Opinion

State v. Brooks

  • 763 P.2d 707
  • 1988 OK CR 239
  • 1988 Okla. Crim. App. LEXIS 267
  • 1988 WL 111955
Court
Court of Criminal Appeals of Oklahoma
Filed
Oct 14, 1988
Status
Published
Author
Bussey
On the bench
Brett, Parks, Bussey
Cited by
3 cases
Authority
More cited than 12.8%

The opinion

BUSSEY, Judge,

dissenting:

I dissent. Even if the Creek allotment in this case were Indian Country, c.f Ex parte Nowabbi, 60 Okl.Cr. 111 , 61 P.2d 1139 (1936), 1 I do not believe that the defendants in this ease are entitled to any consideration for immunity from prosecution. They are Delaware Indians who leased a Creek Tribal allotment to operate a public business. The Supreme Court has determined that Indians who reside on a reservation but are not enrolled in the governing Tribe are not immune from taxation by the States. Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 161 , 100 S.Ct. 2069 , 65 L.Ed.2d 10 (1980). If Indians in that situation are not immune from direct taxation by the State, I perceive no basis to consider immunity for these defendants who are not enrolled as members of the Creek Tribe. Furthermore, the State is not even trying to collect taxes from Indians. Rather, it is simply attempting to enforce its right to review records which .it may require Indians to keep, even if those Indians are immune from taxation. Ibid.

The majority holds that, “Because the charges in this case did not relate specifically to appellees’ cigarette sales to non-Indians or off-reservation Indians, and thus did not meet the United States Supreme Court prerequisite to the exercise of state tax authority over Indians on Indian land,” (emphasis added) the State lacked *711 jurisdiction. Aside from the fact that the Supreme Court has not announced the “prerequisite” on which this holding turns, the defendants in this case could not have claimed immunity from prosecution in any event. The information filed in this case recited sufficient facts to state a crime under Oklahoma law, and I would reverse the decision of the District Court.

. The Oklahoma Supreme Court has disapproved and withdrawn .his case in part. State ex rel. May v. Seneca-Cayuga Tribe of Oklahoma, 711 P.2d 77 (Okla.1985). To the extent that Nowabbi may be construed to prevent lands in what was formerly Indian Territory which were allotted to tribes other than the Five Civilized Tribes from coming within the federal definition of Indian Country, I agree that the opinion was overly broad. However, this case involves land allotted to the Creek Tribe, which was among the Five Civilized Tribes.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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