Petition — Oklahoma v. C. M. G.

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i: OCT 18 1979

[ican nan IR., CLERN.

Inthe Supremectourtof the Bnited Sintes

OcTOBER TERM, 1979

THE STATE OF OKLAHOMA,

Petitioner,

VERSUS

C. M. G., a juvenile,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF THE

STATE OF OKLAHOMA

JAN ERIC CARTWRIGHT

Attorney General of Oklahoma

JOHN F. FISCHER, II

Assistant Attorney General

112 State Capitol Building

Oklahoma City, Oklahoma 73105

Counsel for Petitioners

October, 1979

UTTERBACK TYPESETTING CO.— PHONE 235-0030 — 3740 S. HOLLIDAY AVE.— OKLA. CITY, OKLA. 73115

TABLE OF CONTENTS

OPINIONS BELOW

PAGE

JURISDICTION 2

QUESTIONS PRESENTED 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS

STATEMENT OF CASE

REASONS FOR GRANTING THE WRIT 7

,;CONCLUSION 10

CERTIFICATE OF SERVICE follows Petition.

APPENDIX A— Opinion of Court of Criminal Ap-

peals, State of Oklahoma (May 1, 1979) _.....__. _ A-1

APPENDIX B— Order Denying Petition for Rehear-

ing by Court of Criminal Appeals, State of Okla-

homa (July 23, 1979) B-1

TABLE OF AUTHORITIES

Cases

Ellis v. Page, 351 F.2d 250 (10th Cir. 1965) _...=-»-=——s 10

Codes and Statutes

18 U.S.C. § 1151(b) 2-6, 7, 10

Organic Act, 26 Stat. 81, Sec. 9 8

Enabling Act, 34 Stat. 277, Sec. 20 )

In the

Supreme Court of the United States

OcToOBER TERM, 1979

No.

THE STATE OF OKLAHOMA,

Petitioner,

VERSUS

C. M. G., a juvenile,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF THE

STATE OF OKLAHOMA

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

The Attorney General of the State of Oklahoma, on

behalf of the State of Oklahoma, the Petitioners herein,

prays that a Writ of Certiorari issue to review the judg-

ment of the Court of Criminal Appeals of the State of

Oklahoma entered in the above case on May 1, 1979.

OPINIONS BELOW

The Opinion of the Court of Criminal Appeals of the

State of Oklahoma is reported at 594 P.2d 798 (Okla.Cr.

1979), and is printed in Appendix “A” hereto, infra, page

A-1.

—

JURISDICTION

The judgment of the Court of Criminal Appeals of the

State of Oklahoma was entered on May 1, 1979. A timely

Petition for Rehearing was denied July 23, 1979, and is

printed in Appendix “B” hereto, infra, page B-1. The juris-

diction of the Supreme Court is invoked under 28 U.S.C.

§ 1257(3).

QUESTIONS PRESENTED

I. Whether the jurisdiction transferred from the Ter-

ritorial courts to the State of Oklahoma included jurisdic-

tion of crimes committed between members of the same

Indian tribe but not on land over which that tribe had

jurisdiction.

2. Whether the land on which the Chilocco Indian

School is located is “Indian country” within the meaning

of 18 U.S.C. § 1151(b).

CONSTITUTIONAL AND STATUTORY

PROVISIONS

“18 USC §1151. Indian country defined

Except as otherwise provided in sections 1154 and

1156 of this title, the term ‘Indian country’, as used in

this chapter, means (a) all land within the limits of

any Indian reservation under the jurisdiction of the

United States government, notwithstanding the issu-

ance of any patent, and, including rights-of-way run-

ning through the reservation, (b) all dependent Indian

communities within the borders of the United States

whether within the original or subsequently acquired

territory thereof, and whether within or without the

evita:

limits of a state, and (c) all Indian allotments, the

Indian titles to which have not been extinguished, in-

cluding right-of-way running through the same.

“Act of May 2, 1890, ch. 182, §9, 26 Stat. 81. Judicial

power, in whom vested—Jurisdiction of probate courts

and justices of the peace—Jurisdiction of supreme and

district courts—Supreme court to define judicial dis-

tricts—Unorganized territory—Appeals from district

courts, when—Appeals from supreme court, allowed

when—Additional jurisdiction of district courts—Cher-

okee Outlet—Supreme and district courts may issue

writs of mandamus.

That the judicial power of said Territory shall be

vested in a supreme court, district courts, probate

courts, and justices of the peace. The supreme court

shall consist of a chief justice and two associate jus-

tices, any two of whom shall constitute a quorum. They

shall hold their offices for four years, and until their

successors are appointed and qualified, and they shall

hold a term annually at the seat of government of said

Territory. The jurisdiction of the several courts herein

provided for, both appellate and original, and that of

the probate courts and of the justices of the peace,

shall be as limited by law.

“Act of May 2, 1890, ch. 182, § 12, Stat. 81. Extending

jurisdiction of district courts over Indians in Okla-

homa.

