2021 OK CR 12 MAY T.

6 2021
IN THE COURT OF CRIMINAL APPEALS
OHN D HADDEN
OF THE STATE OF OKLAHOMA CLERK

MILES STERLING BENCH, ) FOR PUBLICATION

Petitioner,
vs. ) No. PCD-2015-698

THE STATE OF OKLAHOMA,

Respondent.

OPINION GRANTING POST-CONVICTION RELIEF

LUMPKIN, JUDGE:’

1 Miles Sterling Bench was tried by jury and convicted of First

Degree Murder in the District Court of Stephens County, Case No. CF—

2012-172. In accordance with the jury’s verdict, the Honorable G.

Brent Russell sentenced Petitioner to death. Petitioner appealed his

conviction in Case No. D-2015-462 and this Court denied relief. Bench

v. State, 2018 OK CR 31, 431 P.3d 929. Petitioner sought post-

1 As stated in my separate writing in Bosse v. State, 2021 OK CR 3, — P.3d —

(Lumpkin, J., concurring in result), I am bound by my oath and adherence to the

Federal-State relationship under the U.S. Constitution to apply the edict of the
majority opinion in McGÜ-t v. Oklahoma, 140 S. Ct. 2452 (2020). However, I
continue to share the position of Chief Justice Roberts’ dissent in McGirt, that at
the time of Oklahoma Statehood in 1907, all parties accepted the fact that Indian
reservations in the state had been disestablished and no longer existed.
conviction relief, filing the instant post-conviction application.

Petitioner seeks post-conviction relief from this conviction and

sentence, challenging the jurisdiction of Stephens County to try him

for B.H.’s heinous murder at the Teepee Totem convenience store in

Velma, Oklahoma.

¶2 In his first proposition, Petitioner claims the District Court of

Stephens County lacked jurisdiction to try him. Petitioner argues he

had some quantum of Indian blood and the murder occurred within

the boundaries of the Chickasaw Nation.

¶3 Pursuant to McGirt v. Oklahoma, 140 5. Ct. 2452 (2020),

Petitioner’s claim raises two separate questions: (a) his Indian status

and (b) whether the crime occurred in Indian Country. Because these

issues require fact-finding, we remanded this case to the District Court

of Stephens County for an evidentiaiy 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 Petitioner’s presentation of

prima fade evidence as to his legal status as an Indian and as to the

location of the crime in Indian Country, the burden would shift to the

2
State to prove it has subject matter jurisdiction. The District Court was

ordered to: determine whether Petitioner has some Indian blood and is

recognized as an Indian by a tribe or the federal government and

determine whether the crime occurred in Indian Country. The District

Court was directed to follow the analysis set out in McGirt to find (1)

whether Congress established a reservation for the Chickasaw 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 could 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 facts and

conclusions of law with this Court.

¶6 The Honorable G. Brent Russell, Associate District Judge,

held an evidentiary hearing in this case, and Findings of Fact and

Conclusions of Law from that hearing were timely filed with this Court.

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The record indicates that appearing before the District Court were

attorneys from the office of the Attorney General of Oklahoma, the

Stephens County District Attorney’s Office, the Oklahoma Indigent

Defense System and the Chickasaw Nation. Members of the victim’s

family were also present.

¶7 The District Court’s Findings of Fact and Conclusions of Law

set forth that the State of Oklahoma and Petitioner “stipulated that

Petitioner, Miles Sterling Bench, has 1/64 Choctaw blood” and “was

an enrolled member of the federally recognized Choctaw Nation at the

time of the crime.”

¶8 The Findings of Fact and Conclusions of Law further state,

regarding whether the crime occurred in Indian Country, that the State

of Oklahoma and Petitioner stipulated that the crime occurred “in

Stephens County, Oklahoma, at the Teepee Totem gas station located

at 407 North Main Street in Velma, Oklahoma” and “that the above —

described address is within the historical geographic area of the

Chickasaw Nation, as set forth in the 1855 and 1866 treaties between

the Chickasaw Nation, the Choctaw Nation, and the United States.”

The Findings of Fact and Conclusions of Law also state that “the

parties stipulated that if the Court determines that treaties established

4
a reservation on behalf of the Chickasaw Nation that has not

subsequently been disestablished, then the crime occurred within

Indian Country as defined by 18 U.S.C. § 1151(a).”

