IN THE COURT OF CRIMINAL APPEALS (2023)

ORIGINAL HN

2023 OK CR 10

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

THE STATE OF OKLAHOMA,

Appellant, FOR PUBLICATION

Case No. S-2021-209

Vv.

WINSTON WHITECROW BRESTER,

ee ee ee ee ee

FILED

IN COURT OF CRIMINAL APPEALS

Appellee. STATE OF OKLAHOMA

MAY 1 1 2023

JOHN D. HADDEN

OPINION CLERK

ROWLAND, PRESIDING JUDGE:

{1 This is a consolidated appeal of orders issued by the District

Court of Ottawa County, the Honorable Becky Baird, Special Judge,

dismissing, for lack of jurisdiction, Brester’s final conviction in Ottawa

County District Court Case No. CF-2018-298 as well as three pending

prosecutions against him in Ottawa County District Court Case Nos.

CF-2020-129, CF-2020-177, and CF-2020-178.! The district court

1 Brester pleaded guilty to Attempting to Elude a Police Officer, After Former

Conviction of Two or More Felonies in Case No. CF-2018-298 and received a

suspended sentence. The State of Oklahoma charged Brester in Case No. CF-2020-

129 with one count of First Degree Burglary in violation of 21 O.5.2011, § 1431

and one count of First Degree Robbery in violation of 21 O.S.2011, § 797, each

After Former Conviction of Two or More Felonies. Two months later, the State

charged Brester in Case No. CF-2020-177 with one count of Prisoner Placing Bodily

granted relief in Brester’s four underlying cases based upon a finding

that Oklahoma lacked jurisdiction under federal law because Brester

is an Indian and the charged offenses occurred in Indian country,

namely either on the Ottawa or Peoria Reservation. See McGirt v.

Oklahoma, 140 S.Ct. 2452, 2459 (2020) (noting State courts generally

lack jurisdiction to prosecute Indians who commit certain crimes in

Indian country). The State announced its intent to appeal the district

court’s ruling in open court and perfected the instant appeal. We

exercise jurisdiction under 22 O.8.2011, § 1053 and affirm the district

court’s ruling in part and reverse it in part for reasons discussed

below.?

Fluid on Government Employee, After Former Conviction of Two or More Felonies

in violation of 21 O.S.2011, § 650.9. That same day, the State charged Brester in

Case No. CF-2020-178 with one count of Assault and Battery on a Police Officer,

After Former Conviction of Two or More Felonies in violation of 21 O.S.Supp.2015,

§ 649,

2 The Attorney General of Oklahoma filed a “Notice to the Court of Necessity for

Expedited Ruling” in this matter on April 10, 2023, and a correction to that Notice

on April 13, 2023. The Oklahoma District Attorney’s Association, the Association

of Oklahoma Narcotic Enforcers (AONE) and 23 Oklahoma District Attorneys filed

a motion as amici curiae, supporting the Attorney General’s request for expedited

review and requesting consideration in this case of their supplemental brief filed

in State v. Hull, Case No. S-2021-110, a case that was dismissed at the Attorney

General’s request. The Attorney General filed an objection to the motion on April

24, 2023, stating the Court should decide the issues briefed in this matter only

and leave it to the State to select the appropriate case to litigate issues addressed

in the supplemental briefing in Hull. On April 26, 2023, Amicus Curiae in this case,

the Ottawa Tribe of Oklahoma and Miami Tribe of Oklahoma, sought leave to file

a supplemental brief to address the issues raised in the supplemental brief in Hull.

The Tribes amended their requests after the State filed its objection to the inclusion

2

Post-Conviction Case

q2 Brester filed for post-conviction relief in November 2020

seeking dismissal of his conviction in Case No. CF-2018-298.3 He

alleged a McGirt claim challenging the State’s jurisdiction because of

his Indian status and the location of the crime. Brester pleaded guilty

in the case in June of 2019 and received a suspended sentence. He did

not move to withdraw his plea and that conviction became final on

June 28, 2019.

{3 The district court granted Brester post-conviction relief and

dismissed his final conviction on the basis that the State lacked

jurisdiction and that a court’s jurisdiction may be challenged at any

time.4 Five months after the district court’s ruling, we decided State ex

rel. Matloff v. Wallace, 2021 OK CR 21, 497 P.3d 686, cert. denied, 142

S.Ct. 757 (2022), and held the ruling in McGirt would not be applied

of the issues contained in the Huil supplemental briefing. The motion of the

Oklahoma District Attorney’s Association, the Association of Oklahoma Narcotic

Enforcers (AONE) and 23 Oklahoma District Attorneys is REJECTED because

these parties have neither sought nor been granted the status of amicus curiae in

this case. Rule 3.4(F)(4), Rules of the Oklahoma Court of Criminal Appeals, Title 22,

Ch. 18, App. (2023). The motions and amended motions of both the Ottawa Tribe

of Oklahoma and Miami Tribe of Oklahoma are DENIED.

