U.S. v. Sands

Decision Date07 July 1992
Docket NumberNo. 91-7027,91-7027
Citation968 F.2d 1058
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ricky Lee SANDS, Defendant-Appellant. Muscogee (Creek) Nation and Seminole Nation of Oklahoma; Cherokee, Choctaw and Chickasaw Nations, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Edwin Kneedler, Atty. (Sidney M. Glazer, Acting Chief, Appellate Section, Criminal Div. and Andrew Levchuk, Atty.), Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Susan L. Foreman, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender), Denver, Colo., for defendant-appellant.

Leah Harjo Ware, Atty. Gen., Muscogee (Creek) Nation, Okmulgee, Okl. and L. Susan Work, Atty. Gen., Seminole Nation, Ada, Okl., for amici curiae Muscogee (Creek) Nation and Seminole Nation of Oklahoma.

James G. Wilcoxon and Chad Smith, Muskogee, Okl., and Bob Rabon, Rabon, Wolf & Rabon, Hugo, Okl., for amici curiae Choctaw and Chickasaw Nations.

Before LOGAN, ENGEL and KELLY, Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Defendant-appellant Ricky Lee Sands appeals his murder conviction and sentence. His prosecution for this offense has a long history. Mr. Sands and the victim, John Mauldin, are Creek (Muscogee) Indians and the incident occurred on a restricted fee allotment in the territory of the Five Civilized Tribes (which includes the Creeks) in eastern Oklahoma. He was prosecuted in Oklahoma state court for first degree murder, but successfully moved to have the case dismissed for lack of jurisdiction. Mr. Sands argued that the United States had jurisdiction, not Oklahoma. He then was prosecuted by the United States and pled guilty to possession of a firearm by a previously convicted felon, 18 U.S.C. §§ 922(g)(1) & 924(a)(1)(B), and was convicted by a jury of first degree murder, 18 U.S.C. §§ 1111 & 1153. On appeal, a divided panel reversed the murder conviction due to improper references to Mr. Sands' stay in the penitentiary. United States v. Sands, 899 F.2d 912 (10th Cir.1990). On retrial, Mr. Sands again was convicted by a jury and was sentenced to life imprisonment, with five years of supervised release on the murder count, and to a concurrent five years, with three years of supervised release, on the firearm count.

On appeal, Mr. Sands contends that (1) the prosecutor made an improper reference to his post-arrest silence, (2) the prosecutor engaged in misconduct by attributing an inculpatory statement to him which was not in the record, (3) the district court's jury instructions failed to apprise the jury that voluntary intoxication had a bearing on whether the murder was premeditated, (4) the district court erred in not granting him a hearing on his new trial motion based on ineffective assistance of counsel, and (5) the district court misapplied the Sentencing Guidelines because it was unaware of its discretion to depart downward. The government, after prosecuting Mr. Sands, now contends that we are without jurisdiction to hear this appeal because the district court lacked subject matter jurisdiction over the offense. The government urges us to adopt its frequently raised, but never accepted, argument that the State of Oklahoma retained jurisdiction over criminal offenses in Indian country. We first consider the jurisdictional issue, find the government's position wanting, and then affirm on the merits.

I.

In a nutshell, the government claims that the Indian Major Crimes Act, 18 U.S.C. § 1153, 1 which provides that federal criminal law applies to various offenses committed by Indians against Indians "within the Indian Country," does not apply because the restricted allotment in this case is not "Indian country" as defined in 18 U.S.C. § 1151. 2

According to the government, Congress intended to treat members of the Five Civilized Tribes essentially the same as non-Indians subject to state law. The government reaches this conclusion based on certain statutes predating the enactment § 1151. Specifically, the government urges that the following acts control the application of § 1151: (1) Indian Department Appropriations Act of 1897, ch. 3, § 1, 30 Stat. 83; (2) Curtis Act (Act of June 28, 1898), ch. 517, §§ 26, 28, 30 Stat. 495, 504-505; (3) Act of April 28, 1904, ch. 1828, § 2, 33 Stat. 575; and (4) Oklahoma Enabling Act of June 16, 1906, ch. 3335, §§ 2, 13, 16, 20-21, 34 Stat. 267-268, 275-78. See also Enabling Act Amendment, ch. 2911, §§ 1, 3, 4, 34 Stat. 1286-88. The government contends that criminal jurisdiction was conferred on Oklahoma in 1906 when cases of a local nature arising in Indian Territory were transferred to the State and the laws of Oklahoma were extended to Indian Territory.

The government relies on perceived Congressional intent and practical considerations to support its position. Several Congressional acts applicable to the allotments of the Five Civilized Tribes provide that state law governs concerning alienation, partition and heirship. These acts ostensibly demonstrate that Congress intended to confer broad jurisdiction on the State of Oklahoma, even going beyond a grant of criminal jurisdiction to the State. Additionally, the government points to practical considerations which suggest that the State should assume criminal jurisdiction over "checkerboard" Indian allotments because the State plainly has jurisdiction over neighboring non-Indian land.