That jurisdiction is hereby conferred upon the dis-

trict courts in the territory of Oklahoma over all con-

troversies arising between members or citizens of one

tribe or nation of Indians and the members or citizens

of other tribes or nations in the Territory of Oklahoma,

and any citizens or member of one tribe or nation who

may commit any offense or crime in said Territory

against the person or property of a citizen or member

—4-- oe

of another tribe or nation shall be subject to the same

punishment in the Territory of Oklahoma as he would

be if both parties were citizens of the United States;

and any person residing in the Territory of Oklahoma,

in whom there is Indian blood, shall have the right to

invoke the aid of courts therein for the protection of

of his person or property, as though he were a citizen

of the United States: Provided, that nothing in this “Act of June 16, 1906, ch. 3335, §17, 34 Stat. 267. De-

act contained shall be so considered as to give juris-

diction to the courts established in said Territory in

controversies arising between Indians of the same tribe,

while sustaining their tribal relation.

such tribe or nation, and such contracts shall be deemed

valid and enforced by such courts; and in all cases over

which jurisdiction is conferred by this Act or may here-

after be conferred by Act of congress; and the pro-

visions of this Act hereinafter set forth shall apply to

said Indian Territory only.

termination of State cases in supreme court—Review,

etc.

That all causes, proceedings and matters, civil or

criminal, pending in the supreme court of the Terri-

tory of Oklahoma, or in the United States court of

appeals in the Indian Territory, not transferred to the

United States circuit or district courts in said State of

“Act of May 2, 1890, ch. 182, § 29, 26 Stat. 81. Bound-

aries of Indian Territory proper—Establishing a court.

That all that part of the United States which is Oklahoma shall be proceeded with, held, and deter-

bounded on the north by the state of Kansas, on the mined by the supreme court or other final appellate

east by the states of Arkansas and Missouri, on the court of such State as the successor of said supreme

south by the state of Texas, and on the west and north court of the Territory of Oklahoma and of the United

by the Territory of Oklahoma as defined in the first States court of appeals in the Indian Territory, subject

section of this Act, shall for the purposes of this Act, to the same right to review upon appeal or writ of

be known as the Indian Territory; and the jurisdiction error to the Supreme Court of the United States now

of the United States court established under and by allowed from the supreme or final appellate court of

virtue of an Act entitled ‘An Act to establish a United a State under existing laws.

States court in the Indian Territory, and for other |

purposes,’ approved March first, eighteen hundred and “Act of June 16, 1906, ch. 3335, § 20, 34 Stat. 267. Trial

eighty-nine, is hereby limited to and shall extend only | of cases, etc., pending in district and Indian Territory

over the Indian Territory as defined in this section; | courts not transferred—Appeals, etc.—Pending crimi-

that the court established by said Act shall, in addi- | nal cases.

tion to the jurisdiction conferred thereon by said Act,

have and exercise within the limits of the Indian Ter-

ritory jurisdiction in all civil cases in the Indian Ter-

ritory, except cases over which the tribal courts have

exclusive jurisdiction; and in all cases on contracts en-

tered into by citizens of any tribe or nation with citi-

zens of the United States in good faith and for valu-

able consideration, and in accordance with the laws of

That all causes, proceedings, and matters, civil or

criminal, pending in the district courts of Oklahoma

Territory, or in the United States courts in the Indian

Territory, at the time said Territories become a State

not transferred to the United States circuit or district

courts in the State of Oklahoma, shall be proceeded

with, held and determined by the courts of said State

the successors of said district courts of the Territory

=

of Oklahoma, and the United States courts in the In-

dian Territory; with the right to prosecute appeals or

writs of error to the supreme or appellate court of said

State, and also with the same right to prosecute ap-

peals or writs of error from the final determination in

such cases made by the supreme or appellate court of

such State to the Supreme Court of the United States,

as is provided by law for appeals and writs of error

from the supreme of [for] final appellate court of a

State to the Supreme Court of the United States. All

criminal cases pending in the United States courts in

the Indian Territory not transferred to the United

States circuit or district courts in the State of Okla-

homa, shall be prosecuted to a final determination in

the State courts of Oklahoma, under the laws now in

force in that Territory.”

STATEMENT OF CASE

On January 16, 1978, the State of Oklahoma filed a

Petition in the Juvenile Division of the District Court of

Kay County, Oklahoma, alleging that the Respondent, a

fifteen (15) year old Ponca Indian male and another juve-

nile committed the act of murder in the Second Degree by

beating to death a nineteen (19) year old Ponca Indian

male in the dormatory room of the victim at the Chilocco

Indian School (Case No. FRJ-78-4). On January 20, 1978,

an Amended Petition was filed charging the Respondent

with Murder in the First Degree.