¶9 In determining whether congress established a reservation

for the chickasaw Nation, the District court found:

3. The Indian Removal Act of 1830 authorized the President

of the United States to cause so much of any territory
belonging to the United States, west of the Mississippi
River, to be divided into a suitable number of districts,
for the reception of such tribes or nations of Indians who
may choose to exchanges [sic] lands where they already
resided.

4. Pursuant to the authority set out in the Indian Removal

Act of 1830, the 1830 Treaty of Dancing Rabbit Creek
was entered, in which the United States caused to be
conveyed to the Choctaw Nation, “while they shall exist
as a nation and live on it,” certain lands described as
“beginning near Fort Smith where the Arkansas
boundary crosses the Arkansas River, running thence to
the source of the Canadian fork; if in the limits of the
United States, or to those limits; thence due south to
Red River, and down Red River to the West boundary of
the Territory of Arkansas; thence north along that line to
the beginning.”

5. Thereafter, in the 1837 Treaty of Doaksville, the Choctaw

and Chickasaw Nations entered into an agreement
whereby the Choctaw Nation granted the Chickasaw
tribe a district within the lands granted under the 1830
Treaty of Dancing Rabbit Creek, to be held on the same
terms previously enjoyed by the Choctaws, which was
approved and confirmed by the President of the United
States. The 1837 treaty made the provisions of the 1830

5
 Treaty of Dancing Rabbit Creek applicable to the
Chickasaw Nation.

6. Subsequently, in 1855, the Treaty of Washington

modified the boundaries of the Chickasaw territory. The
description outlined in the Treaty incorporated the lands
upon which the subject crime occurred.

7. The Chickasaw Nation is a federally recognized Indian

tribe that exercises authority pursuant to the
Constitution of the Chickasaw Nation, and which has
been approved by the Secretary of the Interior of the
United States.

8. There is no evidence, presented by either party to the

Court, that indicates that the above-described treaties
have been nullified or modified in any way to reduce or
ceded the lands described therein to the State of
Oklahoma.

¶ 10 The District Court made Conclusions of Law as follows: that

pursuant to the above treaties, “[t]he plain wording of the treaties

discussed above clearly demonstrate [sici that Congress established a

reservation for the Chickasaw Nation.” Further, regarding whether

Congress specifically erased the boundaries or disestablished the

Chickasaw Reservation, the District Court concluded: “[n]o evidence

was presented to the Court to establish that Congress erased or

disestablished the boundaries of the Chickasaw Nation” and

“[a]ccordingly, the Court finds that Congress established a reservation

for the Chickasaw Nation, and thereafter never specifically and

6
explicitly erased and disestablished such reservation boundaries.

Therefore, the Court finds that the subject crime occurred in Indian

Country.”

¶11 The District Court made additional Findings of Fact and

Conclusions of Law. Specifically, the Court found that Petitioner’s

jurisdictional claim was procedurally barred because he did not raise

it on direct appeal but only in his post-conviction application. The

District Court relied upon the language in McGirt that its ruling was

nothing new and recognizing that Oklahoma had been dealing with the

jurisdictional issue as far back as 1989. The District Court also

determined that McGi,-t mentioned Oklahoma’s general rule that issues

which could have been raised on direct appeal but were not are waived

from further review.

¶12 Ultimately, the District Court concluded that Petitioner was

an Indian and that the instant crime occurred in Indian Country, but

that Petitioner’s jurisdictional claim was barred pursuant to 22

O.S.2011, § 1089.

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 ¶13 Both Petitioner and Respondent2 filed response briefs

addressing issues from the evidentiary hearing. Petitioner vehemently

argues against the District Court’s finding of procedural bar, citing this

Court’s Order Remanding for Evidentiary Hearing in Bosse v. State,

Case No. PCD-2019-124 (Aug. 12, 2020). He also argues “there is

nothing in the record before this Court (because nothing exists) that

would show the Chickasaw Reservation has been disestablished.”

Petitioner further argues, “{t]his Court should grant Petitioner’s

application for post-conviction relief, and remand to the district court

with instructions to vacate Petitioner’s judgment and sentence in CF

12-172.”

¶14 In its first supplemental brief, the State acknowledges the

District Court accepted the parties’ stipulations concerning Petitioner’s

status as an Indian. The State also acknowledges the District Court

applied McGirt and found Congress did establish a Chickasaw

Reservation and no evidence was presented that it had been

disestablished.

