STATE v. WARD

¶2OPINION

¶3LEWIS, JUDGE:

¶4¶1 The State of Oklahoma, Appellant, appeals from an order sustaining Appellee's motion to dismiss a charge of assault and battery on a police officer filed in the District Court of Mayes County, Case No. CF-2019-295. The trial court held an evidentiary hearing on Appellee's motion to dismiss, and, relying on McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), and Hogner v. State, , , concluded that Oklahoma lacked jurisdiction to prosecute this non-Indian Appellee because the deputy sheriff whom Appellee allegedly assaulted and battered during his arrest was an Indian, and the crime occurred within Indian Country, i.e., the Cherokee Reservation. See 18 U.S.C., §§ 1151-1153.

¶5¶2 The State timely sought review of the ruling as an order quashing or setting aside the information appealable by 22 O.S.2021, section 1053(1), or a question of law reserved under 22 O.S.2021, section 1053(3). Appellee moved to dismiss the appeal, arguing the State could not appeal the trial court's order. On July 21, 2021, this Court denied Appellee's motion "without deciding whether the appeal is appropriate under Section 1053(1)," finding the order was at least appealable as a reserved question of law under section 1053(3).

¶6¶3 We now hold as a preliminary matter that the ruling appealed was based on facts beyond the face of the information (the Indian status of the officer), and therefore was one quashing the information rather than sustaining a demurrer. See State v. Klindt, , ¶ 11, , 404 (citing State v. Durham, , (overruled on other grounds in State v. Hammond, , ¶ 6, , 828)) (holding State could appeal from trial court's dismissal for lack of jurisdiction in Indian Country and, depending on resolution of defendant's Indian status, proceed to trial on remand). We allow the appeal under section 1053(1).

¶7¶4 The substantive question is whether the trial court, applying McGirt and Hogner (our post-McGirt case recognizing the continued existence of the Cherokee Reservation), erred in dismissing this charge of assault and battery on an officer for lack of state criminal jurisdiction. While this appeal was pending, the United States Supreme Court, in Oklahoma v. Castro-Huerta, 142 S.Ct. 2486 (2022), held that Oklahoma and the United States possessed concurrent jurisdiction to prosecute a non-Indian defendant for child neglect committed against an Indian child in Indian Country. See id., 142 S.Ct. at 2504-05.

¶8¶5 The Supreme Court held that States have jurisdiction to prosecute crimes committed in Indian Country unless pre-empted by federal law; and that neither the General Crimes Act, 18 U.S.C. § 1152, nor Public Law 280, 67 Stat. 588, have pre-empted Oklahoma's concurrent jurisdiction to prosecute non-Indians for crimes against Indians in Indian Country. Castro-Huerta, 142 S.Ct. at 2494, 2500. The Court reasoned that the reservations recognized as Indian Country in McGirt and our post-McGirt cases remain part of Oklahoma, rather than separate territories or federal enclaves; and that these federal statutes have not vested the United States with exclusive jurisdiction to prosecute non-Indians for crimes on the reservations. Castro-Huerta, 142 S.Ct. at 2502-03.

¶9¶6 The Supreme Court recognized that Oklahoma retained a strong interest in public safety and criminal justice, including an interest in protecting both Indian and non-Indian residents from crimes on the reservations. Id., 142 S.Ct. at 2501-02. Based on Castro-Huerta, we conclude that the State of Oklahoma has jurisdiction to prosecute the Appellee. The order of dismissal is reversed, and the case is remanded for further criminal proceedings. Klindt, , ¶ 11, 782 P.2d at 404; Durham, , ¶ 19, 545 P.2d at 811.

¶10DECISION

¶7 The order quashing and dismissing the information is REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2022), the MANDATE is ORDERED issued upon delivery and filing of this decision.

¶11

¶12APPEAL FROM THE DISTRICT COURT OF MAYES COUNTY
THE HONORABLE REBECCA GORE, ASSOC. DISTRICT JUDGE

¶19

¶20OPINION BY: LEWIS, J.
ROWLAND, P.J.: Concur
HUDSON, V.P.J.: Concur
LUMPKIN, J.: Concur
MUSSEMAN, J.: Concur