The opinion
HARGRAVE, Chief Justice,
joined by OPALA, Vice Chief Justice, HODGES and SIMMS, Justices, dissenting:
The majority opinion refuses to apply Oklahoma law to land once owned by an Indian, now deeded to the appellee after the restrictions were removed. Once restrictions are removed from land held by an Indian, that property is subject to the laws of this state just as any other citizen’s property. Sperry Oil & Gas Co. v. Chisholm, 264 U.S. 488 , 44 S.Ct. 372 , 68 L.Ed. 803 (1923). To re-impose these restrictions for what amounts to equitable reasons as the Court has done by borrowing from criminal law’s definition of Indian Country is a gratuitous step which casts a cloud, potentially, on all land ever released from restrictions. That this uncertainty cannot be resolved by a search of the record chain of title indicates the magnitude of the problem introduced by this opinion.
In Sperry Oil & Gas Co. v. Chisholm, supra, the Supreme Court of the United States held, in a case arising from Oklahoma, that a lease of the homestead was valid even though the wife did not execute it because the land was restricted and the lease was approved by the Secretary of the Interior. The lease covered a surplus allotment also. As to the surplus allotment, the Court said:
... All restrictions upon this land had been removed by the Act of 1908. When the extension lease was executed there was no limitation under the acts of Congress upon Chisholm’s right to alienate, encumber, or lease this tract. It has *1105 become in all respects subject to his control, under the laws of the state, just as the property of other citizens. Jefferson v. Winkler, 26 Okla. 653, 664 , 110 Pac. 755 (1910). All questions pertaining to its disposal fell under the scope and operation of those laws. Dickson v. Luck Land Co., 242 U.S. 371, 375 , 61 L.ed. 371, 37 Sup.Ct.Rep. 167 [169]. (emphasis added)
See Billy v. LeFlore County Gas & Electric, 190 Okl. 88 , 120 P.2d 774, at 779 (1941).
The necessary and initial criterion to determine whether this place had ceased to be Indian Country is whether the Indian title had or had not been extinguished. Townsend v. United States, 265 F. 519 (1920), citing: United States v. Pelican, 232 U.S. 442, at 449 , 34 S.Ct. 396, at 399 , 58 L.Ed. 676 (1914); Donnelly v. United States, 228 U.S. 243, at 269 , 33 S.Ct. 449, at 458 , 57 L.Ed. 820 , Ann.Cas. 1913E, 710 (1913); United States v. Celestine, 215 U.S. 278, at 285 , 30 S.Ct. 93, at 94 , 54 L.Ed. 195 (1909); Dick v. United States, 208 U.S. 340, at 352 , 28 S.Ct. 399, at 402 , 52 L.Ed. 520 (1908); Ex parte Crow Dog, 109 U.S. 556, at 561 , 3 S.Ct. 396, at 399 , 27 L.Ed. 1030 (1883); Bates v. Clark, 95 U.S. 204, at 208 , 24 L.Ed. 471 (1877). These citations are brought up to date by noting the more recent case of Mescalero Apache Tribe v. Jones, 411 U.S. 145 , 93 S.Ct. 1267 , 36 L.Ed.2d 114 (1973). Therein the United States Supreme Court held that land leased to the tribe located outside the boundaries of a reservation and leased from the United States Forest Service for a term of thirty years was NOT Indian Country.
The citation in the majority opinion of United States v. Pelican, supra, for the definition of Indian Country is instructional. United States v. Pelican’s issue revolved around the question of whether land owned in severalty by an Indian under restriction was Indian Country just as if it had been owned in common by the tribe. The following illustrative quotes are from 232 U.S. at 447 , 34 S.Ct. at 398 :
Although the lands were alloted in sever-alty, they were to be held in trust by the United States for twenty-five years for the sole use and benefit of the allottee, or his heirs, and during this period were to be inalienable. That the lands, being so held, continued to be under the jurisdiction and control of Congress for all governmental purposes relating to the guardianship and protection of the Indians, is not open to controversy, (citations omitted)
and 232 U.S. at 449 , 34 S.Ct. at 399 :
... In the present case, the original reservation was Indian country simply because it had been validly set apart for the use of the Indians as such, under the superintendence of the government. Donnelly v. United States, 228 U.S. 243, 271, 272 , 57 L.ed. 820, 832, 33 Sup.Ct. Rep. 449 [458, 459], Ann.Cas. 1913E, 710. The same considerations, in substance, apply to the allotted lands which, when the reservation was diminished, were excepted from the portion restored to the public domain. The allottees were permitted to enjoy a more secure tenure, and provision was made for their ultimate ownership without restrictions. But, meanwhile, the lands remained Indian lands, set apart for Indians under governmental care; and we are unable to find ground for the conclusion that they became other than Indian country through the distribution into separate holdings, the government retaining control.