On May 4, 1978, the District Court of Kay County

certified the Respondent as an adult pursuant to Oklahoma

law. The federal question involved here was first raised

when the Respondent filed a Motion to Dismiss asserting

that the alleged crime occurred on Indian country and

-_

therefore, the State court lacked jurisdiction to hear this

case. On June 4, 1978, the District Court ruled that the

State had jurisdiction to prosecute the crime charged and

transferred the case to the criminal division of the District

Court of Kay County.

The Respondent appealed the June 4, 1978 Order of

the District Court, which had overruled his Motion to Dis-

miss for lack of jurisdiction, to the Court of Criminal Ap-

peals of the State of Oklahoma, the Court of last resort for

appeals in criminal cases. On May 1, 1979, that court re-

versed the decision of the District Court of Kay County

and remanded the case with instructions to dismiss (Case

No. J-78-362, printed in Appendix “A”). A timely Petition

for Rehearing was denied July 23, 1979 (Printed in Ap-

pendix “B”).

REASONS FOR GFANTING THE WRIT

The Petitioners contend that the opinion of the Court

of Criminal Appeals of the State of Oklahoma misinter-

prets Federal law and decides a substantial federal ques-

tion which has not been previously decided by this Court

and in a manner which is inconsistent with the prior de-

cisions of this Court on related issues. Further, the decision

is in conflict with a decision of the United States Court of

Appeals for the Tenth Circuit.

The opinion which is the subject of this Petition holds

that the land on which Chilocco Indian School is located is

a “dependent Indian community” and, therefore, “Indian

country” as defined by 18 U.S.C. § 1151(b). Consequently,

it was determined that the State had no jurisdiction to

= uN

prosecute any criminal action committed by Indians, against

Indians at the Chilocco Indian School.

The land on which Chilocco Indian School is located

was at one time owned by the Cherokee Indian Tribe and

is located in that part of the Cherokee land which con-

stituted the Cherokee Otulet prior to inclusion in the Okla-

homa Territory and ultimately the State of Oklahoma. In

1884 the Cherokee Tribe sold their right, title and interest

in this land to the Federal Government which established

a federal enclave within which was located an industrial

school for Indian children as well as homestead sites for

those educated at Chilocco.

However, since the sale of this land by the Cherokees

no one tribe has been associated with this land and the

children of many different tribes have been educated at

Chilocco. In 1890, Congress passed the Organic Act, 26 Stat.

81. Section 9 of that act established a court system for the

Territory of Oklahoma and Section 12 extended the juris-

diction of the territorial courts to all controversies arising

between Indians except “controversies arising between In-

dians of the same tribe, while sustaining their tribal re-

lations.” Section 29 of that Act provided that the juris-

diction of the previously created United States courts would

continue in the Indian Territory, although under Section

30, the judicial tribunals of the Indian nations within In-

dian Territory were to “retain exclusive jurisdiction in all

civil and criminal cases arising in the country in which

members of the nation by nativity or by adoption shall be

the only parties... .”

These courts were the predecessors of the courts of the

State of Oklahoma and jurisdiction was transferred from

online

the former to the later by Section 20 of the Enabling Act.

34 Stat. 277. However, only the jurisdiction of the Okla-

homa and Indian territorial courts as defined in the Organic

Act was or could have been transferred to the state courts.

Criminal jurisdiction of the territorial courts extended to

all controversies except those between Indians of the same

tribe occurring on land over which the tribe had jurisdic-

tion, i.e., those acts committed on tribal land. Oklahoma

State courts, ther fore, had the same jurisdiction the courts

of the other states had with the exception of prosecutions

for crimes involving Indians of the same tribe committed

on land over which that tribe had jurisdiction. Even though

the alleged perpetrator and the victim of this crime are

both members of the Ponca tribe, the Ponca tribe or the

Federal Government through the Assimilative Crimes Act

does not have jurisdiction over this controversy because the

Ponca tribe does not have and never has had any territorial

jurisdiction over the Chilocco Indian School lands.

However, it is possible that the Federal Government

retained jurisdiction in certain areas concurrent with the

jurisdiction conferred on the Territorial Courts and ulti-

mately tk : Oklahoma state courts. Consequently, in certain

circumstances both State and Federal Courts would have

jurisdiction to prosecute crimes involving Indians.

The opinion of the Court of Criminal Appeals did not

address these issues but held that Chilocco Indian School

was a “dependent Indian community” because the Federal

Government reserved the use of this land for an Indian

school when the land was purchased from the Cherokee

tribe. This Court has never held that land on which Indians

happen to be located constitutes a “dependent Indian com-

—}0—

munity” and, therefore, “Indian country” and when pre-

sented with this question it would appear, based on prior

decisions of this Court dealing with similar issues, that this

Court would decide the question in a manner inconsistent

with the result reached by the Oklahoma Court of Criminal

Appeals.