3 Brester also moved to dismiss the State’s motion to revoke suspended sentence.

4 The district court’s ruling dismissing the conviction rendered the State’s pending

motion to revoke suspended sentence moot.

3

retroactively to void convictions that were final when McGirt was

decided. Id. 2021 OK CR 21, 7 15, 497 P.3d at 689. Our holding in

Matloff controls and requires reversal of the district court’s ruling

granting Brester post-conviction relief in CF-2018-298. Because

Brester’s conviction was final in that case when McGirt was decided,

his conviction stands, and the State may resume its efforts to revoke

his suspended sentence.

McGirt Claim

{4 Brester sought dismissal of his state criminal charges by filing

motions to dismiss in each of his three pending cases. Brester objected

to the State’s jurisdiction based on federal law and McGirt because he

is a member of the federally recognized Seneca-Cayuga Nation and his

alleged crimes were committed in Indian country.® The State filed a

response opposing Brester’s motions, arguing the site of each of the

alleged crimes is no longer Indian country because the Ottawa and

Peoria Reservations have been disestablished. The Ottawa, Peoria, and

5 Indian country includes “all land within the limits of any Indian reservation under

the jurisdiction of the United States Government, notwithstanding the issuance of

any patent, and, including rights-of-way running through the reservation.” 18

U.S.C. § 1151 (a).

4

Miami Tribes filed amicus curiae briefs maintaining each of their

reservations remains intact and is Indian country.®

q5 The district court considered Brester’s motions to dismiss

over the course of two hearings. The State stipulated that Brester is an

Indian based upon his tribal membership in a federally recognized

tribe at the time the crimes were allegedly committed. The parties

stipulated that the charges alleged in CF-2020-177 and CF-2020-178,

crimes allegedly committed at the Ottawa County jail, occurred within

the historic boundaries of the Ottawa Reservation. The parties also

stipulated that the charges in CF-2020-129 occurred within the

historic boundaries of the “United Peorias and Miami’s reservation.”

The State argued that the Ottawa Reservation had been disestablished

through termination and that the Peoria Tribe’s interest in the United

Peoria/Miami Reservation had been likewise disestablished through

termination, leaving the status of the Miami Tribe’s interest in the

6 The Miami Tribe joined as amicus curiae to protect its interest. According to the

attorney representing both the Ottawa and Miami Tribes as amici, the Miami and

Peoria Tribes never confederated and exercised independent and separate

sovereignty. The two Tribes, however, shared the same reservation land with each

Tribe holding an equal and undivided interest in the same land. Their attorney

maintained that the two tribes continue to share concurrent jurisdiction over the

reservation.

reservation to be determined.’ In the end, the district court found that

Brester is an Indian and concluded that the State failed to show that

either the Ottawa or Peoria Reservations had been disestablished

making the land upon which the crimes were allegedly committed

Indian country.® Accordingly, the district court found the State lacked

jurisdiction and granted Brester’s motions to dismiss.

{6 We first consider whether the district court correctly held that

an Indian defendant committed a crime in Indian country. The

contested question in this case, like McGirt, is whether Congress

explicitly disestablished or diminished either reservation, so that it no

longer constituted Indian country at the time the charged offenses

were allegedly committed. In our analysis, we afford the district court’s

factual findings, that are supported by the record, great deference

and review those findings for an abuse of discretion. Parker v. State,

2021 OK CR 17, 7 34, 495 P.3d 653, 665. We review, however, the

7 The State advanced two possibilities concerning the present Indian country

status of the United Peoria and Miami Reservation: 1) that the whole of the

reservation land reverted to the Miami Tribe following the termination of the Peoria

Tribe and is Indian country; or 2) only the land partitioned to the Miami Tribe

according to a Bureau of Indian Affairs (BIA) map presently constitutes Indian

country and the land partitioned to the Peoria does not. The prosecutor maintained

the boundaries of the Miami Reservation was for the court to determine.

8 The district court’s ruling rendered moot the issue concerning the reservation

boundaries of the Miami Tribe’s land.

6

correctness of its legal conclusions concerning the status of the

Tribes’ reservations as well as its interpretations of the relevant

statutes without deference. Id.; Smith v. State, 2007 OK CR 16, 4 40,

157 P.3d 1155, 1169.

Ottawa and Peoria Reservations

{7 The State agrees that Congress expressly established a

reservation for the Ottawa Indian Tribe and the Peoria Indian Tribe? by

treaty in 1867 when several tribes ceded specific land and removed to

Indian Territory to reside permanently and continue their tribal

relations with the federal government.!° Art. 2, 3,4, 16, and 22, Treaty

with the Seneca, Mixed Seneca and Shawnee, Quapaw, Etc., 15 Stat.

9 The Peorias are a confederated tribe with three other nations, namely the

Kaskaskias, Weas, and Piankeshaws. The four nations united themselves into a

single tribe and were recognized as one tribe by the United States in the Treaty

with Kaskaskia, Peoria, Etc. 1854, Art. 1, 10 Stat. 1082 (May 30, 1854).

