Opposition Brief — Patrick Joseph Terry, Petitioner v. Oklahoma

Case No. 18-8801

IN THE SUPREME COURT OF THE UNITED STATES

|

PATRICK JOSEPH TERRY,

Petitioner,

v.

STATE OF OKLAHOMA,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

MIKE HUNTER

ATTORNEY GENERAL OF OKLAHOMA

*MITHUN MANSINGHANI

SOLICITOR GENERAL

313 NE 21* Street

Oklahoma City, Oklahoma 73105

(405) 521-3921

(405) 522-4534 FAX

mithun.mansinghani@oag.ok.gov

ATTORNEYS FOR RESPONDENT

*Counsel of Record

August 5, 2018

QUESTIONS PRESENTED

Whether the State of Oklahoma had jurisdiction to convict Petitioner for crimes he

allegedly committed within the 1867 reservation boundaries of the Ottawa Tribe of

Oklahoma.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ....... 0... ccc cece cece ee eee e eee ne eees i

STATEMENT OF THE CASE ..!.......0cc ccc cceeeeeeeeeeeeeeeeeannes 1

CASE BACKGROUND ....... ccc ccc cc ccc cece eee teen tent ee aeeee 12

REASONS FOR DENYING THE WRIT ... 2... .. cece cece eee eee cece eens

I. The decision below rests on independent and

adequate state grounds ........... ccc cece cece eee enees 14

Il. This Case is a Poor Vehicle to Address the Question

Presented ... ccc cece ccc cece eee eee e eee eee eeees 16

Ill. Petitioner’s Argument Fails On The Merits .......... 18

IV. Ataminimum, this Court should first decide Murphy

before disposing of this Petition ....................000. 20

CONCLUSION 2.2... ccc ccc cece eee eee eee eee ence nee eneeees 23

il

TABLE OF AUTHORITIES

FEDERAL CASES

Alaska v. Native Village of Venetie Tribal Gov't,

| B22 U.S. 520 (1998) 0... ccccccessssccsssscreessessssseees lanascccececcecssssscssccccscesssssssscesaness 22

Coleman v. Thompson,

BOL U.S. 722 (1991) .........ccssccssscessssscsstccscsssccssssssssessnssssscsscssssnssssssesssessssssssensess 15

Cutter v. Wilkinson,

544 U.S. 709 (2005) .........ccssccssccccessssscnssnesessscsssssccsssnnssscesssssssssssssssescessessssseanes 17

DeCoteau v. Dist. Cty. Court for Tenth Judicial Dist.,

420 U.S. 42.5 (1975) .......scssscccsseccccssssscssncsccsesssessssssnscsssccssesssssssssssssssssccssssensasoase 3

Hagen v. Utah,

510 U.S. 399 (1994) .........ccccssssssessscscecccsesscscesssnssnescessssscessseoesessesssenseees 18,19

Hayes Township, Michigan v. Midwest Regional Director,

36 TIBIA 308 (2001) ..........cccsssssccreccscesssssscssscesscsssssssssssscscesscessnssssssannascesens 11, 20

In re Kansas Indians,

72. U.S. 737 (1866) .........sccccssssccecsssscsessescnssssssesssceccssesssssssessseseesssssssassesesseeeeeess 3

Jefferson v. Fink,

247 U.S. 288 (1918) .........sccccccsssccccssssssscccessnscescsssesesssscesesssecsscsscesessssenssscessenes 6, 7

McCullagh v. Allen,

10 Kan. 150 (Kan. Sup. Ct. 1872) .....cccsscscsssssscscsssssssccscsssnccessessnscescsssncesssssezes 3

Menominee Tribe of Indians v. United States,

391 U.S. 404 (1968)... eccseccccssnsnstccesessessssscsnsssnccssccsssssssssasesseseescessssescessesons 2

Michigan v. Long,

463 U.S. 1032 (1983) .........cccsccccscssscssessssscnscescsssssescesessssssssssssassssessssasscessssserees 15

Morton v. Mancari,

417 U.S. 535 (1974) .....cccccscscsrsccssssscsccscsscsscessesssssssscscssssssssssssssesscesscccsssssseeeeseens 9

Murphy v. Royal,

866 F.3d 1164 (LOth Cir. 2017) 0... eccccsssssssssccresccccsssssssscescesessnssssessneres 15, 16

Murphy v. Royal,

875 F.3d 896 (LOth Cir. 2017) ......cccssssssssesssssscccccssssssscscssecessssssssnsees 13, 14

Ottawa Tribe of Oklahoma v. Logan,

577 F.3d 634 (Gth Cir. 2009) ..........sscccscssssceccssssesesssssssccsssscsscessssssseresessoans 1,2

Ottawa Tribe of Oklahoma v. Ohio Dep’t of Nat.,

Res., 541 F. Supp. 2d 971 (N.D. Ohio 2ZOOB) ....cersscsrsccsscssccerssesscsssssssessesessssees 2

Rosebud Sioux Tribe v. Kneip,

430 U.S. 584 (1977) ...cccccssscessssssescccssnsssssssscncsncccessssssssssssceccsssscessssssssasees 1, 18, 19

Solem v. Bartlett,

AG5 U.S. 463 (1984) .......ccccccccsssssssssssesscsssssesessessesssessssessesecseceeseeeesscassessseessssenses 20