A vain search has been made for authority transplanting the definition of Indian Country found in 18 U.S.C. § 1151 into the civil law of real property, as opposed to taxation. The local authority relied upon for transplantation of the Indian Country concept is Ahboah v. Housing Authority of Kiowa Tribe, 660 P.2d 625 (1983). Therein this Court said although 18 U.S.C. § 1151 ostensibly applies only to issues of criminal jurisdiction, the United States has recognized its general applicability to questions of civil jurisdiction. The statement is broader than the fact. It has been utilized, as far as can be told, in taxation and criminal jurisdictional settings, and they generally have some relation to reservation sta *1106 tus. The cases cited in Ahboah v. Housing Authority of Kiowa Tribe, supra, for this supposition are: Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463 , 96 S.Ct. 1634 , 48 L.Ed.2d 96 (1976); DeCoteau v. District County Court, 420 U.S. 425 , 95 S.Ct. 1082 , 43 L.Ed.2d 300 , N. 2 (1975); McClanahan v. Arizona Tax Commission, 411 U.S. 164 , 93 S.Ct. 1257 , 36 L.Ed.2d 129 , N. 17 (1973). These cases all deal with actual reservation issues. Moe v. Confederated Salish & Kootenai Tribes, supra, states that state tax laws taxing Indians producing income residing on an Indian reservation are not authorized whether the Indian holds by patent within a reservation or resides on land held in trust for the tribe. DeCoteau v. District County Court, supra, held South Dakota state courts have civil and criminal jurisdiction over tribal members on non-Indian unallot-ed lands within the reservation’s 1876 borders. The third case cited in Ahboah v. Housing Authority of Kiowa Tribe, supra, is McClanahan v. Arizona Tax Commission, supra. The case also dealt exclusively with the question of state tax on income as applied to reservation Indians with respect to income derived wholly from reservation sources. This case does state that generally state laws do not apply to tribal Indians on Indian reservations. Indian Country analysis is then properly applicable only to land held by Indians or by the government for the use and benefit of Indians, as expressed below in the quotation from Alaska ex rel. Yukon Flats School District v. Native Village of Venetie, 856 F.2d 1384 (9th Cir.1988). The majority relies upon U.S. v. Mazurie, 419 U.S. 544 at 555 , 95 S.Ct. 710 at 716 . At p. 555, 95 S.Ct. at p. 716 the Court’s holding appears thusly: “We hold that neither the Constitution nor our previous cases leave any room for doubt that Congress possesses the authority to regulate the distribution of alcoholic beverages by establishments such as the Blue Bell.” -The facts of the case, and also the law applicable to those facts differ from the issue this Court now faces. The case is a prosecution for selling liquor within an Indian reservation without a liquor permit from the tribe, and after such a permit had been denied subsequent to a hearing and protest from tribal members. The law applicable is also dissimilar to the case before this Court as demonstrated by the Court’s quotation of 18 U.S.C. § 1151 (a) as follows:
“(a) All land unthin the' limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including right-of-way running through the reservation ...” (emphasis added)
Without belaboring the point, it is necessary to note that the land involved in this action is not alleged to be, nor is it, within an Indian reservation. The Mazurie case is bottomed on the reservation provision of § 1151(a), and upon the exception for fee-patented lands in non-Indian communities on reservations as that exception is used in 18 U.S.C. § 1154 (c). The true significance of the case is that the owner of a saloon (holding a license to do business from the State) located inside reservation boundries may be prosecuted when it continues to do business after tribal authorities have denied the owner’s application for a tribal license to sell alcoholic beverages on the reservation.
The majority opinion also cites Alaska ex rel. Yukon Flats School District v. Native Village of Venetie, supra, for the proposition that “Indian Country” as a term applies to both civil and criminal jurisdiction. This may be so, but the citation does not aid the majority in determining that Indian Country need be neither on a reservation, nor owned by an Indian. The land under question in Venetie was owned by the tribe, furthermore in that opinion we find the following:
... Appellants concede that their land is not a reservation, and they make no claim to an allotment. Rather, they argue that either Native Village or Venetie is a dependent Indian community.
