S. 399, 412, 114 S.Ct. 958, 127 L.Ed.2d 252 (1994) (emphasis deleted). Likewise, Congress might speak of a reservation as being " ‘discontinued,’ " " ‘abolished,’ " or " ‘vacated.’ " Mattz v. Arnett , 412 U.S. 481, 504, n. 22, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). Disestablishment has "never required any particular form of words," Hagen , 510 U.S., at 411, 114 S.Ct. 958. But it does require that Congress clearly express its intent to do so, "[c]ommon[ly with an] ‘[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests.’ " Nebraska v. Parker , 577 U. S. 481, 488, 136 S.Ct. 1072, 1079, 194 L.Ed.2d 152 (2016).

Id. , 140 S.Ct. at 2462-63.

¶14 The record before the district court in this case, similar to that in McGirt , shows Congress, through treaties, removed the Choctaw people from one area of the United States to another where they were promised certain lands. Subsequent treaties redefined the geographical boundaries of those lands, but nothing in any of those documents showed a congressional intent to erase the boundaries of the Reservation and terminate its existence.¹ Congress, and Congress alone, has the power to abrogate those treaties, and "this Court [will not] lightly...