South Dakota v. Yankton Sioux Tribe,

522 U.S. 329 (1998) .....ccccosssssssssscsscccccccnecsencceceesccccsenancesssccececcesecssscsscssessessesenees 18

Stephens v. Cherokee Nation,

174 U.S. 445 (1899) .......ccccsssscccsscrcccccsccsssssssessessesssssssssnssnnansesscsssssssseccesensesenees 6

Terry v. Oklahoma,

135 S. Ct. 2053, 191 L. Ed. 2d 958 (2015) .......eccccssssessssssrsecsssnssesssssncesessees 12

Wiggan v. Connolly,

163 U.S. 56 (1896) ..........sccssscessssscsscessccseecessessecssssssscesessssoceesssesssssssessnscssecesssenes 5

Williams v. City of Chicago,

242 U.S. 434 (1917) .0.....cccccssccsccsssscsssssessscesccesssssssnssscscsssesesssssnesscssssssssessessnsscnees 1

Woodward v. de Graffenried,

238 U.S. 284 (1915) ........cccccssseccccssssssscencescessecsssssessssssesscessssssssssnessssssssssesssasseees 6

STATE CASES

Russell v. Cherokee County District Court,

438 P.2d 293 (Okla. Crim. App. 1968)..........cccccccscsssssssessssssscesssssssesesseenseees 15

Terry v. State,

334 P.3d 953 (Okla. Crim. App. 2014)........ccscsscsssssecssssnsssssssssssscsssseeees 12,13

iv

FEDERAL STATUTES

18 U.S.C. § 1152 .......sscscscccsssncrscsscssssesecsssnsecesesessscssesscsccesssssscesessssscnsessssssceseecesensnsesenens 18

18 U.S.C. § 1153(a) ....cccsccccssscsdescssssesssevscnsesevscscesssceesssssesessseseesesceessnessssscscssssseesnees 16

25 U.S.C.A., § 2719(a)....cscsccscnrssscsseccsssecessssesessssessssssssessesnensssssesssessnscescssccessssseeees 11,19

Okla. Const. Art. VII, § 7 .......ccccccssccssssssnssscccsccccccccssssessecesccsonecassssssccssecoessesesceses 14,15

Okla. Stat. tit. 22 § 1086.........csccssccccsssssscscseccsscssscesesscssesesesccsonsesssessssessesenseses 14, 15

REGULATIONS

Liquor Control Ordinance of the Ottawa Tribe of Oklahoma,

June 16, 2006, 71 Fed. Reg. 34958.........scccsccsnsscssssscscsrscrrsrsscsscccesscsssscsescens 18

STATEMENT

This Court should deny this Petition. The history of the Ottawa Tribe

demonstrates that it no longer has a reservation in Oklahoma and criminal

jurisdiction over the land in question lies with the courts of the State of Oklahoma.

In any case, this Petition presents a poor vehicle to answer the question presented

because there is insufficient evidence in the record to show that Petitioner is Native

American or that the crime occurred within the historical boundaries of the Ottawa

Tribe. There are also independent and adequate state grounds to uphold Petitioner’s

conviction. Finally, assuming this Court is not inclined to deny this Petition outright,

the Court should at least stay consideration of the Petition until a decision is rendered

in Sharp v. Murphy, No. 17-1107, which presents the question of whether another

tribe has an existing reservation in Oklahoma.

History of the Ottawa Tribe of Oklahoma.

At the turn of the nineteenth century, the Ottawa Tribe “resided on land in

[present-day Ohio] reserved to them in the Treaty of Greenville, [Treaty of August 3,

1795, 7 Stat. 51], but through a series of subsequent treaties ... ceded that land to the

United States.” Ottawa Tribe of Oklahoma v. Logan, 577 F.3d 634, 637 (6th Cir. 2009)

(citing Williams v. City of Chicago, 242 U.S. 434, 436-37 (1917)). The United States

desire for these subsequent treaties, and land, was spurred by the “familiar forces” of

westward expansion and the need to make way for white settlers. Rosebud Sioux

Tribe v. Kneip, 430 U.S. 584, 590 (1977). To this end, rather than entering into

treaties with Indian tribes wherein the tribes reserved to themselves a portion of

their aboriginal land, the federal government adopted a policy of removing Indians to

the west of the Mississippi River after the enactment of the Indian Removal Act in

1830. See, e.g., Menominee Tribe of Indians v. United States, 391 US 404, 411 n.12

(1968).

Soon thereafter “Ottawa chiefs signed the Treaty of 1831 [Treaty of August 30,

1831, 7 Stat. 359] relinquishing all land previously held in Ohio” and in exchange

“were granted a land reservation in [present-day] Kansas.” Ottawa Tribe of

Oklahoma v. Ohio Dep't of Nat. Res., 541 F. Supp. 2d 971, 973-74 (N.D. Ohio

2008), aff'd, sub nom. Ottawa Tribe of Oklahoma v. Logan, 577 F.3d 634 (6th Cir.

2009). The United States promised the Ottawas this land “to them and their heirs for

ever, as long as they shall exist as a nation, and remain upon the same,” and the land

will “never be within the bounds of any State or territory” and they will be free from

“all interruption or disturbance from any other tribe or nation of Indians and from

any other person or persons whatsoever.” Arts. 3, 9, 7 Stat. 359. The United States

promised to “defray the expense of the removal” and “supply them with a sufficiency

of good and wholesome provisions to support them for one year after their arrival at

their new residence.” Id. at Art. 4. Tragically, “[d]uring the seven hundred mile

journey to Kansas, nearly half of the roughly three-hundred Ottawas died from

hunger and disease.” Ottawa Tribe, 541 F. Supp. 2d at 974.