10 The Shawnees ceded part of their reservation in Indian Territory to the United

States which the Ottawas then purchased with monies from the sale of their trust

lands in Kansas. Art. 3, 16, Omnibus Treaty. The Peorias likewise sold their lands

in Kansas and purchased from the United States land it had purchased from the

Seneca and Quapaw Tribes. Art. 2, 4, Omnibus Treaty. Both Tribes’ new home in

Indian Territory consisted of land in the northeast corner of modern-day

Oklahoma. In the 1890’s, the land of both Tribes was subject to the General

Allotment Act of 1887 a.k.a. the Dawes Act, where the United States government

issued trust allotments to tribal members in severalty and sold the remaining

surplus of tribal land on the open market for non-Indian acquisition. The Ottawas

incorporated in 1938 and the Peorias in 1939 under the federal Oklahoma Indian

Welfare Act of 1936, which permitted Oklahoma tribes to organize as recognized

entities and incorporate their own governments. 49 Stat. 1967, 25 U.S.C, §§ 5201-

5210.

7

513 (Feb. 23, 1867} [hereinafter “Omnibus Treaty”]. The State

contends, however, that Congress terminated its relationship with

both Tribes and disestablished their reservations through termination

legislation on August 3, 1956 (Ottawas) and August 2, 1959 (Peorias),

and that nothing in the subsequent act of reinstatement passed May

15, 1978 altered the disestablishment of the Tribes’ reservations. See

Pub. L. No. 943, 70 Stat. 963, 25 U.S.C. § 841-853 (repealed 1978)

[hereinafter “Ottawa Termination Act]; Pub. L. No. 921, 70 Stat. 937,

25 U.S.C. § 821-826 (repealed 1978) [hereinafter “Peoria Termination

Act”]; and Reinstatement of Indian Tribes of Oklahoma, Pub. L. No. 95-

281, 92 Stat. 246, 25 U.S.C. § 861 (1978) [hereinafter “Reinstatement

Act”].!! According to the State, the district court should have affirmed

the state’s jurisdiction to prosecute Brester in both CF-2020-177 and

CF-2020-178 because the Ottawa Reservation no longer exists. The

State submits the district court should have found the Peoria

Reservation no longer exists as well and addressed whether the land

where Brester allegedly committed the charged crimes in CF-2020-129

1l The Reinstatement Act reinstated the Ottawa Indian Tribe, the Peoria Indian

Tribe, and the Wyandotte Indian Tribe. It also recognized the Modoc Indian Tribe

of Oklahoma.

8

is nonetheless Indian country because the site is within the reservation

land of the Miami Indian Tribe. We disagree.

78 During the short-lived termination era of federal Indian

policy, Congress passed a number of termination acts, terminating its

relationship with various tribes.!? In 1956, Congress passed legislation

terminating its trust and intergovernmental relationship with the

Ottawas to be effective three years after enactment. The purpose of the

Ottawa Termination Act was “to provide for the termination of Federal

supervision over the trust and restricted property of the Ottawa Tribe

of Indians located in northeastern Oklahoma and the individual

members thereof, and for a termination of Federal services furnished

to such Indians because of their status as Indians.” Furthermore, it

removed all restrictions on the sale or encumbrance of tribal trust and

restricted land originally allotted, as well as trust or restricted land

presently owned by tribal members regardless of location. Not only did

the Act end federal supervision of tribal property and federal services

available to tribal members, but it also subjected tribal members to

12 From 1953 to 1964, Congress terminated federal recognition of and jurisdiction

over 109 tribes.

http: / /www.nativepartnership.org/ site / PageServer?pagename=PWNA_Native_His

tory_terminationpolicyNP#:~:text=From%20 1953%2D 1964%20 109%20tribes, Nati

ve%20Americans%20lost%20tribal%20affiliation (last visited Apr. 25, 2022).

9

state law jurisdiction. Pub. L. No, 943, 70 Stat. 963, 25 U.S.C. § 841-

853. The stated belief underlying federal termination policy was that it

would result in Indians freely managing their own affairs and lead to

prosperity commensurate with the general population. H.R.Rep.No.

95-1019 (1978).

q° Congress likewise terminated the Peoria Tribe on August 2,

1959. Pub. L. No. 921, 70 Stat. 937. The purpose of the Peoria

Termination Act was to “provide for the termination of Federal

supervision over the affairs of the Peoria Tribe of Indians located in

northeastern Oklahoma and the individual members thereof... .” Like

the Ottawa Termination Act, it removed all restrictions on the sale or

encumbrance of tribal trust and restricted land presently owned by

tribal members regardless of location. It ended federal supervision of

tribal property, federal services available to tribal members as well as

subjected tribal members to state law jurisdiction. Not surprisingly,

neither termination act mentioned the respective Tribe’s reservation

because few, if any, believed Oklahoma still had Indian reservations at

that time. See Oklahoma v. Castro-Huerta, 142 $.Ct. 2486, 2499 (2022)

(observing that prior to McGirt, “[mjost everyone in Oklahoma

10

previously understood that the State included almost no Indian

country”).!$

{10 The policy of termination, however, was a failure. It lasted

but twenty years before Congress reversed course and adopted a policy

focused on recognizing tribal sovereignty. Congress began passing

various acts in the 1970’s, reinstating terminated tribes, like the

Ottawas and Peorias, to the full participation in the broad range of

federal programs and services available to tribes and tribal members.