The term “dependent Indian community” was included in § 1151 in response to the Supreme Court’s opinions in United States v. Sandoval, 231 U.S. 28 , 34 S.Ct. 1 , 58 L.Ed. 107 (1913), and United States *1107 v. McGowan, 302 U.S. 535 , 58 S.Ct. 286 , 82 L.Ed. 410 (1937). See Reviser’s Note, 1948 Act, 18 U.S.C.A. § 1151 (1984). In those cases, the Court held that the non-reservation Indian communities in question were sufficiently similar to reservation Indian communities to be included within the meaning of Indian country. The decisions turned on the dependent nature of the communities and federal government’s role as regulator and protector of those communities. See Sandoval, 231 U.S. at 48 , 34 S.Ct. at 6 ; McGowan, 302 U.S. at 537-39 , 58 S.Ct. at 287-88 . In one case, the community land was owned in fee simple by the Tribe, see Sandoval, 231 U.S. at 48 , 34 S.Ct. at 6 , and in the other case, title was held by the federal government....
The most recent exposition of the basis for the objection to the majority opinion arises from a quotation from State ex rel. May v. Seneca Cayuga Tribe, 711 P.2d 77, at 85 (Okl.1985), as follows. “Generally speaking, states have authority over non-Indians in Indian Country unless there is a conflict with federal law. States may also exercise authority over Indians and their activities outside Indian Country ... a continuing body of case law indicates that the areas of sanctioned state jurisdiction are growing ...” (footnotes omitted).
Against this backdrop, the two tests currently used to question state jurisdiction are infringement upon tribal self-government and preemption by federal action. There is no basis for finding preemption in the present case, as we are dealing with land held neither in a restricted manner nor by an Indian. As noted above, state law has always controlled unrestricted land not held in Indian hands. Secondly, no basis can be discerned for holding state law applicable to non-Indian held land on the basis that it is an infringement on tribal self-government.
It is a particularly anomalous result to hold state forcible entry and detainer law does not apply to land not owned by an Indian. Federal preemption is difficult to demonstrate in this area. Had the land been owned by an Indian under restriction, and mortgaged, the mortgage could be foreclosed utilizing state law under the provisions of 25 U.S.C. § 491 (1982). Consequently no preemption can be demonstrated in the area of enforcing payment for habitation furnished.
The majority opinion notes that both parties agree that United States v. South Dakota, 665 F.2d. 837 (8th Cir.1981) cert. denied, 459 U.S. 823 , 103 S.Ct. 52 , 74 L.Ed.2d 58 (1982), establishes the prevailing view of the definition of dependent Indian community, so as to establish this property as Indian Country. It should be noted that in the first part of that opinion discussing the facts of the case is a subheading entitled “Title to the Land”. There it is stated, “... The land eventually came into possession of St. Peter’s Church of Sisseton, South Dakota, which transferred it to the United States in trust for the Sisseton-Wahpeton Sioux Tribe by warranty deed ...” (emphasis added). The first inquiry by the Court was a determination that the land was held in trust by the United States for the benefit of an Indian tribe. After that determination it is apparent that the land could be correctly determined Indian Country under 18 U.S.C. § 1151 (b) as a dependent Indian community. Thus United States v. South Dakota, supra, differs on its facts in a material sense from the case at bar. As authority for holding the land in this cause Indian Country, United States v. Martine, 442 F.2d. 1022 (10th Cir.1971), is similarly flawed. In discussing jurisdiction under § 1151, supra, (in this manslaughter case) the Court said at p. 1023: “The particular place where the accident took place was neither on an Indian reservation nor on an allotment. It was in an area known as the Ramah community and on land owned by the Navajo Tribe, it having been purchased with tribal funds from a corporate owner. Jurisdiction therefore rests on the claim that the area in question is a dependent Indian community.” (emphasis added). In the case at bar the title to this land was in a state agency, The Housing Authority of the Seminole Nation. That fact should be fatal to any holding that the land in question is Indian Country. The fact that the *1108 appellant retained some of her land in her restricted status does not affect state jurisdiction over that portion not restricted. See Chisholm, supra. The fact that this creates a checkerboard jurisdictional problem has been recognized and determined to be a necessary result of proper legal analysis has been noted and discussed in this Court’s opinion in the case of State ex rel. May v. Seneca-Cayuga Tribe, supra.
In accordance with the views herein expressed, I must respectfully dissent.