Upon arriving in Kansas, the Ottawa Tribe transitioned from hunting and

fishing to farming. Id. at 974. But even this uneasy transition would not last. Nor

would the promises contained in the Treaty of 1831, for the forces of westward

expansion never waned and land containing the Ottawa reservation was being eyed

for a new State of the Union, the State of Kansas. See In re Kansas Indians, 72 U.S.

737, 768-54 (1866). By the 1860s, the federal government began moving from a

removal policy to that of allotment and assimilation. See DeCoteau v. Dist. Cty. Court

for Tenth Judicial Dist., 420 U.S. 425, 432 (1975). And the Ottawas found themselves

in the direct line of this policy shift as well. In 1862, while the country was in the

throes of the Civil War, the Ottawa Tribe entered into a treaty with the United States

in which their reservation would be divided into 80-acre tracts to be allotted to

members of the Tribe with the remainder to be sold to white settlers. The proceeds of

the sale would go to tribal members. Treaty of June 24, 1862, 12 Stat. 1237 (1862

Treaty).

“In this treaty there is no express repeal of the agreement that the lands should

not become a part of the state, but the whole tenor of the treaty is to that effect.”

McCullagh v. Allen, 10 Kan. 150, 155 (Kan. Sup. Ct. 1872). After five years, the

United States would transfer the land patent to the Indian allottee, the Indian would

become a citizen of the United States, and their “relations with the United States as

an Indian tribe [would] be dissolved and terminated.” Art. 1, Treaty of June 24, 1862,

12 Stat. 1237 (1862 Treaty).

The first article of the treaty of 1862 summed up the attitude of the time: the

federal government proclaimed that the Ottawas could make this transition because

they “h[ad] become sufficiently advanced in civilization.” Jd. But as the five-year

mark approached, the federal government felt that while “portions of [Ottawas]

desire to dissolve their tribal relations, and become citizens” other “portions ... should

be enabled to remove to other lands in the Indian country south of [Kansas].” Act of

| February 23, 1867, 15 Stat. 513 (1867 Treaty). |

The United States bought a small piece of the Shawnee reservation in the Indian

Territory, and paid for it “from the funds in the hands of the Government arising from

the sale of the Ottawa trust-lands [in Kansas],” as provided in Article 9 of the 1862

Treaty. The remainder of the tribal fund was to be divided among each tribal member.

Id. at Art. 16. The provision of the 1862 Treaty whereby the Ottawas would become

citizens was extended for two years, although an individual member could elect to

become a citizen and “be disconnected with the tribe” before then. Id. at Art. 17. But

those making that election would have to take their portion of the tribal fund at that

time and would not be eligible for the final divvying up of tribal assets under federal

supervision. Id.

It seemed the process of dissolving the federal relationship with the Ottawa tribe

which began in the State of Kansas by the 1862 Treaty continued in the Indian

Territory by the terms of the 1867 Treaty, albeit extended for two years to July 16,

1869. The 1867 Treaty contained none of the promises found in earlier treaties, such

as perpetual right to the land, freedom from disturbance, the right to occupancy, and

recognition of tribal sovereignty. Cf. Art. III, 1831 Treaty, 7 Stat. 360. Quite the

opposite. The treaty only promised that tribal members were to become U.S. citizens

and that land would be purchased for them. 1867 Treaty, 15 Stat. 513. On the surface,

the Act “simply extend[ed] to July 16, 1869, the time for terminating the tribal

existence and transforming all the members thereof into individual citizens of the

United States and the state in which they reside.” Wiggan v. Connolly, 163 U.S. 56,

61 (1896). But it was widely understood that this Act would create a new reservation.

And this Court found that its purpose was for certain members of the Ottawa Tribe

who declined to become U.S. citizens to move to the Indian Territory to continue their

tribal relations on this reservation. Id.

By 1890, the Ottawas in the Indian Territory numbered 137 in all, living on

allotments in the 23 square-mile area—about one-half of one percent of the Indian

Territory. Census Bureau, Report on Indian Taxed and Indians Not Taxed in the

United States, 249 (1890) (1890 Census Report). By contrast, the Five Tribes—the

Cherokee, Creek, Choctaw, Chickasaw, and Seminole—collectively occupied over

40,000 square miles. The land of the Ottawas, along with the Eastern Shawnee,

Modoc, Peoria, Quapaw, Seneca-Cayuga, and Wyandotte, were considered the only

“reservations in Indian territory proper ... , situated northeast of the Cherokee

nation” and overseen by the Quapaw agency of the Bureau of Indian Affairs. Id. at

245. The transition to farming was not easy, but according to federal officials “[the

Ottawas] are doing much better as farmers” since taking their allotments under the

General Allotment Act. Id. at 249. Yet more change was in store for this small tribe.

For two decades, proposals to convert the Indian Territory into a state had been

floated in Congress. By the 1890s, these proposals looked to become a reality through

the merger of the Indian Territory and the Oklahoma Territory. To prepare, Congress

thought it wise to dissolve the reservations and tribal lands created by treaty. An

1890 census report described how this was done:

Indian reservations existing by virtue of treaty stipulations are usually

abolished or reduced in the manner following: an agreement is entered

into between the Indians and agents or commissioners appointed by the

Secretary of the Interior, with or without authority of Congress, for that

purpose; such agreement is submitted to Congress for acceptance and

ratification, and provides for the relinquishment, for valuable

considerations, of a part or the whole of the lands claimed by the Indians

either under treaty stipulations or otherwise.