H.R.Rep.No. 95-1019 (1978). The Reinstatement Act involving both the

Ottawas and Peorias expressly repealed the Ottawa Termination Act

and Peoria Termination Act and fully restored all “rights and privileges”

to the Tribes and their members, including statutory and treaty rights

that were or might have been “diminished or lost” because of

termination. Pub. L. No. 95-281, 92 Stat. 246, 25 U.S.C. § 861.

q11 The State acknowledged in the district court that the

termination acts did not explicitly state that the reservations were

disestablished, but maintained disestablishment was the intended and

obvious result of termination. The State insisted below, and now on

13 The Supreme Court held in Castro-Huerta, 142 S.Ct. at 2504-05, that “the

Federal Government and the State have concurrent jurisdiction to prosecute

crimes committed by non-Indians against Indians in Indian country’).

ll

appeal, that the termination of governmental supervision over tribal

land results in reservation disestablishment because “land cannot be

reservation land without being under federal superintendence.”

According to the State, a tribe’s reservation cannot exist if the tribe and

its members are not recognized and protected as Indians under federal

law.'4 The State maintained that the Reinstatement Act had no impact

on the disestablishment of the Tribes’ reservations because the Act

failed to explicitly recreate or re-recognize them. In its view, the Act’s

provision for the reinstatement of the Tribes’ “rights and privileges” did

not revive the reservations because a reservation is not a right.

q12 The district court rejected the State’s position and observed

in its ruling that the State’s extensive research had not yielded any

clear statutory language of disestablishment by any Act of Congress

and the State’s disestablishment argument was based entirely on nonstatutory considerations. The district court noted there was “no

language” in the Ottawa Termination Act terminating anything other

14 The State acknowledges that the Ottawa and Peoria Indians still existed as racial

Indians after termination, but notes federal Indian status is not the same as being

racially Indian. As we stated in Parker, 2021 OK CR 17, 4 39, 495 P.3d at 666, “the

term ‘Indian’ has a specific meaning within the ambit of federal criminal

jurisdiction, one that includes both racial and political components of the Indian

community.”

12

than federal supervision over tribal trust land and restricted property

and federal services to tribal members. The district court ultimately

made no finding concerning whether the Ottawa Termination Act

extinguished or reduced the existing Ottawa Reservation because

Congress repealed termination and restored to the Ottawas all rights

and privileges under Federal treaty, statute, or otherwise which may

have been diminished or lost by termination, which necessarily

included its reservation established by the Omnibus Treaty of 1867. It

applied the same reasoning regarding the Peoria Reservation. Because

the State was unable to point to a clear expression of congressional

intent to terminate the reservations, coupled with the subsequent

unqualified repeal of termination and reinstatement of all treaty

rights, the district court found the State’s argument was insufficient

to prove disestablishment under McGirt.'5

q13 “To determine whether a tribe continues to hold a

reservation, there is only one place we may look: the Acts of Congress.”

McGirt, 140 S.Ct. at 2462. Congress must express its intent to

disestablish a reservation explicitly, with either an “[e]xplicit reference

15 The district court made no findings concerning the Miami Tribe’s Reservation

because the parties stipulated that the crimes allegedly took place on the Peoria

Reservation and it found that reservation intact.

13

to cession or other language evidencing the present and total

surrender of all tribal interests.” McGirt, 140 S.Ct. at 2463 (quoting

Nebraska v. Parker, 136 S.Ct. 1072, 1079 (2016)). It is Congress, and

Congress alone, who has the power to abrogate reservation treaties,

and “this Court [will not] lightly infer such a breach once Congress has

established a reservation.” McGirt, 140 S.Ct. at 2462 (citing Solem v.

Bartlett, 465 U.S. 463, 470 (1984)).

{14 The State, as previously noted, does not dispute that the

Ottawas and Peorias had reservations prior to termination. In

undertaking our analysis concerning the present status of the

reservations, we are keenly aware of the pronouncement affirmed in

McGirt that “[olnce a block of land is set aside for an Indian

reservation and no matter what happens to the title of individual

plots within the area, the entire block retains its reservation status

until Congress explicitly indicates otherwise.” McGirt, 140 S.Ct. at

2468 (quoting Solem, 465 U.S. at 470). Brester and the amici also

remind us that courts construe statutes in favor of the Indians,

resolving ambiguities in their favor and not lightly finding reservation

diminishment. Hagen v. Utah, 510 U.S. 399, 411 (1994).