CONCLUSION

The decision of the Oklahoma Court of Criminal Ap-

peals, embraced a substantial federal question not previ-

ously decided by this Court holding that land on which is

located an Indian school constitutes a dependent Indian

community because Indians reside there and the use of that

land has been reserved for an Indian school. This is not

the result that would be reached from a logical extension

of Supreme Court decisions in this area. Further, this de-

cision constitutes a misinterpretation of 18 U.S.C. § 1151(b).

In addition, the decision is in conflict with the decision of

the United States Court of Appeals for the Tenth Circuit

in Ellis v. Page, 351 F.2d 250 (10th Cir. 1965), which held

that once land was sold by the Indians to the Government

it ceased to be Indian country.

Finally, the decision of the Court of Criminal Appeals

is extremely important in that it limits the enforcement of

the criminal statutes of Oklahoma, exempting crimes com-

mitted by Indians on lands associated with any group of

intertribal Indians. This opinion results from an incorrect

interpretation of federal statutes defining Indian country as

well as federal law which preceeded the establishment of

the State of Oklahoma. Consequently, a jurisdictional gap

a

now exists in Oklahoma in that the Federal Government’s

criminal jurisdiction is limited to crimes committed on In-

dian country while the State’s criminal jurisdiction is limi-

ted to prosecution of crimes not committed on Indian

country as well as to crimes not committed on lands as-

sociated with Indians but which do not constitute Indian

country. For these reasons the issues raised in this Peti-

tion are critical and the Petitioners pray that this Court

will grant their Petition for Certiorari and reverse the de-

cision of the Oklahoma Court of Criminal Appeals.

Respectfully submitted,

JAN ERIC CARTWRIGHT

Attorney General of Oklahoma

JOHN F. FISCHER, II

Assistant Attorney General

112 State Capite! Building

Oklahoma City, Oklahoma 73105

Counsel for Petitioners

October, 1979

CERTIFICATE OF SERVICE

I, John F. Fischer, II, one of the attorneys for the

State of Oklahoma, Petitioner herein, and a member of the

Bar of the Supreme Court of the United States, hereby

certify that on this __... day of October, 1979, I served

three (3) copies of the foregoing Petition for Certriorari

to the Supreme Court of the United States on the several

parties thereto, as follows:

Patti Palmer & Susan Work

1212 North Hudson

Oklahoma City, Oklahoma 73103

F. Browning Pipestem

404 Security National Bank Building

Norman, Oklahoma 173069

by placing same in the United States Mail postage fully

prepaid.

Attorney for Petitioner

APPENDIX A

{Filed Stamp omitted in printing]

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

C. M. G., a juvenile, )

| Appellant, )

-vs- ) No. J-78-362

THE STATE OF OKLAHOMA, )

Appellee. _,)

—OPINION—

BRETT, Judge:

The juvenile, the State, and this Court agree that the

threshold determination is whether or not the Chilocco

Indian School (Chilocco) is “Indian country” within the

definition of 18 U.S.C. $1151 (1970).! If the school is

Indian country, the United States has exclusive jurisdic-

tion over prosecution of the offense. If it is not Indian

country, then the State of Oklahoma and the United States

have concurrent jurisdiction to prosecute the crime

charged, and this Court must deal with the allegations of

error in the certification proceedings. |

Title 18 U.S.C. § 1152 (1970), provides that “Except

as otherwise expressly provided by law, the general laws

1 Title 18 U.S.C. § 1151 (1970), reads as follows:

“Except as otherwise provided in sections 1154 and 1156 of this

title, the term ‘Indian country’, as used in this chapter, means (a)

all land within the limits of any Indian reservation under the juris-

diction of the United ares greene. notwithstanding the issu-

ance of any patent, and, including neler running through

the reservation, (b) all dependent Indian communities within the

borders of the United States whether within the original or subse-

quently acquired territory thereof, and whether within or without

the limits of a state, and (c) all Indian allotments, the Indian titles

to which have not been extinguished, including rights-of-way run-

ning through the same. June 25, 1948, c. 645, 62 Stat. 757; May

24, 1949, c. 139, § 25, 63 Stat. 94.”

A-2

[APPENDIX)

of the United States as to the punishment of offenses

committed in any place within the sole and exclusive jur-

isdiction of the United States, except the District of Co-

lumbia, shall extend to the Indian country.” Title 25 U.S.C.

§ 1321, 7 (a), (1970), passed in 1968, grants to the states

consent to assume, with the consent of the Indians in-

volved, jurisdiction to prosecute crimes committed in In-

dian country, 25 U.S.C. § 1323 (1970), gives the consent

of the United States to states to amend their constitutions

or existing statutes to remove any legal impediments to

the state assuming that jurisdiction. To date, the State

of Oklahoma has made no attempt to repeal Art. I, § 3,

of the Constitution of the State of Oklahoma, which pro-

hibits state jurisdiction over Indian country, so the federal

government still has exclusive jurisdiction over Indian

country located within Oklahoma boundaries. See State

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

The facts in this case are not in dispute. The parties

stipulated that: (1) There are 266 in-state and out-of-state

students enrolled at Chilocco, all of whom have at least

one-quarter Indian blood. (2) Eighty-two of Chilocco’s 102

employees are Indian. (3) Chilocco is not associated with

any particular tribe, and its students are members of var-

ious tribes with which they maintain ongoing relationships.

