--- Am. Tribal Law ----, 2024 WL 1338338 (Cherokee Sup.Ct.)
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Supreme Court of the Cherokee Nation.
CHEROKEE NATION, Appellee/Plaintiff,
v.
Dakota SHRIVER, Appellant/Defendant,
CASE NO. SC-2022-09
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Signed April 24, 2023
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FILED March 28, 2024
APPEAL FROM DISTRICT COURT OF THE CHEROKEE NATION, CASE NO. CRM-2021-56, HONORABLE T. LUKE BARTEAUX, TRIAL JUDGE, AFFIRMED
Before: Chief Justice John C. Garrett, Justice Mark L. Dobbins, Justice Shawna S. Baker, Justice Rex Earl Starr
AFFIRMING THE DECISION OF THE TRIAL COURT
Opinion By: Justice Rex Earl Starr
NOW on this 24th day of April 2023, this matter of the appeal of the District Court’s Order entered earlier Denying the Appellate’s Motion to Quash and Dismiss, the Court finds that the District Court’s Order should be affirmed.
This matter of appeal involves the basic interpretation of 22 CNCA § 153, and the word “inhabitant” as used in § 153.
The Court finds there is no dispute as to the factual background leading to the interpretation issue. The District Court has correctly interpreted the statute as it applies to the factual background presented.
The Court hereby affirms the decision of the Cherokee Nation District Court in its entirety.
/s/ John C. Garrett
Chief Justice John C. Garrett
/s/ Rex Earl Starr
Justice Rex Earl Starr
JUSTICE BAKER, concurring in the opinion.
On Monday, October 22, 1990, Chief Mankiller addressed the Tribal Council and presented her State of the Nation address. After acknowledging visitors and dignitaries, the minutes reflect Chief Mankiller’s first order of business was a
report[ ] on the establishment of a Cherokee code which will provide laws to govern civil and criminal process on lands and individuals subject to tribal jurisdiction. The U.S. Tenth Circuit Courts have ruled the State of Oklahoma lacks jurisdiction on tribal and allotted properties subject to tribal U.S. supervision. The tribe was able to secure additional funding through the self governance compact to begin a court system to provide law enforcement measures. These measures will ensure that individuals located on tribal lands are provided protective services. The tribe plans to address the issue of individuals wanted for criminal charges seeking refuge on tribal lands. She stated the tribe does not condone people hiding on tribal lands and this is an issue that will be discussed in detail. The funding will become available to the when the President approves the 1991 federal budget. Chief Mankiller stated the plan is to develop a criminal code similar to the State of Oklahoma’s which would provide a common law to be administered and enforced by law enforcement officers. If the code is approved, it would establish the framework for a CN District Court under the Cherokee Nation Tribunal already established by the Constitution. The Tribunal has been informed of the developments and will notify the tribe of any concerns. A law enforcement sub-committee meeting has been scheduled to discuss the program in detail. Council members will be informed of new developments regarding the law enforcement system. The tribe has also discussed the development of a juvenile code and protective measures to ensure the health, safety and welfare needs of Cherokee youth. Cherokee Nation staff members are conducting an indepth study and will present their recommendations at a later time.
Emphasis added. See Minutes from the Regular Tribal Council Meeting at Book 3, Page 243 (October 22, 1990 at 6:30 p.m.). Twenty-two days later at the Tribal Council Meeting held on November 13, 1990, the second item of business was “An Act Relating to Establishing a Criminal Penal and Procedure Code for the Cherokee Nation/LA#10-90.” The Minutes reflect “Jim Wilcoxen, Tribal Attorney, presented the law which would provide procedures for crimes and punishments in tribal courts. The code is similar to the state laws applied to Indian country.” See Minutes from the Regular Tribal Council Meeting at Book 3, Page 247 (November 13, 1990 at 6:30 p.m.). The law’s passage was unanimous, Id.
Title 22 C.N.C.A. § 153 was one of the initial criminal statutes written and approved on November 13, 1990. As of today’s date, the statute has never been amended by the Tribal Council, nor has case law addressed the issue of its interpretation before the Court. The statute reads as follows:
§ 153. Absence from Nation, limitation does not run
If when the offense is committed the defendant be out of the Nation, the prosecution may be commenced within the term herein limited after his coming within the nation, and no time during which the defendant is not an inhabitant of or usually resident within the Nation, is part of the limitation.
Title 22 C.N.C.A. § 153.
The “state laws applied to Indian country” referenced by Mr. Wilcoxen in his address to Tribal Council on November 13, 1990 was the State of Oklahoma. Chief Mankiller explicitly stated the same in her October address before Tribal Council. See Minutes from the Regular Tribal Council Meeting at Book 3, Page 243 (October 22, 1990 at 6:30 p.m.). The State of Oklahoma has the following statute found in Title 22 of its Criminal Procedures code:
§ 153. Limitation Not Included When Defendant is Not Within the State
If when the offense is committed the defendant be out of State, the prosecution may be commenced within the term herein limited after his coming within the State, and no time during which the defendant is not an inhabitant of or usually resident within the State, is part of the limitation.
Title 22 O.S. § 153. A review of the Oklahoma statute reveals that it too has not undergone any amendments since its enanctment in 1910 and thus, remains unchanged since Cherokee Nation borrowed from the same in 1990 when Title 22 C.N.C.A. § 153 was signed into law.
It is well-defined rule of statutory construction that a court should interpret a statute based on its literal wording and the meaning of said words. However, if an ambiguity or conflict exists in applying the language as written in the statute, the court may review the statute’s legislative history. U.S. v. Oregon, 366 U.S. 643, 81 S. Ct. 1278, 6 L.Ed.2d 575 (1961). While the legislative record with respect to Section 153 of the C.N.C.A. does not address interpretation, it does explicitly provide us with the origin of the law.
Oklahoma’s Court of Criminal Appeals has explicitly dealt with the issue of Section 153’s interpretation of “out of the State” with highly detailed analysis. The Court has considered whether one’s absence from the State must be of the Defendant’s choosing, whether it is an absence if one is incarcerated in a facility outside out of the State, and if during the time the Defendant is incarcerated out of state, whether the Defendant still views the State attempting to prosecute as their state of residence. Traxler v. State, 1952 OK CR 162. Although Traxler is seventy years old, the facts of the said case and the facts presented to this Court by Mr. Shriver and his brother could not be more on their proverbial all fours. Thus, I adopt the interpretation, analysis, and reasoning set forth in Traxler and affirm the District Court’s holding.
All Citations
--- Am. Tribal Law ----, 2024 WL 1338338