2 We grant Respondent’s Motion to File Supplemental Brief.

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 ¶ 15 The State focused its argument in its second supplemental
brief on the District Court’s finding that Petitioner’s jurisdictional

claim is procedurally barred. This Court addressed that specific

argument recently in Bosse v. State, 2021 OK CR 3, P.3d .3 With

regard to concurrent jurisdiction, after finding no support for the

argument in the law, the Court held, “[a]bsent any law, compact, or

treaty allowing for jurisdiction in state, federal or tribal courts, federal

and tribal governments have jurisdiction over crimes committed by or

against Indians in Indian Country.” Id., 2021 OK CR 3, ¶ 28, P.3d

at . The Court also found no merit in the State’s procedural bar

argument, holding, “McGirt provides a previously unavailable legal

basis for [the jurisdictional] claim. Subject-matter jurisdiction may-

indeed, must-be raised at any time. No procedural bar applies, and

this issue is properly before us.” Id., 2021 OK CR 3, ¶ 22, P.3d at

_,citing 22 O.S.[2011], § 1089(D)(8)(a), 1089(D)(9)(a).

While the majority in McGirt alluded to the availability of procedural bars, Chief
Justice Roberts correctly noted in his dissent at footnote 9 that subject matter
jurisdiction is never waived under Oklahoma law. McGirt, 140 S. Ct. 2452, 2501
n.9 (2020) (Roberts, C.J., dissenting). See Wallace v. State, 1997 OK CR 18, ¶
15, 935 P.2d 366, 372. While Art. 7 of the Oklahoma Constitution vests the
district courts of Oklahoma with “unlimited original jurisdiction of all justiciable
matters,” the federal government has pre-empted the field as it relates to major
crimes committed by or against Indians in Indian country.
9
 ¶16 The State requests that should this Court find Petitioner is

entitled to relief based on the District Court’s findings, this Court

should stay any order reversing the conviction for thirty (30) days so

the United States Attorney’s Office for the Western District of

Oklahoma can secure custody of Petitioner.

¶17 After thorough consideration of this proposition and the

entire record before us, including the original post-conviction record,

transcripts of the evidentiary hearing, and briefs of the parties, we find

that under the law and the evidence relief is warranted. The State

stipulated to Petitioner’s status as an Indian, but presented no

argument regarding the existence of the Chickasaw Reservation and

whether it has been disestablished. This acquiescence has created a

legal void in this Court’s ability to adjudicate properly the facts

underlying Petitioner’s argument. This Court is left with only the

District Court’s Findings of Fact and Conclusions of Law to review for

an abuse of discretion. An abuse of discretion is any unreasonable or

arbitrary action taken without proper consideration of the facts and

law pertaining to the matter at issue. State v. Delso, 2013 OK CR 5, ¶

5, 298 P.3d 1192, 1194.

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 ¶18 Based upon the record before us, the District Court’s

Findings of Fact and Conclusions of Law regarding Petitioner’s Indian

status and the continued existence of a Chickasaw Reservation are

supported by the evidence presented at the evidentiary hearing. We

therefore find Petitioner has met his burden of establishing his status

as an Indian, having 1/64 Choctaw blood quantum and being an

enrolled member of the Choctaw Nation. We also find the District Court

appropriately applied McGirt to determine that Congress did establish

a Chickasaw Reservation and that no evidence was presented showing

that Congress explicitly erased or disestablished the boundaries of the

Chickasaw Nation. We further find the District Court abused its

discretion in concluding Petitioner’s jurisdictional claim is

procedurally barred.

¶19 Petitioner is an Indian and this despicable crime occurred

in Indian Country. The State of Oklahoma did not have jurisdiction to

prosecute Petitioner. Petitioner’s first proposition is granted.4

DECISION

¶20 The Judgment and Sentence of the District Court of

Stephens County is REVERSED and the case is REMANDED with

4Because of our resolution of this proposition, the others raised in Petitioner’s post-
conviction application are moot.
11
instructions to DISMISS. The MANDATE is STAYED for twenty (20)
days from the delivery and filing of this decision.5

AN APPEAL FROM THE DISTRICT COURT OF STEPHENS COUNTY

THE HONORABLE G. BRENT RUSSELL,
ASSOCIATE DISTRICT JUDGE

APPEARANCES AT APPEARANCES ON APPEAL

EVIDENTIARY HEARING

KRISTI CHRISTOPHER KRISTI CHRISTOPHER

OKLAHOMA INDIGENT OKLAHOMA INDIGENT
DEFENSE SYSTEM DEFENSE SYSTEM
BOX 926 BOX 926
NORMAN, OK 73070-926 NORMAN, OK 73070-926
COUNSEL FOR PETITIONER COUNSEL FOR PETITIONER