(4) Pursuant to employment contracts, Chilocco provides

staff houses and apartments, all but three of which are

occupied by Indian employees. (5) Chilocco is funded

through the Bureau of Indian Affairs, an agency within

the United States Department of the Interior. The ad-

ministration of the funds is through the Anadarko Area

Office, Bureau of Indian Affairs, Anadarko, Oklahoma. (6)

While the Anadarko Agency administers funds to Chilocco,

the respective tribes and agencies are responsible for the

welfare of the individual students who are subject to their

authority, and the tribes and agencies provide financing

for higher education and housing once the students leave

the school. (7) There is an Indian health clinic located

A-3

[APPENDIX]

on the Chilocco campus. It is open three days a week and

is operated by the United States Public Health Service

in Pawnee, Oklahoma. The Pawnee Agency of the Bureau

of Indian Affairs, located in Pawnee, approximately 70

to 75 miles from the school, provides service to the sur-

rounding Indian community, including members of the

Ponca, Pawnee, Otoe, Missouri, Kaw and Tonkawa tribes,

but does not administer services to Chilocco, per se.

(9) In 1934, an Indian Subsistence Homestead Colony was

established on 3,000 acres of Chilocco Indian Reserve lands.

It was divided into farms of about 160 acres and a com-

mon pasture of about 600 acres. (10) Houses and farm

buildings for 15 homesteaders were erected for the Indian

Subsistence Colony. (11) Participants in the Indian Sub-

sistence Homestead Colony were required to sign an Indian

subsistence homestead agreement with the federal govern-

ment which provided that the buyer desired to become a

member of the community and to occupy a homestead in

the community. The agreement further provided for the

use of common land and property by members of the com-

munity and required the participants to abide by applic-

able statutes and ordinances and administrative regula-

tions. (12) As of 1957, six of the homesteads continued

to be occupied by Indian homesteaders. Currently, none of

the homesteads is occupied under the terms of the original

agreement. (13) Non-Indians can be admitted and enrolled

at Chilocco. (14) Legislation has been proposed to turn

over the improvements of the homestead colony to the

school, as the improvements have fallen into disuse, but

it has not been acted upon.

The following other evidence appears. The Chilocco

school Reserve is located in the northern strip of land in

western Oklahoma which was commonly known as the

Cherokee outlet. The Cherokee outlet was first acquired

by the Cherokee Nation in the 1830’s. In 1866, the United

States and the Cherokee Nation agreed that:

A-4

[APPENDIX)

“The United States may settle friendly Indians in

any part of the Cherokee country west of 96°, to be

taken in a compact form in quantity not exceeding one

hundred and sixty acres for each member of each of

said trives thus to be settled: The boundaries of each

of said districts to be distinctly marked and the land

conveyed in fee simple to each of said tribes to be

held in common or by their members in severalty as

the United States may decide.” (Emphasis added) 14

Stat. 799, 804, Art. 16

Pursuant to the 1866 treaty, Poncas, Pawnees, Otoes and

Missouri Indians were settled in portions of the Cherokee

Outlet which were sold by the Cherokees.

In 1882, the Congress of the United States authorized

an Indian school to be built in the Cherokee outlet near

the southern boundary of the Kansas and near the Ponca

and Pawnee reservations. 22 Stat. 68, 85, ch. 163. There-

after, on July 12, 1884, President Chester A. Arthur issued

an executive order setting aside land for the Chilocco

Indian Reserve with these words:

“(T]he following-described tracts of country in the

Indian Territory, viz, sections 13, 14, 15, 16, 21, 22,

23, 24, 25, 26, 27, 28, and the east half of sections 17,

20, and 29, all in the township No. 29 north, range

No. 2 east of the Indian meridian, be, and the same

are hereby, reserved and set apart for the settlement

of such friendly Indians belonging within the Indian

Territory as have been or who may hereafter be edu-

cated at the Chilocco Indian Industrial School in said

Territory.” (Emphasis added) Kappler, Laws and

Treaties, vol. 1, 842 (2nd ed.).

In 1891, the Cherokee Nation agreed to sell the entire

Cherokee outlet to the United States. That agreement was

ratified by Congress in 1893. 27 Stat. 612, 642, ch. 209. In

Section 10 of that agreement, the United States agreed

A-5

{APPENDIX}

to purchase from the Cherokee Nation “all the right, title,

interest, and claims .. .” in the Cherokee outlet. Further,

the Cherokee Nation agreed to accept payment “as a full

and complete relinguishment and extinguishment of all

their title, claim, and interest in and to said lands; .. .”