14

415 The district court found the provisions in the termination

acts ultimately of no consequence because of Congress’s express,

unqualified repeal of those laws in 1978. Brester and the amici

therefore maintain that whatever impact termination had on the

reservations vanished by repeal, leaving the reservations, if diminished

by termination, restored and intact.'6 The district court

understandably focused on the Reinstatement Act rather than the

effects of termination on the reservations because if, as the district

court found, the reservations were included in reinstatement, the land

is presently Indian country for purposes of federal criminal

jurisdiction. !7

16 The Tribes take the position that the full and unqualified repeal of termination

requires this Court to proceed as if the Ottawa and Peoria Termination Acts never

existed. Thus, they contend the State cannot claim that the termination acts—

which in the eyes of the law never existed—serve as the basis for reservation

disestablishment.

17 Brester and the amici contend on appeal that the reservations were not

disestablished through termination because neither the Ottawa Termination Act

nor the Peoria Termination Act mentioned the reservations, much less contained

language disestablishing them. They maintain the provisions in both Acts allowing

for the alienation of allotted lands on their respective reservations did not

disestablish the reservations because Indian country includes lands held in fee by

non-Indians within reservation boundaries. Because Congress was well aware both

tribes had a reservation prior to termination, they contend its silence and exclusion

of language expressly ending the reservations compel a finding that the reservation

boundaries survived termination. Like the district court, they agree the effect of

termination ultimately does not matter because any impact was nullified through

reinstatement.

15

416 We begin by analyzing the Reinstatement Act using wellknown rules of statutory construction, starting with “a statute should

be given a construction according to the fair import of its words taken

in their usual sense, in connection with the context, and with

reference to the purpose of the provision.” Gillioms v. State, 2022 OK

CR 3, ¥ 7, 504 P.3d 613, 618. We well understand that the

“fundamental principle of statutory construction is to ascertain and

give effect to the intention of the Legislature as expressed in the

statute.” Luna-Gonzales v. State, 2019 OK CR 11, J 4, 442 P.3d 171,

173. “There is no need to consult extratextual sources when the

meaning of the statute’s terms is clear.” McGirt, 140 S.Ct. at 2469.

417 The Reinstatement Act opens by expressly re-extending

Federal recognition to the Ottawas and Peorias. Public Law 95-281, 92

Stat. 246, 25 U.S.C. § 861. Section 1(b) explicitly repeals the Ottawa

Termination Act and the Peoria Termination Act. Id. One obvious effect

of statutory repeal is that the repealed law no longer exists, and its life

is at an end. Generally, when an act of the legislature is repealed, it

must be considered as if it never existed. Ex parte McCardle, 74 U.S.

(7 Wall.) 506, 514 (1868).

16

{18 In addition to the repeal of termination, Section 1(c) of the

Reinstatement Act states:

There are hereby reinstated all rights and privileges of

each of the tribes ... and their members under Federal

treaty, statute, or otherwise which may have been

diminished or lost pursuant to the Act relating to them

which is repealed by subsection (b) of this section. Nothing

contained in this Act shall diminish any rights or privileges

enjoyed by each of such tribes or their members now or

prior to enactment of such Act, under Federal treaty,

statute, or otherwise, which are not inconsistent with the

provisions of this Act.

419 The State offers two arguments to support its claim that the

Reinstatement Act and its repeal of termination did not automatically

revive everything that was previously terminated, specifically the

Tribes’ reservations. First, the State claims the Reinstatement Act’s

language in Section 1(d)—that “nothing contained in this Act shall alter

any property rights or obligations’—limits the Act’s otherwise broad

language of reinstatement. The State claims that restoring the

reservation status of land necessarily alters property rights by

subjecting use of the land to federal or tribal limitations. Hence,

because property rights were to be unaltered by the Reinstatement Act,

the State asserts recognition was restored to the Tribes and their

individual members but not their reservation land.

17

420 Second, the State claims rights affected by termination were

lost if not expressly reinstated. In other words, the Reinstatement Act’s

silence concerning reservation boundaries should be interpreted to

mean that the reservations were not restored, especially given that

other acts of reinstatement contain specific provisions establishing or

denying reservations. The State further argues that construing the

Reinstatement Act as creating reservations raises constitutional

questions about Congress’s ability to create reservations within a state

without first acquiring title to the land or the State’s consent.

According to the State, upholding the district court’s finding that the

Tribes’ reservations were reinstated would allow Congress “to declare

lands be reserved for Indians by fiat, stripping a state of a measure of

its sovereignty and jurisdiction” without its consent in violation of the

federal Constitution’s Enclave Clause. We disagree.

721 The lack of any provision addressing the reservations in

either the acts of termination or the Reinstatement Act proves little

because few, if any, thought Oklahoma had Indian reservations after

statehood. Under McGirt, such assumptions were wrong about the

18

existence of Indian reservations in Oklahoma.'!8 The plain language of

the Reinstatement Act does not preclude recognition of the

reservations. The State agrees the Tribes each had a reservation prior

to termination and its position is that the respective termination acts

ended them. The termination acts, however, were explicitly repealed in

the Reinstatement Act. Congressional repeal of termination returned

the land to its status prior to termination, which the State agrees was

reservation land.

