Opposition Brief — Oklahoma v. Brooks

Supreme Court, U.S.

FILED

> MAR 27 1989

No. 88-1147 + eeaenc

JOSEPH F.

Se ERK

In The

Supreme Court of the United States

October Term, 1988

STATE OF OKLAHOMA,

Petitioner,

a, vs.

CHESTER LEE BROOKS, A/K/A

ACHISSON AMENSHI AND

LARRY JOE BROOKS,

Respondents.

y%

vy

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF THE

STATE OF OKLAHOMA

a.

4

James R. Winniz, Esoa.*

1900 Dorchester Drive

Oklahoma City, OK 73120

Tel. (405) 842-5653

and

Leste R. ReyNouips, Esq.

112 South Choctaw

Bartlesville, OK 74003

Tel. (918) 336-3807

Attorneys for Respondents

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO,, (800)

OR CALL COLLECT (402) 342-2831

2)

4

QUESTION PRESENTED

Whether the State of Oklahoma has jurisdiction to

prosecute two Native Americans for crimes alleged to

have been committed in Indian Country as defined by 18

U. S. C. Section 1151 (c)?

STATEMENT ..

ARGUMENT ..

CONCLUSION

APPENDIX A

APPENDIX B.

ii

TABLE OF CONTENTS

iii

TABLE OF AUTHORITIES

Page

CASES

Antoine v. Washington, 420 U. S. 194 (1974)........... 5

Cheyenne-Arapaho Tribe of Oklahoma v. State of Okla-

homa, 618 F. 2d 665 (10th Cir. 1980)................ 5

C. M. G. v. State, 594 P. 2d 798 (Okl. Cr. 1979)..... » ©

Indian Country USA, Inc., v. Oklahoma Tax Comm.,

- 829 F. 2d 967 (10th Cir. 1987), Cert. den. Okla-

homa Tax Comm., v. Muscogee (Creek) Nation, June

ee EN MTP ses cet bescsnccessacess >» o, 6, 7

Menominee Tribe v. United States, 391 U. S. 404

Stuer dd ¥a NaN a sees doeecsdarsdsecsasees 5

Montana v. Blackfeet Tribe of Indians, 471 U. S. 759

RAG SLG Ch ten AdKhdde 66240 es edsdcdseces 5

Muscogee (Creek) Nation v. Hodel, 851 F. 2d 1439 (D.

C. Cir. 1988), Cert. den. Hodel v. Muscogee

(Creek) Nation, Jan. 9, 1989, No. 88-798............ 2

Ex Parte Nowabbi, 61 P. 2d 1139 (Okl. Cr. 1936).. 4, 6, 7

State v. Burnett, 671 P. 2d 1165 (Okl. Cr. 1983)...... 5, 6

State v. Klindt, Oklahoma Court of Criminal

Appeals No. S-84-781, pending on rehearing....... 2

State ex rel. May v. Seneca-Cayuga Tribe of Oklahoma,

Pee Oe MEM SOOO hs neds svecececassceseens 6, 7

State v. Littlechief, 573 P. 2d 263 (Okl. Cr. 1978)..... 5, 6

United States v. Burnett, 777 F. 2d 593 (10th Cir.

ne eee un ek diane kun 5

iv _

TABLE OF AUTHORITIES - Continued

Page

UNITED STATES CONSTITUTION

Pv Ba. Ee ere rrrery errr ery rrr 5

PSG Fi, TI ©, SAND Bic ccc ccc teccscwiseaees 5

a sisi dss ksnduvacannnaee

Acts OF CONGRESS

Oklahoma Enabling Act of June 16, 1906, ch.

enh sks ok 544 dn weed NENA Onda e ee 7

ee eR 8 Preyer rr erere rr rere 4

25 U. S. C. §§1121 et. seq. (P. L. 83-280) ...... 4,5, 7

MIscCELLANEOUS

Opinion of the Attorney-General of Oklahoma

No. 87-176. 10 Opinions of the Attorney-General

Cohen, Handbook of Federal Indian Law (1982

Ee ea errr rey reer err eye tT Orr eT: Terr Tee ete ee 6

No. 88-1147

sa

7

In The

Supre.ne Court of the United States

October Term, 1988

y%

vv

STATE OF OKLAHOMA, b

Petitioner,

vs.