However, the parties also agreed in Section 10 that:

“Sections thirteen, fourteen, fifteen sixteen, twenty-

one, twenty-two, twenty-three, twenty-four, twenty-

five, twenty-six, twenty-seven, twenty-eight and the

east half of seventeen, twenty and twenty-nine, all

in township numbered twenty-nine north of range

numbered two east of the Indian Meridian, the same

being lands reserved by Executive order dated July

twelfth eighteen hundred and eighty-four, for use of

and in connection with the Chilocco Indian Industrial

School, in the Indian Territory, shall not be subject

to public settlement, but shall, until the further action

of Congress, continue to be reserved for the purposes

for which they were set apart in the said Executive

order... .” (Emphasis added)

It has become a truism in Indian law that doubtful

expressions in Indian treaties and Acts of Congress dealing

with Indians are to be resolved in favor of the Indians.

DeCoteau v. District County Court for Tenth Jud. Dist.,

420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975); Mc-

Clanahan v. State Tax Commission of Arizona, 411 U.S.

164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Choctaw Nation

of Indians v. United States, 318 U.S. 423, 63 S.Ct. 672,

87 L.Ed. 877 (1943). Cases in which land claimed to be

Indian country was found not to be have involved land

to which Indians clearly and specifically had ceded all

claim, right, title, and interest to the lands without any

reservation whatsoever. See DeCoteau v. District County

Court for Tenth Jud.Dist., supra; Ellis v. Page, 351 F.2d

250 (10th Cir. 1965).

A-6

(APPENDIX)

The definition of Indian country has developed over

many years, and the present statutory definition of 18

U.S.C. § 1151 (1970), is a codification of prior case law.

In Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449,

57 L.Ed. 820 (1913), the United States Supreme Court

rejected the contention that the term “Indian country”

referred only to aboriginal lands of Indians and declared

that lands which were set apart as Indian reservations out

of the public domain were to be considered Indian coun-

,try.2 In United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1,

58 L.Ed. 107 (1913), and United States v. McGowan, 302

U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410 (1938), the United

States Supreme Court held that dependent Indian com-

munities were Indian country.* In United States v. Pelican,

232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676 (1914), the Supreme

Court held that Indian allotments were Indian country.‘

Obviously, the land in question is not an allotment,

and we can agree with the State that the property is not

a diminished reservation of the old Cherokee Outlet.® See

United States v. Celestine, 215 U.S. 278, 30 S.Ct. 63, 54

L.Ed. 195 (1909). In light of the clear language of the

treaty ratification, we cannot say, nor does the juvenile

contend, that the Cherokee Nation retains any legal interest

in Chilocco. That leaves only the question of whether

Chilocco is a dependent Indian community.

The State cites the Eighth Circuit case of United States

v. Myers, 206 F. 387 (8th Cir. 1913), for the proposition

that Indian schools are not “Indian country.” In that case,

however, the school was located on land which had been

2 Codified in 18 U.S.C. §1151(a) (1970).

3 Codified in 18 U.S.C. §1151(b) (1970).

4 Codified in 18 U.S.C. §1151(c) (1970).

5 We do note, however, that the land was referred to by the United

States Supreme Court in Winebrenner v. Forney, 189 US. 148, 23 S.Ct.

590, 47 L.Ed. 754 (1903), as the Chilocco Reservation.

A-7 .

[APPEND!X)

reserved from land sold by the Kiowa, Comanche and

Apache tribes of Indians “for the use of the common

schools, [and] for university, agricultural colleges, normal

schools and public buildings of the territory and future

state of Oklahoma; .. .” As the Court pointed out, there

was not a reservation for the benefit of Indians, but for

the benefit of the territory and future state of Oklahoma.

According to the Court, Indian country is “country to

which the Indians retained the right of use and occu-

pancy, involving — under certain restrictions — freedom

of action and of enjoyment in their capacity as a distinct

people, unless by virtue of some reservation expressed at

the time of extinguishment of such title, and clearly ap-

pearing. ...” supra at 394. Citing United States v. Celestine,

supra, the Court said that in order to determine whether

land was Indian country, one must look at “the scope and

purpose of the act creating it, and the nature of the title,

use, and occupancy, how held, exercised, and enjoyed.”

supra at 394. We need not determine whether Myers would

be decided the same today as it was in 1913; it is sufficient

to point out that the land in Myers, while it was used as

an Indian school, had not been reserved for the use of In-

dians when it was acquired by the United States, as was

the land in the instant case. Therefore, Myers does not

stand for the proposition that Indian schools are not Indian

country.

Furthermore, we cannot agree with the State’s con-

tention that as the Cherokee Nation reserved no interest

in the land in question, it cannot be considered Indian

country. Looking at the cases in which it has been found

that there is a dependent Indian community, and therefore

“Indian country,” we find that Indian country need not

inure to the benefit of a single tribe, or of named tribes;

nor need title to the land remain with the Indians who

are to benefit from its use. In United States v. McGowan,

supra, the Reno Indian Colony was located on 28.3 acres

of land owned by the United States and purchased out of

A-8

(APPENDIX)

funds appropriated by Congress. The congressional purpose

of the purchase was to “provide lands for needy Indians

scattered over the State of Nevada, and to equip and super-

vise these Indians in establishing a permanent settlement.”