1890 Census Report at 90. The vast majority of the land in the Indian Territory

was owned in fee simple by the Five Tribes. In 1893, Congress appointed a

commission, led by Senator Henry Dawes, to “enter into negotiations with the [Five

Tribes] for the purpose of the extinguishment of the national or tribal title to any

lands within that Territory now held by any and all of such nations or tribes,” whether

by cession, allotment, or some other method, “to enable the ultimate creation of a

State or States of the Union which shall embrace the lands within said India[n]

Territory.” Act of Mar. 3, 1898, § 16, 27 Stat. 645; see also Jefferson v. Fink, 247 U.S.

288, 291 (1918); Woodward v. de Graffenried, 238 U.S. 284, 295 (1915); Stephens v.

Cherokee Nation, 174 U.S. 445, 446 (1899). The Five Tribes were initially resistant to

allotment. But a series of acts, including the Curtis Act, Act of June 28, 1898, 30 Stat.

495, which abolished all tribal courts in the Indian Territory and provided that “the

laws of the various tribes or nations of Indian shall not be enforce at law or in equity

by the courts of the United States in the Indian Territory,” pressured the Five Tribes

into accepting allotment agreements. Ottawa allotment, on the other hand, was

already underway. See Act of March 3, 1891, 26 Stat. 989; see also 1890 Census Report

at 249 (reporting that the Ottawas live on allotments).

So too was the process of unifying all people regardless of race in the Indian

Territory under the same system of laws and privileges. In 1897, Congress vested the

United States pourts in the Indian Territory with “exclusive Jurisdiction” to try “all

civil causes in law and equity” and all “criminal causes” for the punishment of

offenses by “any person” in the Indian Territory. Act of June 7, 1897 (Indian

Department Appropriations Act), 30 Stat. 83. And Congress made the laws of the

United States and Arkansas in force in the Indian Territory applicable to “all persons

therein, irrespective of race.” Id. (emphasis added).

Oklahoma’s Enabling Act later extended the laws of the Oklahoma Territory

over the Indian Territory, in place of the laws of Arkansas, until the new state

legislature provided otherwise. §§ 2, 18, 21, 34 Stat. 268-269, 275, 277-278; see

Jefferson v. Fink, 247 U.S. 288, 294 (1908). The next year, Congress amended the

Enabling Act to ensure that “[a]ll [non-federal] criminal cases pending in the United

States courts in the Indian Territory” would be “prosecuted to a final determination

in the State courts of Oklahoma.” § 3, 34 Stat. 1287. The new state courts of

Oklahoma were deemed the “successors” to the federal court in the Oklahoma and

Indian Territories. §§ 16, 17, 20, 34 Stat. 276-277, as amended by Act of Mar. 4, 1907,

§ 3, 34 Stat. 1286-1288. Local—as opposed to federal—cases that were pending in

federal court were transferred to the new state courts of Oklahoma. Until then, cases

arising out of the Quapaw agency, including cases involving the Ottawa, were tried

in the district court of Kansas. 1890 Census Report at 245. In reality, unlike most of

the Indian Territory, “[c]rime [was] almost unknown on the [Ottawa] reservation”

and the few disputes that arose “the agent settles.” Jd. at 249. All the same, at the

incoming of statehood, through the Enabling Act, the laws of the state of Oklahoma

were substituted. See SAMUEL THOMAS BLEDSOE, INDIAN LAND LAWS: BEING A

TREATISE ON INDIAN LAND TITLES IN OKLAHOMA, 291 (1913) (Indian Land Law) (noting

the substitution of Oklahoma state law for that of Kansas regarding the law of

descent).

Statehood unified the various tribes both together and with the people of the

Oklahoma Territory under state law. “Allotments to members of the various Indian

tribes in Oklahoma had been substantially completed at the time of the approval of

the [Enabling Act], and consequently at the time of the admission of Oklahoma to

statehood.” Id. at 37. The county occupying the very northeast corner of the State was

named Ottawa County, for the Ottawa Tribe. In 1909, all restrictions on the sale of

the allotments of the Ottawa and other tribes in the Quapaw agency were removed,

except for a forty acre homestead, and all remaining tribal lands were put up for sale.

§§ 1, 2, Act of March 3, 1909, 35 Stat. 751. The Ottawa had become citizens of the

United States and of the state of Oklahoma.

In 1934, the Wheeler-Howard Act, or Indian Reorganization Act (IRA), Act of

June 18, 1934, 48 Stat. 984, was passed ending the process of allotment on Indian

lands in the United States. The allotment policy for many tribal members led to

deplorable living conditions, fractionated land holdings, and huge land loss with little

or nothing to show for it. See The Indian Problem: Resolution of the Committee of One

Hundred Appointed by the Secretary of the Interior, H. R. Doc. No. 149 (1924); THE

INSTITUTE FOR GOV'T RESEARCH, STUDIES IN ADMINISTRATION, THE PROBLEM OF INDIAN

ADMINISTRATION, Feb. 21, 1928 (Lewis Meriam ed., 1928. Johns Hopkins Press). The

“overriding purpose” of the IRA was to “establish machinery whereby Indian tribes

would be able to assume a greater degree of self-government, both politically and

economically.” Morton v. Mancari, 417 U.S. 535, 542 (1974). The IRA stopped

allotment and allowed for the acquisition of tribal trust land, the organization of

tribal corporate charters, and the adoption of tribal constitutions. 48 Stat. 986-87. By

its terms, however, the IRA did not apply to the Five Tribes or the tribes of the

Quapaw agency. § 13, 48 Stat. 986-87. Rather, the Ottawa Tribe re-organized with a

corporate charter and adopted its Constitution under the Oklahoma Indian Welfare

Act, which had similar provisions as the IRA specifically suited for Oklahoma tribes.