CHESTER LEE BROOKS, A/K/A

ACHISSON AMENSHI AND

LARRY JOE BROOKS,

Respondents.

..

vv

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF THE

STATE OF OKLAHOMA

a

-

STATEMENT

Respondents oppose the Petition as there is no rea-

sons for further review of this matter. The decision below

is in accord with well established and settled law. —

Respondents, with the exceptions noted herein, agree

with the “Nature of the Controversy” (Petition, pp. 4-7)

and “Proceedings Below” (Petition pp. 7-14) and those

portions of the Petition will serve as Respondents’ State-

ment of the Case. The exceptions noted follow.

Petitioner believes this case to be parallel with Mus-

cogee (Creek) Nation v. Hodel, 851 F. 2d 1439 (D. C. Cir.

1988), Cert Den. Hodel v. Muscogee (Creek) Nation, January

9, 1989 No. 88-798, and State v. Klindt, No. S-84-781,

pending on rehearing before the Court below. Hodel now

final is authority holding that the Muscogee (Creek)

Nation has the power to establish Tribal Courts and Law

Enforcement Agencies in recognition of the Nations juris-

diction and its own Indian Country. Klindt could well

turn on the fact that neither the committing magistrate

nor the District Court on Appeal made specific findings

that he was of Native American or Indian blood. Peti-

tioner agrees in footnote 3, page 5 of its Petition. Such a

‘finding is, of course implicit, but the Court below may

well use Klindt to specify how proof is to be made of

Indian blood, and how the Courts below should make

such findings, and what, if any further record is neces-

sary for appeal. The cases all involve state criminal pros-

ecutions in Indian Country, but otherwise are unrelated.

The amicus seems to suggest some relationship in

these cases. The United States makes a broad statement in

the “Interest” portion of its brief (p 1) of the supposed

unsettling nature on the three United States Attorneys in

Oklahoma and upon the District Attorneys of 40 counties

within the State as to the jurisdiction to prosecute Indians

for crimes in Indian Country. (While Respondents’ coun-

sel are also of Native American blood and are sensitive to

the preference for the term “Native American” they use

the term “American Indian” or “Indian” herein, as the

appellation is so well engrained in the jurisprudence.)

The statement is illusory and untrue. The United

States Attorneys in all portions of Oklahoma regularly

prosecute Indians for crimes committed in Indian

Country.

Respondents believe that only the Petitioner and the

former District Attorneys of the Ottawa and Delaware

Counties District believe there to be any question as to

criminal jurisdiction in Indian Country. These District

Attorneys are parties to civil actions brought by Tribes in

the United States District Court for the Northern District

of Oklahoma. They are presently enjoined from attempt-

ing to execute state process or commence criminal actions

in the affected Indian Country by that Court. Indian Coun-

try USA, Inc. v. Oklahoma Tax Commission, 829 F.2d 967,

970 (10th Cir. 1987), Cert. den. Oklahoma Tax Comm. v.

Muscogee (Creek) Nation, June 27, 1988, No. 88-1068. That

case, wherein Petitioner was enjoined, resolves the issues

propounded by both Petitioner and amicus. The Ottawa-

Delaware County District Attorney is enjoined in #85-

C-639 B (unreported) in the Northern District of Okla-

homa, appeal docketed, #86-1885 (10th Cir., June 6, 1986.)

Both Petitioner and amicus refer to civil and criminal

jurisdiction in Indian Country in their filings here. No

civil law questions are involved. This case is an appeal

from a motion holding that the State does not have juris-

diction to prosecute criminal violations of its tax acts

allegedly committed in Indian.Country by Indians. This

case is a criminal procedure case.