In that case, the Supreme Court said that the designation

given to a community was immaterial; whether it was

called a colony or a reservation, it was still Indian country.

Quoting United States v. Pelican, supra, 232 U.S. at

449, the Court said that the community 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.” In the present case, the land in question

was set aside by Congress for “the settlement of friendly

Indians,” and the arguments of the State to the contrary,

the United States could not change the use of the land

to, for example, a military reservation without at least an

act of Congress.

Looking at other cases which deal with the definition

of Indian country, we find in United States v. Maritine, 442

F.2d 1022 (10th Cir. 1971), that the Court looked at “the

nature of the area in question, the relationship of the

inhabitants of the area to Indian Tribes and to the federal

government, and the established practice of government

agencies toward the area... .”

In United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710,

42 L.Ed.2d 706 (1975), the Court found that a bar operated

by non-Indian defendants on non-Indian land on the out-

skirts of an unincorporated village within an Indian reser-

vation was Indian country. The Court considered that the

bar was located on the outskirts of Fort Washakie, Wy-

oming, where the Wind River Agency of the Bureau of

Indian Affairs the tribal headquarters of the Wind River

Tribes were located. Of the 212 families living within a

20 square mile area, 170 were Indian, 41 were non-Indian

and one was mixed. The state school serving Fort Washakie

had a total enrollment of 243 students, 223 of whom were

hE ore) et rlle Pi ace hg

oe ANT a Fe So vind Tate ERA me Da anata Satie

rene macnn Ne abe w

A-9

[APPENDIX]

Indian. The bar served both Indians and non-Indians, and

the lands on which the bar was located were held in fee

by non-Indians.

In the instant case, the land in question is owned by

the United States. All the students are Indian, as are most

of the employees of the school. The employees’ salaries

and the students’ tuition are paid for by the Bureau of

Indian Affairs. The fact that the Indian subsistence home-

stead community, which was started in 1934, was not a

success, does not change the fact that the land in question

had been reserved by Congress for an Indian school and

for “the settlement of such friendly Indians belonging

within the Indian Territory as have been or who may here-

after be educated at the Chilocco Indian Industrial School

in said Territory.” The land was set aside for that purpose

by an executive order, that purpose was incorporated in

the 1891 treaty between the Cherokee Nation and the

United States, and that incorporation was ratified in 1893

by the United States Congress.

One of the United States Supreme Court’s latest state-

ments on the definition of Indian country is found in United

States v. John, _.. U.S. _.., 98 S.Ct. 2541, _.. L.Ed.2d ____.

(1978), in which the Court once more cited with approval

the McGowan case, supra, 302 U.S. 538, for the proposition

that in determining what was Indian country, one looked

to see that the “fundamental consideration of both Con-

gress and the Department of the Interior . . . has been the

protection of a dependent people.” The Court in John

reiterated the test set out in Pelican, supra, 302 U.S. at 539,

and followed in McGowan, supra, 232 U.S. at 449, that it

must be determined whether the land in question “had

been validly set apart for the use of the Indians as such,

under the superintendence of the Government.”

Looking at the historical background of the land in

question in the John case, in 1830 the Choctaw Indians

and the United States signed a treaty providing that the

A-10

(APPENDIX)

Choctaws would cede to the United States all lands still

occupied by them east of the Mississippi. The agreement

also provided for a method by which Choctaws who wished

to remain in Mississippi could receive allotments of land.

Many Choctaws remained in Mississippi, and in 1918 Con-

gress passed an appropriation bill which included funds

for an agency to provide medical care for the Choctaws

remaining in Mississippi, for the maintenance for schools,

and for the purchase of land and farm equipment. In the

1930’s, the federal government discontinued the allotment

program, and in 1939 Congress passed an act providing

that title to all the land previously purchased for the Mis-

sissippi Choctaws would be “in the United States in trust

for such Choctaw Indians of one-half or more Indian blood,

resident in Mississippi, as shall be designated by the Sec-

retary of the Interior.” In 1944, the Assistant Secretary of

the Department of the Interior officially declared these

lands in question to be a reservation.

According to the United States Supreme Court, there

was no reason why the land which had been purchased

for the Mississippi Choctaw Indians had not become a

reservation at the time it was declared by Congress to

be held in trust by the United States for the benefit of

those Indians. However, if there were any question about

the land being a reservation, it was completely clarified by

the 1944 proclamation stating that the land was a reser-

vation.

