# IN THE COURT OF CRIMINAL APPEALS (2023)

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URL: https://www.frixlaw.com/law-library/documents/tribal%3Aottawa_oklahoma%3Ae47438c45af4ded0

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

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

30
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[Read from a scan; the first 30 pages.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Aottawa_oklahoma%3Ae47438c45af4ded0. Public record. Not legal advice.