Act of June 26, 1936, 49 Stat. 1967. This condition persisted for some years.

The Ottawa Tribe however would soon be part of another federal policy shift—

one of terminating federal supervision over tribes. See House Concurrent Resolution

108, August 1, 1953 (declaring termination of federal supervision over Indian tribes

to be official Congressional policy). Under this policy, many smaller tribes were

subject to withdrawal of federal recognition, liquidation of tribal assets, including the

land base, and transferal of jurisdiction over Indians to the states. In 1956, Congress

ended the trust relationship between the federal government and the Ottawa Tribe,

cutting off Indian-related services to their members and ending federal recognition of

the tribe. Act of Aug. 3, 1956, 70 Stat. 963.

The Ottawa Tribe’s status as a federally recognized tribe was terminated.

Congress declared that “[a]ll statutes of the United States which affect Indians

because of their status as Indians shall no longer be applicable to the members of the

[Ottawa Tribe].” § 8, 70 Stat. 964. The Ottawas’ corporate charter under the

Oklahoma Indian Welfare Act was revoked. § 9(a), 70 Stat. 965. The few remaining

restrictions on Ottawa allotments or trust land were removed. Members of the tribe

received unrestricted title to the land and all money held by the federal government

was to be disbursed to tribal members within three years. § 2, 70 Stat. 963. Following

protracted litigation in the Indian Court of Claims, provisions for the final payments

were not finalized until 1967. Act of Aug. 11, 1967, 81 Stat. 166. Without recognition

from the federal government, Ottawa leaders along with leaders from neighboring

tribes formerly comprising the Quapaw agency formed a nonprofit corporation,

chartered under Oklahoma law, for the health and welfare of their people. See Report

on Conveying Certain Land of the United States to the Intertribal Council, Inc.,

Miami, Oklahoma, accompanying S. 2888, Senate Report no. 93-1118 (1974).

Then federal policy swung in the opposite direction. In the 1970s, Congress

restored the federal relationships between tribes severed in the 1950s, including the

Ottawa Tribe of Oklahoma. Act of May 15, 1978, 92 Stat. 246. While the federal

government now again recognized the Ottawa people as Indians, nothing established

or re-created a reservation for them.

Indeed, even by the time of termination, the Ottawa Tribe had no recognized

land base. A 1976 federal report is telling. It noted that when the federal-tribal

relationship with the Menominee Tribe of Nebraska was terminated 3,270 tribal

10

members were affected as well as 233,881 acres of Indian lands. And for the Klamath

Tribe of Oregon 2,133 tribal members and 862,662 acres of Indian lands were

affected. But for the Ottawa Tribe of Oklahoma, while 630 members were affected,

zero acres of Indian lands were affected. See J. Hunt, Final Report to the American

Indian Policy Review Commission, Report on Terminated and WNon-federally

Recognized Indians, 1640 (1976). This fits with how the land has been treated since

statehood by courts, the state, the federal government, and the tribe itself. And

restoring to tribal members land that had been absolutely unrestricted and therefore

changing hands for two decades may not have been practical.

Silence on the question of land status is in sharp contrast to other tribes who

had their status re-affirmed around the same time. For example, the acts restoring

recognition to the Little Traverse Band of Odawa Indians and the Little River Band

of Ottawa Indians specifically provided for lands to be acquired for the respective

tribes and that the lands would be part of the tribes’ reservations. See Hayes

Township, Michigan v. Midwest Regional Director, 36 IBIA 303 (2001). There is no

such provision for the Ottawa Tribe of Oklahoma. Nevertheless, the Ottawa Tribe of

Oklahoma has been operating a casino, convenience store, and tribal headquarters

on isolated parcels of land held in trust for it by the United States, which are pursuant

to special provisions allowing for trust land on former reservations within Oklahoma.

See, e.g., 25 U.S.C.A. § 2719(a).

11

Case Background.

1. In June of 2012, an unidentified informant notified law enforcement that

Petitioner, who was on parole, was manufacturing methamphetamine at his home.

Terry v. State, 334 P.3d 953, 954 (Okla. Crim. App. 2014), Police officers searched

Petitioner’s apartment pursuant to the rules and conditions of his parole. Id. Inside

Petitioner’s apartment, officers found items associated with the manufacture of

methamphetamine. Id. at 954-55. Petitioner was convicted after a non-jury trial of

Manufacturing a Controlled Dangerous Substance (Methamphetamine) Within 2,000

Feet of a School (Count 1), Possession of a Controlled Dangerous Substance (Count

2), and Possession of Drug Paraphernalia (Misdemeanor) (Count 3). Id. at 954.

Petitioner’s sentences for the two felony convictions were enhanced by prior felony

convictions. Jd. Petitioner was sentenced to thirty years imprisonment on Count 1,

six years imprisonment on Count 2, and one year in the county jail on Count 3. Id.

The Oklahoma Court of Criminal Appeals (OCCA) affirmed Petitioner’s convictions

and sentences on direct appeal. Jd. at 957. This Court denied Petitioner’s petition for

writ of certiorari. Terry v. Oklahoma, 135 8S. Ct. 2053, 191 L. Ed. 2d 958 (2015).