We agree with the amici curiae that the allotments of individual citizens are Indian country within the express terms of § 1151(c). By 1948, when § 1151 was enacted, "Indian country" included both trust allotments and restricted fee allotments, as in this case. See United States v. Ramsey, 271 U.S. 467, 471, 46 S.Ct. 559, 560, 70 L.Ed. 1039 (1926); United States v. Pelican, 232 U.S. 442, 449, 34 S.Ct. 396, 399, 58 L.Ed. 676 (1914). See also State v. Burnett, 671 P.2d 1165, 1167 (Okla.Crim.App.1983). Section 1151 contains no hint that allotments of the Five Civilized Tribes are not within its reach. We have ruled to the contrary. Indian Country, U.S.A. v. Oklahoma Tax Comm'n, 829 F.2d 967 (10th Cir.1987), cert. denied, 487 U.S. 1218, 108 S.Ct. 2870, 101 L.Ed.2d 906 (1988).

In Indian Country, U.S.A., we held that Oklahoma laws concerning the regulation of bingo and collection of sales tax were preempted on unallotted Creek tribal lands. In reaching this conclusion, we construed § 1151(a) and also recognized that "[t]ribal lands, trust lands, and certain allotted lands generally remain Indian country." Id. at 973, 975 n. 3. The government's position in this case is virtually identical to that of the State of Oklahoma in Indian Country, U.S.A., although the government relies on the Act of April 28, 1904 as additional support for the theory. We agree with amici Muscogee (Creek) Nation and Seminole Nation that the enactments relied on by the government did not abrogate the federal government's authority and responsibility, nor allow jurisdiction by the State of Oklahoma. Amici Brief at 9-16; Indian Country, U.S.A., 829 F.2d at 978. Additionally, the government's construction of the Oklahoma Enabling Act ignores § 1 of that Act, 34 Stat. 267-78, which preserved federal authority. Indian Country, U.S.A., 829 F.2d at 979.

The government's position is undermined further because Congress has granted some states criminal jurisdiction over Indian country. See, e.g., 18 U.S.C. §§ 1162, 3243. See also California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244 (1987); Ross v. Neff, 905 F.2d 1349, 1352 (10th Cir.1990). Equally relevant, the United States has consented to States assuming criminal jurisdiction in Indian country, provided that the Tribe consents. 25 U.S.C. §§ 1321, 1324. Oklahoma, however, has not taken the affirmative steps necessary for such an assumption of jurisdiction, let alone obtained consent. Ross, 905 F.2d at 1352; Indian Country, U.S.A., 829 F.2d at 980; State ex rel. May v. Seneca-Cayuga Tribe, 711 P.2d 77, 88 (Okla.1985); Burnett, 671 P.2d at 1167-68. See also Kennerly v. District Ct., 400 U.S. 423, 427, 91 S.Ct. 480, 482, 27 L.Ed.2d 507 (1971) (Montana without jurisdiction); United States v. Baker, 894 F.2d 1144, 1146 (10th Cir.1990) (Colorado without jurisdiction). The State of Oklahoma does not have jurisdiction over a criminal offense committed by one Creek Indian against another in Indian country. See Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439, 1446 (D.C.Cir.1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 786 (1989); Cravatt v. State, 825 P.2d 277, 279 (Okla.Crim.App.1992); State v. Klindt, 782 P.2d 401, 402-403 (Okla.Crim.App.1989); State v. Brooks, 763 P.2d 707, 710 (Okla.Crim.App.1988), cert. denied, 490 U.S. 1031, 109 S.Ct. 1769, 104 L.Ed.2d 204 (1989). The federal government does. See Solem v. Bartlett, 465 U.S. 463, 465 n. 2, 104 S.Ct. 1161, 1163 n. 2, 79 L.Ed.2d 443 (1984); DeCoteau v. District County Ct., 420 U.S. 425, 427-28, 95 S.Ct. 1082, 1084-85, 43 L.Ed.2d 300 (1975). Although the government urges that previous cases supporting this conclusion have failed to examine the turn-of-the-century Congressional enactments it relies on, the government did not cite, let alone analyze, Indian Country U.S.A. which did so in several material respects. We remain unpersuaded by the argument. The government reminds us that law enforcement might be easier if the State had jurisdiction over the checkerboard of Indian and non-Indian land involved. We are not empowered to decide the issue on that basis, but we note that cross-deputization may assist in filling a jurisdictional void.

II.

Mr. Sands first contends that the prosecutor improperly commented on his post-arrest silence in violation of the Fifth Amendment. A defendant's silence at the time of arrest and after receiving a Miranda warning may not be used for impeachment. Doyle v. Ohio, 426 U.S. 610, 620, 96 S.Ct. 2240, 2246, 49 L.Ed.2d 91 (1976). The rationale for the rule is that...

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