,%

al

ARGUMENT

Petitioner and amicus seek a Writ of Certiorari and

review of the decision below to change long established

and well settled law dispositive of this case. They assert

criminal jurisdiction for the State without compliance

with P. L. 83-280, 25 U. S. C. §§ 1321, et seq., by judicial

fiat. They ask this Honorable Court to declare that

Indians of different tribes than the owners of Indian

Country are prosecutable in State Courts, despite the

clear Congressional mandates. Petitioner and amicus seek

reinstatement of Ex Parte Nowabbi, 61 P.2d 1139 (Okl. Cr.

1936). Nowabbi was overruled or superseded by later

amendment of the definition of Indian Country. Nowabbi

has been ignored by the Oklahoma Courts and the United

States District Courts and Court of Appeals for the Tenth

Circuit.

THE STATE OF OKLAHOMA HAS NO

TURISDICTION OF CRIMES COMMITTED BY

AN INDIAN IN INDIAN COUNTRY

The Respondents’ smokeshop, the locus in quo, was

located on lands leased from fee owners who are Mus-

cogee (Creek) Indians. The respondents are Delaware

Indians. (Appendix A, page 4a, Petition).

The Congress has clearly defined the Indian Country

over which it retains exclusive jurisdiction as:

“ _.. (c) All Indian allotments, the Indian titles to

which have not been extinguished... .” 18 U.S. C.

§ 1151.

The United States, by the Constitution, has supreme

and exclusive jurisdiction over all matters involving the

American Indian. United States Constitution, Article I Sec-

tion 8, clause 3, Article II Section 2, clause 2 and Article

VI clause 2. Worcester v. Georgia, 31 U. S. 515 (1832);

Menominee Tribe v. United States, 391 U. S. 404 (1968);

Antoine v. Washington, 420 U. S. 194 (1974); Montana v.

Blackfeet Tribe of Indians, 471 U. S. 759 (1985); Cheyenne-

Arapaho Tribes of Oklahoma v. State of Oklahoma, 618 F.2d

665 (10th Cir. 1980), Indian Country USA, supra.

The Court of Criminal Appeals below previously

announced the rule that Indians are not subject to State

Court prosecution for crimes committed in Indian Coun-

try. State v. Littlechief, 573 P. 2d 263 (Okl. Cr. 1978); C. M.

G. v. State, 594 P. 2d 798 (Okl. Cr. 1979); State v. Burnett,

671 P. 2d 1165 (Okl. Cr. 1983); United States v. Burnett, 777

F. 2d 593 (10th Cir. 1985) (The same case in Federal

Court); Cheyenne-Arapaho and Indian Country, USA, both

supra. The Court follows its rule here.

Quoting from Burnett, the following is most

instructive:

“The issue in this Rule VI appeal is whether

restricted Osage allotment land is Indian Country

under federal law. We find that it is; and affirm the

magistrate’s order dismissing state murder charges

arising out of a slaying on such land.” Id., at page

1136.

[P. L. 83-280] .. . “passed in 1968, grants to the States

consent to assume, with the consent of the Indians

involved, jurisdiction to prosecute crimes committed

in Indian Country...

“However, the State’s assertion that the alleged exer-

cise of jurisdiction by individual law enforcement

6

officers and court officials constitutes a binding elec-

tion is unpersuasive. The states must ‘manifest by

political action their willingness and ability to dis-

charge their new responsibilities’ in order to make

effective the assumption of jurisdiction. . . .”

— Id., at page 1167.!

The Attorney-General of Oklahoma is in accord.

Opinion 87-176. 10 Opinions of the Attorney General 464.

Petitioner and amicus seek certiorari to revive Ex

Parte Nowabbi, supra. They assert that Nowabbi should be

followed as the Court below did not mention it in its

opinions in Littlechief, C. M. G., or Burnett. They argue

that it has been revived because the Court below over-

ruled the case in its original opinion, but did not mention

it in its opinion on rehearing. Nowabbi is contra to all the

cited cases.