2. On September 26, 2014, Petitioner filed an application for a suspended

sentence in Ottawa County District Court. The application was denied on October 10,

2014. Petitioner did not appeal. See Terry v. State, No. CF-2012-242, slip op. at n.1

(Ottawa Cty. Dist. Ct. May 2, 2016).

12

3. On February 25, 2016, Petitioner filed an application for post-conviction relief

in Ottawa County District Court. Petitioner filed an amendment to his postconviction application, adding a ground for relief, on March 7, 2016. Petitioner did

not raise any claims related to jurisdiction. The district court denied the application

on May 2, 2016. See Terry v. State, No. CF-2012-242 (Ottawa Cty. Dist. Ct. May 2,

2016). Petitioner’s appeal was denied by the OCCA. See Terry v. State, No. PC-2016-

412 (Okla. Crim. App. July 21, 2016).

4. On December 9, 2016, Petitioner filed a motion asking the state district court

to order his transfer to another facility so that he could receive substance abuse

treatment. The district court construed the motion as a motion for judicial review of

Petitioner’s sentence, and denied it. See Oklahoma v. Terry, No. CF-2012-242 (Ottawa

Cty. Dist. Ct. Jan. 17, 2017).

5. Finally, on April 23, 2018, Petitioner filed the post-conviction application that

is the subject of this proceeding. Petitioner alleged in Ottawa County District Court

that the state courts lacked jurisdiction pursuant to 18 U.S.C. § 1152. On September

17, 2018, the Ottawa County District Court denied Petitioner’s second application for

post-conviction relief for two reasons. First, to the extent that Petitioner relied on

Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), cert. granted sub nom Royal v.

Murphy, 138 S. Ct. 2026, 201 L. Ed. 2d 277 (2018), Murphy applied only to the Creek

Nation, and the Tenth Circuit’s decision in that case was being reviewed by this

Court. Pet. App. A at 4. Second, the court held that the reservation was

disestablished by the Public Law 943. Pet. App. A at 6-7.

13

6. On February 25, 2019, the OCCA affirmed. The OCCA first noted that

“Petitioner has not established any sufficient reason why his current grounds for

relief were not previously raised” as required by statute. Pet. App. B. at 2 (citing Okla,

Stat. tit. 22 § 1086). The OCCA then held that Petitioner had failed to “establish[]

that the District Court lacked jurisdiction” Pet. App. B at 2-3. Finally, the OCCA

noted that “Murphy is not a final decision and Petitioner has cited no other authority

that refutes the jurisdictional provisions of the Oklahoma Constitution.” Pet. App.

B. at 3 (citing “Okla. Const. Art. VII, § 7 (District Courts shall have unlimited original

jurisdiction of all justiciable matters in Oklahoma)”).

REASONS THE PETITION SHOULD BE DENIED

This petition should be denied for several reasons: Petitioner’s conviction can be

upheld on independent and adequate state grounds; there is insufficient evidence

that Petitioner is Native American or that the crime occurred within the historical

boundaries of the Ottawa Reservation; the land in question is not a reservation today;

and even if the land is a reservation, the State of Oklahoma has criminal jurisdiction.

If this Court does not deny the Petition now, it should await disposing of the Petition

until the Court decides related issues in Sharp v. Murphy, No. 17-1107.

I. The decision below rests on independent and adequate state grounds.

The OCCA began its order with a brief procedural history of the case, after

which it asserted that Petitioner had not established that he is entitled to relief. Pet.

App. B at 2. The OCCA cited a prior case which established that “it is fundamental

that where a post-conviction appeal is filed, the burden is upon the petitioner to

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sustain the allegations of his petition” Jd. (citing Russell v. Cherokee County District

Court, 438 P.2d 2938, 294 (Okla. Crim. App. 1968)). The OCCA then recognized its rule

whereby claims not raised on direct appeal are waived and concluded that “Petitioner

has not established any sufficient reason why his current grounds for relief were not

previously raised.” Jd. (citing Okla. Stat. tit. 22, § 1086. Next, the OCCA noted that

Petitioner “trie[d]” to claim that his crimes were committed in Indian Country. Id.

The court concluded “[hlowever, the prosecution of Petitioner’s crimes in that case

[CF-2012-242] was a justiciable matter, and thus he has not established that the

District Court lacked jurisdiction. Okla. Const. Art. VII, § 7 (District Courts shall

have unlimited original jurisdiction of all justiciable matters in Oklahoma).” Id. at

2-3. Finally, the OCCA’s sole recognition of federal law came when it stated that “[t]he

issues raised in Petitioner’s application are addressed in Murphy v. Royal, 866 F.3d

1164 (10th Cir. 2017) and as a result are currently pending before the United States

Supreme Court.” Id. at 3. Noting that the Tenth Circuit stayed its mandate pending

this Court’s review, the OCCA concluded that “Murphy is not a final decision and

Petitioner has cited no other authority that refutes the jurisdictional provisions of the

Oklahoma Constitution.” Id.

This Court lacks jurisdiction to review a state court judgment when that

judgment rests on adequate and independent state grounds. Coleman v. Thompson,

501 U.S. 722, 729 (1991). The question is whether the state court’s decision “fairly

appears to rest primarily on federal law, or to be interwoven with the federal law”

Michigan v. Long, 463 U.S. 1032, 1040 (1983). If the state court’s decision rests

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primarily on federal law, or is interwoven therewith, this Court may review the

judgment unless the state court clearly and expressly indicates that its decision “is

alternatively pased on bona fide separate, adequate, and independent grounds.” Id.

at 1040-41.