JASON HICKS MIKE HUNTER

DISTRICT ATTORNEY ATTORNEY GENERAL
101 S. 11TH STREET OF OKLAHOMA
DUNCAN, OK 73533 CAROLINE E.J. HUNT
COUNSEL FOR RESPONDENT JENNIFER CRABB
ASST. ATTORNEYS GENERAL
JENNIFER CRABB 313 N.E. 21ST ST.
ASST. ATTORNEY GENERAL OKLAHOMA CITY, OK 73105
313 N.E. 21ST ST. COUNSEL FOR RESPONDENT
OKLAHOMA CITY, OK 73015
COUNSEL FOR RESPONDENT

DEBRA GEE
GENERAL COUNSEL AND
EXECUTIVE OFFICER, LEGAL
DIVISION, DEPARTMENT OF
INTERIOR SERVICES FOR THE
CHICKASAW NATION
P.O. BOX 1548

5 By withholding the issuance of the mandate for 20 days, the State’s request for
time to determine further prosecution is rendered moot.
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ADA,OK 74821
COUNSEL FOR THE
CHICKASAW TRIBE

OPINION BY: LUMPKIN, J.

KUEHN, P.J..: Concur in Results
ROWLAND, V.P.J.: Specially Concur
LEWIS, J.: Concur in Results
HUDSON, J.: Specially Concur

13
KUEHN, PRESIDING JUDGE, CONCURRING IN RESULT:

¶1 I agree with the Majority that the State of Oklahoma had no

jurisdiction to try Petitioner. This Court recently found that the

Chickasaw Reservation was not disestablished and is Indian country.

Bosse v. State, 2021 OK CR 3, ¶J 11-12. Oklahoma does not have

jurisdiction to prosecute crimes committed by or against Indians in

Indian Country. Bosse, 2021 OK CR3, ¶ 28; 18 U.S.C. § 1152, 1153.

Because this Court has already decided the issue of reservation

status, I find the Majority’s discussion of it dicta.

¶2 I recognize that this decision has immediate and painful

consequences for the victim’s family and the community where the

crime occurred. The United States Supreme Court noted in McGirt

that its decision could “unsettle” many criminal convictions, but

concluded that this was not a sufficient reason to avoid applying the

controlling law. McGirt v. Oklahoma, 591 U.S. —, 140 S.Ct. 2452,

2479-80. Ultimately, this is a correct statement of the law, by which

this Court is bound. But this Court is first and foremost a court for

the citizens of Oklahoma, and its members are citizens of Oklahoma

as well. We see and understand the consequences of this decision in

a way the United States Supreme Court cannot.

¶3 Strikingly, the Supreme Court did not mention the

unsettling consequences for victims and their families when they

have to relive a trial, and in the worst case, watch as neither the

federal nor tribal governments can prosecute the offender. Even one

conviction overturned with the offender released without much

consequence for a crime is too many. I recognize and understand the

confusion, frustration, and pain that comes with the inevitable

consequences when we apply McGirt to the cases before us. If it were

possible to avoid these consequences through my legal analysis, I

would.

¶4 Native Americans have long awaited the statements of the

McGirt ruling, but none celebrate a lack of justice for victims, victims

who are often Native American. Logically, Tribal and Oklahoma

citizens want to punish those who commit crimes and lessen stress

and harm on victims and their families. Under the McGirt ruling, that

is not always the case. Unfortunately, a remedy is not for this Court

to prescribe under the McGirt precedent. The cure for the ailments

2
caused by this decision must come quickly by the Tribes and others

working together with humility and discernment, further legal rulings

from the United States Supreme Court, or Congress exercising its

authority. McGirt, 591 U.S. 2481—82.

¶5 I also cannot entirely agree with the Majority’s

characterization of the State’s position below as “acquiescence.” As I

have said before, the State’s decision to not take a position on

reservation status was an available legal strategy and conserved

judicial resources.1 Hogner v. State, 2021 OK CR 4, ¶ 2 (Kuehn, P.J.,

concurring in result). And I repeat that there is no “void” in the

record. Petitioner provided the trial court with maps, treaties, and

statutes relevant to the jurisdictional issue. The State chose not to

augment or contest this law and evidence. There was a complete

record below and a full record on appeal. The trial court’s findings

and conclusions set forth the details of the evidence used to make its

‘This position is also entirely consistent with the State’s position in civil Indian
Child Welfare Act proceedings. On August 1, 2020, the Oklahoma Department
of Human Services, on behalf of the State, entered into an Intergovernmental
Agreement Between the State of Oklahoma and Each of the Five Tribes Regarding
Jurisdiction Over Indian Children Within Each Tribe’s Reservation (filed,
Oklahoma Secretary of State, Aug. 1, 2020). Throughout the Agreement the State
explicitly recognizes the continued existence of the Chickasaw Reservation.