Nowabbi was decided in 1936, prior to the dispositive

amendment of the Federal Criminal Code adding the

third category of Indian Country. See Cohen, Handbook of

Federal Indian Law, (1982 Rev.) pages 777 through 789, and

accompanying notes. Cohen’s authoritative Handbook was

originally published in 1942 prior to that amendment. It

was revised and republished in 1982. The latter edition

leaves no doubt that Nowabbi is not the law. Petitioner

and amicus cite the original 1942 edition of Cohen as

authority. The revised edition, cited by Respondents, the

Oklahoma Supreme Court and the 10th Circuit correctly

states the law. State ex rel. May v. Seneca-Cayuga Tribe of

Okiahoma, 711 P. 2d 77 (Okl. 1985) and Indian Country,

1 An extensive quotation from Burnett showing the Court

of Criminal Appeals reasoning and that it followed the law to

the letter is in Appendix A. .

7

USA, supra. The demise of Nowabbi is found in footnote 17

referring to footnote 16 of Seneca-Cayuga, Id., 81, 82.2

Nowabbi simply is no longer the law.

Petitioner and amicus argue that the court below

erred in not holding that Delaware Indians in Creek

Indian Country are prosecutable in State Court. This

argument is not the law, nor does it reflect error below.

The decision below is amply supported by case law.

Oklahoma has not complied with PL 83-280.

Petitioner argues that Oklahoma’s Enabling Act of

June 16, 1906, ch. 3335, 34 Stat. 367, granted the State

complete jurisdiction over Indian Country. This argument

has been litigated before and resolved adversely to Peti-

tioner. See Indian Country, USA, supra at pages 979 and

980.

The Court of Appeals for the Tenth Circuit held:

“The language of the Oklahoma Act, read in its his-

torical context, suggests that Congress intended to

preserve its jurisdiction and authority over Indians

and their lands in the new State of Oklahoma until it

accomplished the eventual goal of terminating the

tribal governments, assimilating the Indians, and dis-

solving completely the tribally owned land base -

events that never occurred and goals that Congress

later expressly repudiated... .” Indian Country, USA,

supra, at page 979.

This Honorable Court denied Certiorari in that case

leaving the decision against Petitioner standing in Indian

2 The text of the footnotes are in Appendix B. Respondents

note the correctness of the Court’s holding concerning

Nowabbi. The decision on jurisdiction is not the law, and is not

binding on the Court of Criminal Appeals.

Country, USA. The law is clear and has been decided in

the Court of Appeals.

a

4

CONCLUSION

The Oklahoma Court of Criminal Appeals decided

this case correctly by any reasonable standard of legal

philosophy. The decision is amply supported by the

Court’s own prior decisions, by the decisions of the

United States District Courts in Oklahoma and by the

Courts of Appeals for the Tenth and District of Columbia

Circuits. The decision is consonant with the controlling

Acts of Congress. Petitioner and Amicus seek review by

Certiorari to overturn long established settled law. Cer-

tiorari should be denied.

Respectfully submitted,

/s/ James R. Winnie

James R. Winniz, Esq.*

Oklahoma City, Oklahoma

and

LesuizE R. REYNOLDs, Esq.

Bartlesville, Oklahoma,

Attorneys for Respondents

* Counsel of Record

App. 1

APPENDIX A

State v. Burnett, 671 P. 2d 1165, 1166, 1167, 1168 (Okl. Cr.

1983):

“The issue on this Rule VI appeal is whether

restricted Osage allotment land is Indian Country

under federal law. We find that it is; and affirm the

magistrate’s order dismissing state murder charges

arising out of a slaying on such land.” (Id., at page

1166.)

“Indian Country’ for our purposes, means ‘all

Indian allotments, the Indian titles to which have not

been extinguished’... ” (Citing 18 U.S.C. Section

1151 (c) and cases). (Id., at page 1166.)

“Federal law permits states such as Oklahoma to

assume jurisdiction over Indian lands. However,

affirmative action is required to effectuate the

assumption of jurisdiction.