422 In addition, we cannot read Section 1(d) as an attempt by

Congress to disestablish or diminish reservation boundaries. Section

1(d) contains the prefatory phrase “[e]xcept as specifically provided in

this Act.”19 Congress’s inclusion of this qualifying language reflects a

recognition that the Reinstatement Act may affect some property

rights, specifically the trust land referenced in Section 3.?° Congress,

18 The District Attorney surmised the reason that the Reinstatement Act, as well

as the termination acts, did not address the Ottawa and Peoria Reservations was

because few, if any, believed the reservations were intact when those acts were

passed. He conceded that McGirt demonstrated from a legal standpoint, “there were

all sorts of misconceptions . . . that persisted for a century or more” with respect

to the existence of Indian reservations in Oklahoma.

19 Section 1(d) states in full, “Except as specifically provided in this Act, nothing

contained in this Act shall alter any property rights or obligations, any contractual

rights or obligations, including existing fishing rights, or any obligation for taxes

already levied.”

20 Congress addressed land set aside and to be held in trust for the Ottawas and

Peorias in Section 3(a) of the Reinstatement Act. Congress noted the Act’s

19

aware tribal land had been allotted and much of it sold over the years,

aimed to ensure that reinstatement of the Tribes would not interfere

with any present owners’ property rights or past and existing

obligations involving the land. Because nothing in Section 1(d)

qualified or limited the repeal of termination specified in Section 1(b),

the effects of termination were annulled completely, including any

diminishment of reservation boundaries resulting from termination.

723 We also find the State’s argument—that reservation

restoration would violate the Enclave Clause—is without merit. Indian

country is part of a state’s territory. Castro-Huerta, 142 S.Ct. at 2494.

Nevertheless, Indian lands do not constitute the sort of territories

subject to exclusive federal jurisdiction that requires state consent

under the Enclave Clause. The Enclave Clause empowers Congress to

“exercise exclusive Legislation in all Cases whatsoever .. . over all

Places purchased by the Consent of the Legislature of the State in

which the Same shall be, for the Erection of Forts, Magazines,

reinstatement of tribal recognition satisfied the requirements of the Act of January

2, 1975 (88 Stat. 1920), namely that the Ottawas and Peorias be restored to federal

recognition before they could take any interest in the lands conveyed by the 1975

Act. The 1975 Act provided that the federal government would hold in trust 114

acres more or less in Ottawa County jointly for the Ottawas, Peorias, and six other

Oklahoma tribes.

20

Arsenals, dock-Yards and other needful Buildings[.]” U.S. Const., art.

1, § 8, cl. 17. Indian reservation land does not fall within the Enclave

Clause because federal jurisdiction is not exclusive since non-Indians

may reside and own property on a reservation and remain subject to

state, not federal or tribal, jurisdiction. States also have concurrent

jurisdiction over crimes committed by non-Indians against Indians in

Indian country. Castro-Huerta, 142 S.Ct. at 2504-05. Because Indian

land remains subject to some state authority, reinstating the

reservations would not require state consent. See Surplus Trading Co.

v. Cook, 281 U.S. 647, 650-51 (1930) (observing Indian reservation is

not federal enclave because state civil and criminal laws still apply to

non-Indians); Upstate Citizens for Equality, Inc. v. United States, 841

F.3d 556, 571-72 (2d Cir. 2016) (finding no Enclave Clause violation

because federal jurisdiction is not exclusive on Indian land).

{24 What is clear from McGirt is that we must take Congress at

its statutory word. Also clear is that reservation land need not be under

federal superintendence as most, if not all, of the City of Tulsa, for

example, is Indian country by virtue of its location within the historic

boundaries of the never disestablished Creek and Cherokee

Reservations. See Castro-Huerta, 142 S.Ct. at 2499 (observing that

21

43% of Oklahoma, including Tulsa, is Indian country). Present

ownership and historic treatment of the land are not dispositive. See

McGirt, 140 S.Ct. at 2464, 2468 (observing reservation status of land

is not altered by the historical treatment of land set aside as a

reservation or the ownership of individual plots within its boundaries).

The Ottawa and Peoria Termination Acts, as conceded in the district

court, did not explicitly disestablish the reservations. Regardless,

when Congress expressly repealed the termination acts involving these

two Tribes without any limitation or savings clause, those Acts were

rendered a legal nullity. Congress made clear in the Reinstatement Act

that it was not only repealing termination but also restoring the Tribes

to the status and rights they enjoyed prior to termination. Congress

used clear, explicit, and broad language in reinstating “all rights and

privileges.” The word “all” has an expansive and unlimited meaning.