3
decisions. The State made a responsible choice entirely consistent

with effective representation. Often, in a criminal trial, the defendant

does not offer evidence to counter the evidence of guilt presented by

the State. And yet, this Court routinely finds the evidence is sufficient

for our review, without complaining that the defendant’s choice

leaves a void in the record. The same is true here.

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ROWLAND, VICE PRESIDING JUDGE, SPECIALLY CONCURRING:

¶ 1 I agree with the majority that the U.S. Supreme Court’s

decision in McGirt v. Oklahoma, 591 U.S._, 140 S.Ct. 2452 (2020),

unfortunately, requires dismissing this murder conviction which

resulted in a sentence of death. I write separately to comment on two

issues.

¶2 First, I do not join in the view that the position the State has

taken leaves a legal void or negatively affects the standard of review

by which we are to judge this case. The State has agreed that Bench

is an Indian for purposes of federal criminal law, and that the crime

here took place on lands within the historical boundaries of the

Chickasaw Nation. The State took no position as to whether those

lands ever have or still do constitute a reservation, and offered no

evidence or argument to rebut Bench’s claim that a Chickasaw

Reservation remains intact today. Clearly, the State is aware that the

reasoning of McGirt, involving the Muscogee Creek Reservation, likely

applies to the Chickasaw lands as well. The Court, in McGirt, found

the existence of a Muscogee Creek Reservation in a large part of

eastern Oklahoma, even though neither the tribe, local governmental

units in that part of the state, nor the State of Oklahoma, had ever

1
behaved since statehood as though they believed a reservation still

existed. It seems to me the State is consistent in its long-held

position, effectively standing mute and leaving it to the district court

to expand McGirt to the Chickasaw lands. This is a reasonable

position to take and one that litigants in criminal cases take from

time to time.

¶3 Nor do I find that the State’s position negatively affects our

standard of review or ability to decide this case. Had the State taken

the active position that no Chickasaw Reservation exists today, and

had the district court nonetheless ruled against the State, we would

still have that ruling in the district court’s order to adjudicate.

¶4 The second issue I wish to address is that of subject matter

jurisdiction. Today’s Opinion Granting Post Conviction Relief

mentions subject matter jurisdiction because that is the language we

used to remand this case for findings of fact and law and in quoting

Bosse v. Oklahoma, 2021 OK CR 3, P.3d .. As I set forth in

detail in my separate writing to Bosse, Indian Country criminal

jurisdiction does not implicate subject matter jurisdiction. The Major

Crimes Act does not, indeed cannot, divest Oklahoma courts of

subject matter jurisdiction granted by the Oklahoma Constitution

2
and statutes enacted pursuant thereto. This federal criminal statute,

based upon the plenary power of Congress to regulate affairs with

Indian tribes, is instead an exercise of federal territorial jurisdiction

which preempts the similar authority of Oklahoma state courts under

these circumstances. The U.S. Supreme Court has never described

jurisdiction under 18 U.S.C. § 1152 and 1153 as subject matter

jurisdiction; few if any state high courts have so characterized it; and

the Tenth Circuit Court of Appeals has explicitly stated that subject

matter jurisdiction is not involved. United States v. Langford, 641

F.3d 1195, 1197 n.1 (10th Cir. 2011).

¶5 Because I concur with the legal reasoning contained in this

Opinion, and with its outcome, I concur specially with the majority.

3
LEWIS, JUDGE, CONCURRING IN RESULTS:

¶1 1 write separately to address the notion that McGirt v.