Title 25 U.S.C. §1321-] (a), (1970) passed in 1968,

grants to the states consent to assume, with the

consent of the Indians involved, jurisdiction to

prosecute crimes committed in Indian Country,

and 25 U.S.C. §1323 (1970), gives the consent of

the United States to states to amend their consti-

tutions or existing statutes to remove any legal

impediments to the state assuming that jurisdic-

tion. To date, the State of Oklahoma had made no

attempt to repeal Art. I, §3, of the Constitution of

the State of Oklahoma, which prohibits state

jurisdiction over Indian Country, so the federal

government still has exclusive jurisdiction over

Indian Country located within Oklahoma bound-

aries. See State v. Littlechief, Okl. Cr., 573 P.2d 263

(1978).

“C.M.G. v. State, 594 P.2d at 799. A state constitu-

tional amendment may not be necessary under

subsequent federal case law. Washington v. Con-

federated Bands and Tribes, 439 U.S. 463, 493, 99

App. 2

S.Ct. 740, 757, 53 L.Ed. 2d 740 (1979). However,

the State’s assertion that the alleged exercise of

jurisdiction by individual law enforcement offi-

cers and court officials constitutes a binding elec-

tion is unpersuasive. The states must “manifes(t)

by political action their willingness and ability to

discharge their new responsibilities’ ” in order to

make effective the assumption of jurisdiction.

Id., at 486, 99 S.Ct. at 754, Note 30, quoting from

Kennerly v. District Court of Montana, 400 U.S. 423,

91 S.Ct. 480, 27 L.Ed.2d 507 (1971). An assump-

tion of jurisdiction over the Indian Country

could involve considerable burdens. Williams v.

Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 272, 3 L.Ed.2d

251 (1959), and thus far, no one with the right

and power to speak for and bind Oklahoma has

done so.” (Id., at pages 1167 and 1168.)

The Court concluded:

“The land in question is ‘Indian Country’ within

the meaning of 18 U.S.C. §1151 (c) (1976), and

outside the jurisdiction of the District Court...”

(Id., at page 1168.)

App. 3

APPENDIX B

State ex rel May v. Seneca-Cayuga Tribe of Oklahoma, 711 P.

2d 77, 81, 82 (Okl. 1985):

To the extent that extant Oklahoma case law may be

construed to reach a contrary conclusion, it is hereby

disapproved and withdrawn.!7

17 Ex parte Nowabbi, supra note 16 at 1153 through 1156;

Oklahoma Attorney’s General Opinion No. 79-216, supra note

16. Ex parte Nowabbi, supra note 16, holding that Oklahoma

could take jurisdiction over crimes committed by Indians in

Indian Country, on which the Attorney’s General Opinion

relies, is based on pre-1948 law. The 1948 revised United States

Code includes revisions found at 18 U.S.C. § 1151 (defining

Indian Country) and § 1153 (The Major Crimes Act vesting

jurisdiction in the United States for major crimes, e.g., murder,

discussed in Nowabbi, supra note 16). Since enactment of the

1948 code, courts have been reluctant to exclude the lands of

eastern Oklahoma tribes from application of federal law. See,

e.g., United States v. John, 437 U.S. 634, 648 through 652, 98 S.Ct.

2541, 2548 through 2550, 57 L.Ed.2d 489 [1978] (federal law

under the Major Crimes Act applied to Choctaws in Missis-

sippi). For a thoughtful analysis of the Nowabbi decision and

reasons to exclude it as a basis of state jurisdiction, see Cohen,

supra note 16 at 777 through 780 and accompanying notes.

16 Because the State argues that all tribes in Indian Terri-

tory were disestablished by a series of events culminating in

Oklahoma statehood, citing as authority Ex parte Nowabbi, 60

Okl1.Cr., 111, 61 P.2d 1139 [1936] and Oklahoma Attorney’s

General Opinion No. 79-216 [December 31, 1979], we note

briefly the history of the Five Civilized Tribes in comparison

with the tribes of the Quapaw Indian Agency. Most of the

historical references derive from the excellent sketches in Harjo

v. Kleppe, 420 F.Supp. 1110 [D.C. 1976], aff'd. sub nom, Harjo v.