The OCCA’s denial of Petitioner’s post-conviction application does not rest

primarily on federal law, nor is it interwoven with federal law. Rather, the OCCA

determined that Petitioner had failed to overcome the Oklahoma Constitution’s grant

of jurisdiction on state district courts. The OCCA did not analyze the various treaties

and statutes which are necessary to a determination of whether state jurisdiction was

divested by the federal government. In effect, the OCCA denied Petitioner’s claim as

premature, given that the Murphy case has yet to be decided. As the OCCA’s

judgment was not based on or interwoven with federal law, this Court does not have

jurisdiction to review it.

II. This Case is a Poor Vehicle to Address the Question Presented.

This case is a poor vehicle to address the question for other reasons as well. Before

this Court can address whether the land allotted to members of the Ottawa Tribe in

1867 constitutes a reservation today for the purpose of criminal jurisdiction,

Petitioner must show two things: (1) that he is an Indian, and (2) that the crime

actually occurred within the disputed boundaries. Petitioner shows neither.

First, there is inadequate evidence in the record that Petitioner is a member of

the Cherokee Nation or any other Indian tribe within the meaning of 18 U.S.C.

§ 1153(a). Cf. Sup. Ct. Rule 15(2). The state trial noted that Petitioner’s jurisdictional

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claim must be raised “in a proper manner and provide supporting evidence that the

Petitioner is an ‘Indian.” Pet. App. 1. An evidentiary hearing was never conducted on

the issue of whether Petitioner is an Indian. Nor was it an element of the underlying

crime. The State does not concede that Petitioner is an Indian for purposes of criminal

jurisdiction.

Second, there is nothing in the record to indicate that the crime actually occurred

on the land at issue. The land purchased from the Shawnee Tribe for Ottawa tribal

members in the former Indian Territory is small and diagonal in shape covering only

a portion of Miami, Oklahoma near the Neosho River. The only evidence of location

in the record—necessary to establish venue in the Ottawa County District Court—is

that the crime occurred in Ottawa County. But the Ottawa’s former reservation is

only a sliver of present-day Ottawa County. Petitioner admits that location of the

crime relative the disputed boundaries “remains yet to be resolved.” Pet. 19. He has

requested evidentiary hearings in state court on the location of the crime and its

status as Indian country, but those requests have been denied. Instead, the state

court ruled that regardless of the location the area is not an Indian reservation. Pet.

App. 5-6. This Court is “a court of review, not of first view.” Cutter v. Wilkinson, 544

U.S. 709, 718 n.7 (2005). Petitioner claims to “now present[] argument and evidence

supporting the conclusion that the location” of the crime “lay geographically within

the boundary established by Congress in the 1867 Act.” Pet. 19. But Petitioner does

not even do that. And the State does not concede that the crime occurred within the

disputed area.

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In addition, even if the Ottawa reservation was not disestablished, it was at the

very least reduced. Before statehood, parts of the Ottawa reservation, along with

parts of the connecting Peoria reservation, were opened for allotment of land to non-

Indians. See, e.g., Act of March 3, 1891, 26 Stat. 989 (providing for allotments to a

Kansas-based corporation); See also Opening of Indian Reservations to Actual and

Bona Fide Homestead Settlers, H.R. Report No. 1017 (1894) (reporting that 12,714.80

acres of the Ottawa reservation were allotted to the 157 Indians; 557.95 acres were

authorized to be sold by act of March 3, 1891. The residue, 1,587.25 acres, unallotted).

These provisions, usually in the form of surplus land acts, often effected reservation

reduction. See, e.g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); South Dakota

v. Yankton Sioux Tribe, 522 U.S. 329 (1998); Hagen v. Utah, 510 U.S. 399 (1994).

There is nothing on the record to indicate whether Petitioner’s crime occurred within

one of the non-Indian allotments—which would raise another set of issues that could

not be answered here—or within the other parts of the historical Ottawa reservation.

III. Petitioner’s Argument Fails On The Merits.

In any case, the land acquired for Ottawa tribal members in 1867 is not a

reservation today. In its own code, the Ottawa Tribe acknowledges that it lacks

jurisdiction over the entire area as it would if the area were a reservation. Its liquor

ordinance states that its jurisdiction is over its “tribal lands [which] are located on

trust land” within the area, not the whole area. See Liquor Control Ordinance of the

Ottawa Tribe of Oklahoma, June 16, 2006, 71 Fed. Reg. 34958. The Ottawa’s land

holdings are under special provisions allowing for trust land on former reservations

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within Oklahoma. See, e.g., 25 U.S.C.A. § 2719(a).

The reservation was disestablished upon statehood. To be sure, the recorded

history of the Five Tribes leading up to statehood paints a clearer picture of

congressional intent to disestablish the Five Tribes’ reservations upon statehood.

But, like those pertaining to the Five Tribes, the acts of Congress both at that time

and since statehood demonstrate that the Quapaw agency reservations, including

that of the Ottawas, were disestablished as part of the process of allotting Indian

lands, granting U.S. citizenship to tribal members, displacing tribal jurisdiction, and

establishing the supremacy of state law and state jurisdiction.

Like the rest of the former Indian Territory, the area in question has not been

treated as reservation since statehood. The State of Oklahoma has prosecuted

offenses committed by or against Indians on these lands. The federal government has

never prosecuted a crime under the theory that the land is an Indian reservation. Nor

has the Ottawa Tribe. See Hagen, 510 U.S. at 421 (noting that the “State ... exercised

jurisdiction over the opened lands from the time the reservation was opened” to

settlement, and that the “jurisdictional history’ ... demonstrates a practical

acknowledgment that the Reservation was diminished; a contrary conclusion would

seriously disrupt the justifiable expectations of the people living in the area”); see also

Rosebud Sioux, 430 U.S. at 603 (“[Tlhe single most salient fact is the unquestioned

actual assumption of state jurisdiction over the [land at issue].”).

