The opinion
LANE, Vice Presiding Judge,
dissenting:
I dissent because 63 O.S.1981, § 1057 is designed for the benefit of Indian tribes and not for the purpose of bringing Indians under state jurisdiction when they would not otherwise be so. The statute is drafted to comply with the Department of Health and Urban Development (HUD) regulations to fund housing for low-income tribal families. The peculiar nature of the statute is that it provides the only way for the tribes to obtain the federal funds.
It has long been known that Congress has plenary power over Indians and Indian activities by virtue of the Indian commerce clause and supremacy clause of the United States Constitution. States may exercise authority over Indian Country only with the explicit consent of Congress. C.M.G. v. State of Oklahoma, 594 P.2d 798, 799 (Okl. Cr.1979) cert. denied, 444 U.S. 992 , 100 S.Ct. 524 , 62 L.Ed.2d 421 (1979); Ahboah v. Housing Authority of Kiowa Tribe, 660 P.2d 625, 629 (Okl.1983); State v. Littlechief 573 P.2d 263, 264 (Okl.Cr.1978).
An Indian Housing Authority is defined as follows:
A public nonprofit corporation established by state law to undertake a program of low rent/mutual help housing for low-income families of the tribal community. The Indian Housing Authority acts as a separate entity that should work closely with tribal, BIA or other community improvement organizations involved in providing better housing for low-income families, eliminating substandard housing and uplifting and encouraging self-improvement of the tribal community’s low-income families. An Indian Housing Authority operates under a financial assistance contract (ACC) with the Department of Housing and Urban Development, a federal agency, and works closely with the Tribal Governing Body in the planning and development of the Housing program. (O.R. 34). Also, see 24 C.F.R. § 905.101 et seq. (1988).
63 O.S.1981, § 1057 applies exclusively to the creation of Indian Housing Authorities and is separate and distinct from the statute creating non-Indian housing authorities. The sole beneficiaries of § 1057 are Indians. The statute was created pursuant to the federal HUD guidelines which sets forth in detail the procedures to qualify the housing authority for HUD funding. The Housing Authority is an extension of the tribe because the power of the housing authority is vested in the tribe. The state statute specifies that the authority shall not transact any business nor exercise powers without the tribe formally requesting such. The tribal chief or governing head of the tribe is authorized to exercise all appointing and other powers with respect to the housing authority.
The principle test for Indian country is taken from United States v. Pelican, 232 U.S. 442 , 34 S.Ct. 396 , 58 L.Ed. 676 (1914), and is whether the land in question “had been validly set apart for the use of the *1064 Indians as such, under the superintendence of the Government.” Id. at 449 , 34 S.Ct. at 399 ; 302 U.S. at 439, 58 S.Ct. at 288. Applying the Pelican test to the instant case, the housing project qualifies as Indian country for the following reasons. The Housing Authority project was federally funded by HUD. Funding included purchase of the land, construction of the houses, and putting in the utility lines. The Indian Health Services used federal funds for putting in the water mains and the sewer system and tied the system into the City of Pawhuska’s main sewer and water lines.
Congress provided the framework and the funding for the purpose of protection of a dependent people by providing homes for needy Indian people. The language of the state statute indicates the Indian tribes are to be the primary beneficiaries of the statute. The agreement between the Housing Authority and HUD requires the Osage Tribal members be given first preference as applicants for homes and members of other Indian tribes be given second preference and only then can the homes be made available to non-Indians. Approximately 90% of the people who have homes in the housing addition are Indian.
The majority asserts that because “the Housing Authority is subject to state jurisdiction, land owned by the Authority is also subject to state jurisdiction.” The majority incorrectly relies on Housing Authority of Choctaw Nation v. Craytor, 600 P.2d 314 , (Okl.1979) as authority for asserting state jurisdiction based on the state agency relationship. The majority is misreading Cray-tor. Craytor stands for the proposition that Housing Authority matters, such as the selection of commissioners, are governed by state jurisdiction because the Housing Authority derived its power to appoint commissioners from the state. Whether the land is Indian country is not a Housing Authority matter, and in no way may the statute extend to encompass criminal jurisdiction occurring within Indian country. Subject matter jurisdiction over the criminal act of murder is clearly preempted by federal statutes, §§ 1151 and 1153.
The majority points to the fact that the state and city have provided all essential services. Federal law requires that HUD projects reach cooperation agreements with local governments to obtain the basic governmental services to maintain the project. United States v. South Dakota, 665 F.2d 837, 840 (8th Cir.1981) cert. denied, 459 U.S. 823 , 103 S.Ct. 52 , 74 L.Ed.2d 58 (1982). Reimbursement for these services are made through payments in lieu of taxes (PILOT). Id. Services provided by the City of Pawhuska are provided under such a cooperation agreement. Additionally, even though the Indian children attend public schools, the Johnson O’Malley Act federal funds are used for the purpose of schooling the Indians that are involved in that particular area.
For the above reasons, the land in question owned by the Housing Authority of the Osage Tribe of Indians in Oklahoma meets the definition of a dependent Indian community and the State of Oklahoma has no jurisdiction over crimes committed there.