Andrus, 581 F.2d 949 [D.C.Cir.1978] (hereinafter referred to as

(Continued on following page)

App. 4

(Continued from previous page)

Harjo v. Kleppe), and in F. Cohen, Handbook of Federal indian

Law, 770 through 784 [1982 ed.]. The Five Civilized Tribes

(Creek, Cherokee, Seminole, Choctaw and Chickasaw) came to

Oklahoma following the Indian Removal Act of 1830. Harjo v.

Kleppe, supra at 1119. Before the Civil War, these tribes owned

most of the present-day Oklahoma, but because of their alli-

ance with the Confederacy, were penalized by forced cession of

their western lands to the federal government. Their remaining

lands came to be known as “Indian Territory”. Harjo v. Kleppe,

supra.

Increasing white settlement had created a demand for allot-

ment of Indian lands, resulting in passage of the “Indian

General Allotment Act” (also known as “The Dawes Act” or

the “Dawes Severalty Act”). Act of February 8, 1887, ch. 119, 24

Stat. 388 (codified as amended at 25 U.S.C. § 331 et seq. [1982]).

The purpose of the Act was to distribute tribal lands to reser-

vation Indians for eventual resale to white settlers. Although

individual allottees were subject to state or territorial laws

(both civil and criminal), after the issuance of trust patents the

Act was amended in 1906 to postpone such jurisdiction until

the trust period expired and fee simple patents were issued.

Act of May 8, 1906, ch. 2348, 34 Stat. 182 (codified at 25 U.S.C.

§ 349 [1982]). See Ahboah v. Housing Authority of the Kiowa Tribe,

Okl., 660 P.2d 625, 628 [1983]. The Act exempted the lands of

the Five Civilized Tribes, but the tribes of the Quapaw Indian

Agency came within the terms of the Act and their lands were

allotted at that time or shortly thereafter. Harjo v. Kleppe, supra

at 1121 through 1122. (Note that the Quapaw Tribe, which had

resisted the allotment policy, by tribal action allotted their own

lands in 1893 and received congressional approval in 1895). See

footnote 11 supra.

With the creation of Oklahoma Territory in 1890 (Organic Act),

the Five Civilized Tribes and the tribes of the Quapaw Agency

were exempted as the unorganized Indian Territory under

concurrent federal and tribal jurisdiction. Act of May 2, 1890,

(Continued on following page)

App. 5

(Continued from previous page)

ch. 182, § 1, 26 Stat. 81. Because of frequent disputes between

the Indian tribes and white settlers (who were rapidly growing

in number), in 1895 Indian Territory was divided into three

judicial districts, with federal jurisdiction (both civil and crimi-

nal) over United States citizens, and in mixed cases over tribal

citizens. These federal courts were to apply Arkansas law in

the absence of federal statute. Harjo v. Kleppe, supra at 1121.

With the Appropriations Act of June 7, 1897, ch. 3, 30 Stat. 62,

federal law was extended to include Indians in Indian Terri-

tory, although tribal legislation was still recognized subject to

Presidential approval or veto. Mention of the\tribes of the

Quapaw Indian Agency is omitted from the Appropriations

Act. Harjo v. Kleppe, supra at 1121. Major legislation following

the Appropriations Act of 1897 also omitted the tribes of the

Quapaw Agency and dealt specifically with the Five Civilized

Tribes. Organic Act of May 2, 1890, supra (creation of Okla-

homa Territory); Enabling Act of June 16, 1906, ch. 3335, 34

Stat. 267 (providing for Oklahoma statehood).

The Curtis Act of June 28, 1898, ch. 517, 30 Stat. 495 (providing

for forced allotments of lands held by the Five Civilized Tribes

and termination of tribal status), finally rendered tribal law

unenforceable in federal court, and the pre-existing tribal

courts were abolished. Allotments for the Five Civilized Tribes

were then completed by a series of congressional enactments.

Harjo v. Kleppe, supra at 1121 through 1122.