Even ignoring congressional intent to disestablish the Ottawa reservation upon

statehood, the area is not a reservation today because it could not have remained

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intact when the tribe was terminated in the 1950s. The loss of federal recognition in

toto would have necessarily meant the land lost its reservation status. In addition,

the disbursement of tribal funds resulting from the sale of tribal lands to individual

members, as opposed to the tribe, strongly suggests disestablishment. See, e.g., Solem

v. Bartlett, 465 U.S. 463, 473-474 (1984). Here, the final proceeds of the sale of Ottawa

tribal lands, among other funds, were distributed to individual tribal members,

thereby eliminating any continuing tribal function, including tribal interest in the

land. §§ 1-2, 81 Stat. 166.

Restored federal recognition of the Ottawa tribal members as Indians did not

create a reservation. Nothing in the act even mentions their land base. Indeed, under

the policy of tribal recognition of the 1970s, the federal government found that there

was no Ottawa land base to restore. Hunt Report at 1640. In other words, the area

was not a reservation at the time of tribal termination. At the same time, the federal

government found hundreds of thousands of acres affected by the termination of other

tribes; and it sought to restore tribal lands back to those tribes. Id.; see also Hayes

Township, Michigan v. Midwest Regional Director, 36 IBIA 303 (2001). But there is

no such land acquisition or restoration provision for the Ottawa Tribe of Oklahoma.

IV. At a minimum, this Court should first decide Murphy before disposing of

this Petition.

A decision in Sharp v. Murphy, No. 17-1107 (U.S.), may answer the criminal

jurisdiction question regardless of whether the tract at issue in this case is a

reservation. In Murphy, the Court heard oral argument on the question of whether

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the 1866 boundaries of the Creek Nation constitute an Indian reservation today.

Afterward, the Court requested supplemental briefing on the question of whether

“any statute grants the state of Oklahoma jurisdiction over the prosecution of crimes

committed by Indians in the area within the 1866 territorial boundaries of the Creek

Nation, irrespective of the area’s reservation status.” Carpenter v. Murphy, No. 17-

1107, Order (Dec. 4, 2018).

The laws that subjected the Five Tribes to the same criminal laws as non-Indians

in the Indian Territory are equally applicable to the tribes of the Quapaw agency,

including the Ottawa Tribe. Throughout all of the Indian Territory, Congress

abolished tribal courts, barred enforcement of tribal law in U.S. Courts, and ensured

that all individuals, “irrespective of race,” Act of June 7, 1897 (1897 Act), 30 Stat. 83,

were subject to the same laws and to the jurisdiction of the same court, including in

criminal matters. Upon statehood, Congress transferred prosecution of all crimes of

a local nature to the state courts. Congress designated state courts as “successors” to

the United States Court for the Indian Territory, Oklahoma Enabling Act of June 16,

1906, §§ 17-20, 34 Stat. 276-277, as amended by Act of Mar. 4, 1907 (1907 Act), 8§ 2,

3, 34 Stat. 1286-1287, and ensured that a uniform body of Oklahoma law would apply

in the former Indian Territory, Enabling Act § 21, 34 Stat. 277-278. Resolving

whether these laws grant the state of Oklahoma criminal jurisdiction in the former

Indian Territory would resolve this Petition as well. In any event, a decision from this

Court on the disestablishment question in Murphy could be relevant to the question

presented in this case. At most, the Court should hold this case pending Murphy.

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To be clear, however, while it is true that Congress granted criminal jurisdiction

over this area to the state of Oklahoma, that is not all Congress did. The best reading

of the statutory text, history, and context is that all reservations within the former

Indian Territory have been disestablished. Congress did not spend decades erasing

distinctions based on race only to sub silentio reverse course and reinstate those

distinctions in a manner that would subject half of the new state to varied legal

schemes based on separate tribal lands.

The history of the Ottawa Tribe of Oklahoma is unsettling in every sense of the

word. Theirs is a story of survival and perseverance. Today, along with the Ottawa

people, the many federally recognized tribes in Oklahoma are thriving. Oklahoma

tribes are major drivers of Oklahoma’s overall economy, making an economic impact

of nearly $13 billion, supporting nearly 100,000 jobs, and investing over $1 billion in

the community. Kyle Dean, 2017 Oklahoma Native Impact Report (2017). The

cultural and economic impact of its tribes is felt more intensely in Oklahoma than in

states that have reservations.! This is good for Oklahoma, and a testament to the

health of the tribes. But this grew outside the reservation system, and none of it

depends on whether Oklahoma has reservations. We need not and should not start

over. No good will come from unsettling things again.

1 Perhaps its closest competition, the State of Alaska, also has no reservations, see

Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520 (1998), except for the

remote Annette Island Reserve.

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CONCLUSION

The Petition for Certiorari should be denied.

Respectfully submitted,

MIKE HUNTER

ATTORNEY GENERAL OF OKLAHOMA

MITHUN MANSINGHANI

Solicitor General

Counsel of Record

RANDALL YATES

Asst. Solicitor General

JENNIFER CRABB

Asst. Attorney General

OKLAHOMA OFFICE OF THE ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

mithun.mansinghani@oag.ok.gov

Counsel for Respondents

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