Opinion:Hammer v. State, 2022 OK 80
Subject matter:McGirt
Date Decided:October 11, 2022
Trial Court:District Court of McIntosh County; Judge B. Bridges
Route to this Court:Appeal of trial court’s denial of motion to vacate a judgment. OKSCT retained (appears to be on its own motion). 
Facts:On January 24, 2020, the trial court entered an order terminating the father’s parental rights (the children’s Cherokee tribal affiliation was recognized in the case; the children’s address prior to removal from Father was listed within the boundaries of McIntosh County, Oklahoma; the trial court found that ICWA applied). This was a final, appealable order. The father did not appeal. On July 9, 2020, the U.S. Supreme Court decided McGirt, which held that Congress never disestablished the Creek Nation’s historial reservation. On January 26, 2021, Father filed a motion to vacate arguing for the first time that the trial court never acquired jurisdiction over the proceedings, and as such, the order termination Father’s rights was void ab initio. Father claimed that only an Indian tribe could exercise jurisdiction under ICWA because the children resided or were domiciled within the historic boundaries of the Creek reservation. The trial court denied Father’s motion as untimely and without merit and Father appealed. 
Standard of Review:The district court’s decision denying the motion to vacate comes to the Court clothed with a presumption of correctness. Every fact not disputed by the record must be regarded as supportive of the trial court’s ruling. The trial court’s denial of a motion to vacate is reviewed for abuse of discretion. 
Analysis:Father (who was pro se in the appeal but represented in the proceedings below) cited no specific ground authorizing the court to vacate the termination order, just referring to ICWA and McGirt and generally claiming that the district court lacked jurisdiction. In order for a judgment to be void, it must be demonstrably void on the face of the judgment roll; no extrinsic evidence is admissible to show the judgment is void. The record in this appeal includes the entirety of the court clerk’s file and no more; it includes all filings but no additional evidentiary material. Father cannot demonstrate that the original termination order is void. 

On procedural grounds, the district court did not abuse its discretion in refusing to vacate a facially valid judgment. Father failed to allege and prove any ground sufficient to vacate a final judgment. The defect in jurisdiction must be affirmatively shown on the face of the judgment roll; here, it is not. 
Vote:6-3. CONCUR: Darby, C.J., Kane, V.C.J. (by separate writing), Kauger, Winchester, Edmonson, Rowe, JJ. CONCUR IN RESULT: Combs (by separate writing), Gurich, and Kuehn, JJ.
Other: V.C.J. Kane writes separately to more specifically analyze whether subject matter jurisdiction or personal jurisdiction was at issue in the case. J. Combs writes to assert that the majority, instead of deciding the case on procedural grounds, should have analyzed the jurisdictional argument of whether ICWA deprives the state court of jurisdiction over these child custody proceedings such that its judgments should be vacated. J. Combs points out that after McGirt and before Father lodged his appeal, Oklahoma and the two tribes involved in this case executed intergovernmental agreements regarding ICWA jurisdiction and agreed that the State of Oklahoma and the tribes, with some exceptions, shall share concurrent jurisdiction over any Indian child domiciled within the reservation and that the agreements expressly apply retroactively in most cases. Thus, both tribes have agreed to continue business as usual despite McGirt and not to use McGirt to disrupt any finalized proceedings.