The Court stressed that the land was Indian country,

even if it were true, as the State of Mississippi argued,

that the Choctaws residing in Mississippi had become fully

assimilated into the political and social life of Mississippi,

that the United States had abandoned its supervisory

authority over the Mississippi Choctaws, and that for some

time Mississippi’s jurisdiction over that land had gone un-

challenged. The land was, and had been, Indian country,

and Mississippi had never had criminal jurisdiction there.

We think John, therefore, disposes of the State’s suggestion

eee cee

RARE 5 wht OE Rel AS A Aen IE a Nena

A-11

(APPENDIX)

that the State of Oklahoma has jurisdiction over crimes

that occur at Chilocco, because the United States has

elected not to prosecute them.

Finally, there is the case of Sac & Fox Tribe of Mis-

Sissippi in Iowa v. Licklider, 576 F.2d 145 (8th Cir. 1978).

That case showed that in 1842 the Sac and Fox Tribe ceded

all its land west of the Mississippi to the United States

and agreed to move to a reservation in Kansas. Some mem-

bers of the Fox Tribe and of the Sac Tribe returned to

Iowa, and in 1856 the Iowa Legislature consented to their

continued residence. In 1857, the tribes purchased a small

tract of land, and title was taken by the Governor of Iowa

.in trust for them. In 1865, the federal government sent

an Indian agent to Iowa to supervise the tribe, and in 1867

Congress approved the payment of treaty annuities to the

tribe in Iowa. Starting at least as early as 1874, the Bureau

of Indian Affairs spent money for the education of mem-

bers of the tribes in Iowa and constructed a boarding school

in Toledo, Iowa. In 1896, the United States accepted and

assumed jurisdiction over the Sac and Fox Indians in Iowa.

Since 1896, the Bureau of Indian Affairs has spent funds

for social services, land management, employment assist-

ance, health services, and police services, and education

for the tribes. Finding that the area was Indian country,

the Eighth Circuit said that there had been a “de facto

reservation” there since as early as 1865.

In the instant case, there is a tract of land which

was specifically reserved for the settlement of friendly

Indians at the time the Cherokee outlet was ceded to the

United States. Therefore, we must say that Chilocco meets

the definition of a dependent Indian community and that

the State of Oklahoma has no jurisdiction over crimes

committed there. We make this holding reluctantly, but,

as the Supreme Court stated in United States v. Celestine,

supra, 235 U.S. at 290, “[I]t is for Congress to determine

when and how that relationship of [national] guardianship

shall be abandoned. It is not within the power of the courts

A-12

{APPENDIX}

to overrule the judgment of Congress. .. .” As the Supreme

Court stated more recently in DeCoteau v. District County

Court for Tenth Jud.Dist., supra, 420 U.S. at 450, “Congress

and the tribe spoke clearly. Some might wish they had

spoken differently, but we cannot remake history.”

As we find that the State of Oklahoma has no juris-

diction to prosecute crimes which occur at Chilocco, the

certification proceedings in this case were void ab initio,

and we will not consider any errors alleged to have oc-

curred in those proceedings. Accordingly, we WE RE-

VERSE and REMAND this case with instructions to DIS-

MISS.

AN APPEAL FROM THE DISTRICT COURT,

KAY, COUNTY, OKLAHOMA,

HONORABLE ROGER MULLINS, JUDGE

C.M.G., appeals from an order of the Juvenile Division

certifying him to stand trial as an adult for the offense of

Murder in the First Degree. REVERSED and REMANDED

with instructions to DISMISS.

PATTI PALMER,

OKLAHOMA CITY, OKLAHOMA,

SUSAN WORK,

OKLAHOMA CITY, OKLAHOMA,

Attorneys for Appellant,

JOSEPH A. WIDEMAN, DIST. ATTY.,

KAY COUNTY, OKLAHOMA,

MICHAEL R. COLLINS, ASST. DIST. ATTY.,

ALAN B. FOSTER, ASST. DIST. ATTY.,

Attorneys for Appellee.

OPINION BY BRETT, J.

CORNISH, P. J., CONCURS

BUSSEY, J., CONCURS.

APPENDIX B

{Filed Stamp omitted in printing}

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

C. M. G., a juvenile, )

Appellant, )

-Vs- ) No. J-78-362

THE STATE OF OKLAHOMA, )

Appellee. ,)

ORDER DENYING PETITION FOR REHEARING

AND DIRECTING THE ISSUANCE OF MANDATE

NOW, on this 3rd [sic] day of July, 1979, the Court

having examined the Petition for Rehearing and Briefs

in Support thereof and being fully advised in the premises,

finds that the Petition for Rehearing should be, DENIED.

The Clerk of this Court is directed to issue the Man-

date FORTHWITH.

IT IS SO ORDERED.

WITNESS OUR HANDS, AND THE SEAL OF THIS

COURT, this 23rd day of July, 1979.

(s) Tom R. Cornish

TOM R. CORNISH, PRESIDING JUDGE

(s) Tom Brett

TOM BRETT, JUDGE

ATTEST:

(s) Ross N. Lillard, Jr.

CLERK