Oklahoma, 140 S.Ct. 2452 (2020), addresses something less than

subject matter jurisdiction over an Indian who commits a crime in

Indian Country or over any person who commits a crime against an

Indian in Indian Country. MeGirt, of course, serves as the latest

waypoint for our discussion on the treatment of criminal cases

arising within the historic boundaries of Indian reservations which

were granted by the United States Government many years ago. Id.,

140 S.Ct. at 2460, 2480. The main issue in McGirt was whether those

reservations were disestablished by legislative action at any point

after being granted.1

¶2 McGirt deals specifically, and exclusively, with the

boundaries of the reservation granted to the Muscogee (Creek)

Nation. Id., 140 S.Ct. at 2459, 2479. However, the other Indian

Nations comprising the Five Tribes have historical treaties with

language indistinct from the treaty between the Muscogee (Creek)

Nation and the federal government. Therefore, this case involving a

1 Despite my learned colleague’s belief that Chief Justice Roberts’s dissent

correctly assesses the current existence of Indian reservations within the State
of Oklahoma, McGirt sets the precedent that must be followed.
crime occurring within the historical boundaries of the Chickasaw

Nation Reservation must be analyzed in the same manner as the

boundaries of the Muscogee (Creek) Nation Reservation. The District

Court below conducted a thorough analysis and concluded that the

reservation was not disestablished.2 I agree with this conclusion. I

disagree with the District Court’s conclusion, as does this Court’s

Opinion, that the claim is somehow procedurally barred.

¶3 McGirt was also clear that if the reservation was not

expressly disestablished by the United States Congress, Oklahoma

has no right to prosecute Indians for crimes committed within the

historical boundaries of the Indian reservations. Id., 140 S.Ct. at

2460. Therefore, because the Chickasaw Nation Reservation was not

disestablished, the State of Oklahoma has no authority to prosecute

Indians for crimes committed within the boundaries of the

Chickasaw Nation Reservation as was the case here, nor does

Oklahoma have jurisdiction over any person who commits a crime

2 The Opinion indicates that there is some “legal void” because the State
acquiesced to the District Court’s findings, thus we are limited to review for
abuse of discretion. Where there is arbitrary or unreasonable action by a District
Court, this Court has the power to intervene. Here, there simply is no evidence
that Congress disestablished the Chickasaw Nation Reservation by clearly
expressed intent as required by McGirt. Id., 140 S.Ct. at 2463; see Nebraska v.
Parker, 136 S.Ct. 1072, 1079 (2016).
2
against an Indian within the boundaries of the Chickasaw Nation

Reservation. The federal government has exclusive jurisdiction over

those cases. 18 U.S.C. § 1153(a).

¶4 A lack of subject matter jurisdiction leaves a court without

authority to adjudicate a matter. This Court has held that subject

matter jurisdiction cannot be conferred by consent, nor can it be

waived, and it may be raised at any time. Armstrong v. State, 1926

OK CR 259, 248 P. 877, 878; Cravatt v. State, 1992 OK CR 6, ¶ 7,

825 P.2d 277, 280. Magnan v. State, 2009 OK CR 16, ¶J 9, 12, 207
P.3d 397, 403 (holding that jurisdiction over major crimes in Indian

Country is exclusively federal).

¶5 Because the issue in this case is one of subject matter

jurisdiction, I concur that this case must be reversed and remanded

with instructions to dismiss.

3
HUDSON, J., SPECIALLY CONCURRING:

¶1 Today’s decision applies McGirt v. Oklahoma, 140 U.S. 2452

(2020) to the facts of this case and dismisses a first degree murder

conviction that resulted in a death sentence from the District Court

of Stephens County. I fully concur in the majority’s opinion based

on the stipulations below concerning Petitioner’s Indian status and

the location of this crime within the historic boundaries of the

Chickasaw Reservation. Under McGirt, the State has no jurisdiction

to prosecute Petitioner. Instead, Petitioner must be prosecuted in

federal court. I therefore as a matter of stare decisis fully concur in

today’s decision.

¶2 I also join Judge Rowland’s observation in his special writing

that the Major Crimes Act does not affect the State of Oklahoma’s

subject matter jurisdiction in criminal cases but, rather, involves the

exercise of federal criminal jurisdiction to effectively preempt the

exercise of similar state authority. Further, I maintain my previously

expressed views on the significance of McGirt, its far-reaching impact

on the criminal justice system in Oklahoma and the need for a

practical solution by Congress. See Bosse, 2021 OK CR 3, _P.3d

(Hudson, J., Concur in Results); Hogner v. State, 2021 OK CR 4,

1
P.3d (Hudson, J., Specially Concurs); and Kraffi v. State, No. F

2018-340 (Okl.Cr., Feb. 25, 2021) (Hudson, J., Specially Concurs)

(unpublished).