As applied here, it means treaty and statutory rights and privileges of

whatever kind diminished or lost by termination. See Castro-Huerta,

142 S.Ct. at 2496 (stating “the text of a law controls over purported

legislative intentions unmoored from any statutory text” and we “will

presume” that “the legislature says what it means and means what it

says”) (internal citations omitted). Congress exercised its legislative

22

prerogative to undo the effects of its earlier termination acts and

returned the Tribes to their status prior to termination. The

Reinstatement Act’s plain language, which we are tasked with

interpreting, neither addressed reservation disestablishment nor

excluded the reservations from reinstatement. Congress may, however,

at any time address the Tribes’ reservations in light of McGirt and

explicitly disestablish one or both if it so chooses.

{25 In sum, the Treaty of 1867 created a reservation for both the

Ottawa and Peoria Tribes. These reservations, even if diminished or

terminated by each Tribe’s respective termination act, were restored by

Congress with the express and unqualified repeal of these termination

acts in the 1978 Reinstatement Act as well as with the express

reinstatement of all rights and privileges lost in connection with

termination. For these reasons, we hold, the district court did not err

in ruling that, for purposes of federal criminal law, the land upon

which the parties agree Brester allegedly committed the charged

crimes in CF-2020-129, CF-2020-177, and CF-2020-178 is Indian

country.?!

21 Our holding that the Peoria Reservation is intact and remains Indian country

renders moot the State’s claim that the district court erred in failing to hold an

23

Other Claim

{26 The State submits alternatively that it may have jurisdiction

in Case Nos. CF-2020-177 and CF-2020-178, even if the Ottawa

Reservation is intact. It contends for the first time on appeal that

Congress explicitly subjected fee lands within the historic Ottawa

Reservation to all state law, both criminal and civil, in section 6 of the

General Allotment Act of 1887 a.k.a the Dawes Act, 24 Stat. 388, 25

U.S.C. § 331. The district court neither considered this theory of state

jurisdiction nor examined the fee status of the Ottawa County Jail, the

location of the charged crimes in these cases. Should we reject its claim

that the Ottawa Reservation was disestablished, the State maintains

remand is necessary to resolve whether the Dawes Act permits state

jurisdiction on fee lands on the Ottawa Reservation, and if so, whether

the crimes occurred on reservation fee lands subject to state

jurisdiction under section 6 or occurred on tribal trust lands outside

the Dawes Act’s provisions.

{27 The State relies on a series of Supreme Court cases

discussing the effect of allotments and the Dawes Act in other

evidentiary hearing to determine whether the crime in Case No. CF-2020-129

occurred on the historic Peoria or Miami lands. See Proposition III.

24

contexts, principally state taxation authority and federal liquor

regulation on Indian reservations. Goudy v. Meath, 203 U.S. 146

(1906); United States v. Nice, 241 U.S. 591 (1916); Moe v.

Confederated Salish and Kootenai Tribes of the Flathead Reservation,

425 U.S. 463 (1976); County of Yakima v. Confederated Tribes and

Bands of Yakima Indian Nation, 502 U.S. 251 (1992). The State

contends that without remand for fact-finding concerning the specific

situs of the crime and its allotment status, the jurisdictional question

cannot be resolved.

{28 Appellee and amicus curiae argue that the State’s new

theory of jurisdiction should be barred by the doctrine of waiver.

Because the State challenges the district court’s dismissal on this

ground for the first time on appeal, we will review this claim for plain

error only. Simpson v. State, 1994 OK CR 40, { 2, 876 P.2d 690, 692-

93. To prevail, the State must show that a plain or obvious error

affected the outcome. Hogan v. State, 2006 OK CR 19, ¢ 38, 139 P.3d

907, 923. We will correct plain error only where it seriously affects

the fairness, integrity, or public reputation of the proceedings, or

otherwise results in a miscarriage of justice. Id.

25

429 We are not persuaded by the State’s claim that those

reservation lands allotted in severalty were made subject to state civil

and criminal jurisdiction by section 6 of the Dawes Act. The Dawes

Act, which in section 1 authorized the President to allot reservation

lands “to any Indian located thereon,” originally provided in section

6:

That upon the completion of said allotments and the

patenting of the lands to said allottees, each and every

member of the respective bands or tribes of Indians to

whom allotments have been made shall have the benefit of

and be subject to the laws, both civil and criminal, of the

State or Territory in which they may reside....

24 Stat. at 390 (emphasis added). Section 6 was amended in 1906 by

the so-called Burke Act Proviso, 34 Stat. 182, to read in relevant part:

That at the expiration of the trust period and when the

lands have been conveyed to the Indians by patent in fee,

... then each and every allottee shall have the benefit of

and be subject to the laws, both civil and criminal, of the

State or Territory in which they may reside... .??

22 The Burke Act Proviso legislatively overruled In re Heff, 197 U.S. 488 (1905), thus

barring state civil and criminal jurisdiction over allottees under section 6 until

expiration of the entire 25-year trust period and the issuance of patents in fee. The

proviso authorized the Secretary of the Interior to issue fee patents to some

allottees before expiration of the trust period without subjecting the allottee

to plenary state jurisdiction, while freeing the land of “all restrictions as to sale,

incumbrance, or taxation].]” 25 U.S.C. § 349; County of Yakima, 502 U.S. at 264.

26

25 U.S.C. § 349. (emphasis added).

430 The Supreme Court in McGirt explained the Government’s

policy of allotment toward the Creeks and its legal effect on their

reservation:

Tribe members were given deeds for their parcels that

“convey[ed] to [them] all right, title, and interest of the

Creek Nation ... One way or the other, individual Tribe

members were eventually free to sell their land to Indians

and non-Indians alike.

Missing in all this, however, is a statute evincing

anything like the “present and total surrender of all tribal

interests” in the affected lands. Without doubt, in 1832 the

Creek “cede[d]” their original homelands east of the

Mississippi for a reservation promised in what is now

Oklahoma... . And in 1866, they “cede[d] and convey[ed]”

a portion of that reservation to the United States... . But

because there exists no equivalent law terminating what

remained, the Creek Reservation survived allotment....

..For years, States have sought to suggest that allotments

automatically ended reservations, and for years courts

have rejected the argument.

McGirt, 140 S.Ct. at 2463-64 (emphasis added) (internal citations

omitted).

31 McGirt and earlier Supreme Court cases have consistently

rejected arguments that allotment and the subsequent alienation of

27

the original tribal patents in fee disestablished the reservations, and

we do so again here.

Remember, Congress has defined “Indian country” to

include “all land within the limits of any Indian reservation

. notwithstanding the issuance of any patent, and,

including any rights-of-way running through the

reservation.” 18 U.S.C. § 1151(a). So the relevant statute

expressly contemplates private land ownership within

reservation boundaries. Nor under the statute’s terms

does it matter whether these individual parcels have

passed hands to non-Indians. To the contrary, this Court

has explained repeatedly that Congress does not

disestablish a reservation simply by allowing the transfer

of individual plots, whether to Native Americans or others.

McGirt, 140 S.Ct. at 2464 (emphasis added).

{32 The history of allotment in the Ottawa Reservation is not

so different from the Muscogee Creek as to support any different

conclusion here. In a series of treaties, the Government promised the

Ottawas a reservation in perpetuity. The Government later imposed

the tribal allotments authorized by the Dawes Act. Eventually, those

restricted allotments were removed from trust, and sold or otherwise

transferred in fee from the original allottees. And although, Congress

terminated the Ottawa Tribe, it reinstated the Tribe and repealed

termination in toto.

28

433 We are informed of no case in which the Supreme Court

has held that section 6 of the Dawes Act extended state criminal

jurisdiction beyond the persons of the original allottees. The Court’s

cases offer at least two apparent reasons. The first reason is

Congress’s repudiation of the allotment policy and much of the

Dawes Act in the Indian Reorganization Act of 1934, 25 U.S.C., §

5101 et seg. See County of Yakima, 502 U.S. at 262 (noting the

“implausibility, in light of Congress’ postallotment era legislation,”

that section 6 extended state jurisdiction beyond the “literal

coverage” of original allottees); and Moe, 425 U.S. at 478-79

(concluding, in light of 1934 reforms, that section 6 could no longer

be read to grant plenary state jurisdiction over Indians residing on

reservation fee lands).

434 The second reason is that a Congressional grant of plenary

state jurisdiction in section 6 logically contradicts the “complex

intervening jurisdictional statutes directed at the reach of state law

within reservation lands[,]” Moe, 425 U.S. at 479, most notably,

Congress’s 1948 definition of “Indian Country” to include both Indian

and non-Indian fee land; and its passage, in 1953, of Public Law 280,

67 Stat. 588, authorizing States to assume civil and criminal

29

jurisdiction over Indians in Indian Country only under specified

conditions. See County of Yakima, 502 U.S. at 261. These Acts would

make little sense if section 6 were indeed the fountainhead of plenary

state criminal jurisdiction in Indian country.

435 This Court also declines the invitation to premise “the

existence or nonexistence of an Indian reservation . . . upon the

ownership of particular parcels of land,” making it “necessary to

search tract books in order to determine whether criminal

jurisdiction over each particular offense, even though committed

within the reservation, is in the State or Federal Government.”

Seymour v. Superintendent of Washington State Penitentiary, 368 U.S.

351, 358 (1962). The impractical “checkerboard jurisdiction” that

would result is too easily “avoided by the plain language of § 1151[,]”

Seymour, id.; and too plainly rejected by the Supreme Court’s

reasoning in McGirt and other cases. Because the State has not

demonstrated that section 6 grants the State criminal jurisdiction on

fee lands, we find no plain error and deny this claim.

Impact of Castro-Huerta

436 We nevertheless observe that the briefing in this case was

submitted prior to the Supreme Court’s decision in Castro-Huerta. The

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