The Oklahoma Bar Journal May 2023

O klahoma L egal H istory

T HE EXISTENCE OF “INDIAN COUNTRY” – generally defined as all land within Indian reservations, dependent Indian communities and Indian allotments 1 – has legal significance because it is “the benchmark for approaching the allocation of federal, tribal and state authority with respect to Indians and Indian lands.” 2 Generally, the federal and tribal governments have primary authority over Indians within Indian country, while state jurisdiction is more limited. 3 Outside of Indian country, on the other hand, states generally have jurisdiction over Indians and non-Indians alike. 4 The Rediscovery of Indian Country in Eastern Oklahoma By Conor P. Cleary

decisions misapprehended funda mental principles of federal Indian law, instead “substituting stories for statutes” by employing assim ilationist suppositions about the “civilized” nature of tribes in east ern Oklahoma and distinguishing them from “Reservation Indians.” 6 Of course, after McGirt v. Oklahoma , where the Supreme Court ruled that the Muscogee Reservation was never disestab lished by Congress, we know this conclusion is erroneous. 7 But while McGirt is the most recent and significant pronouncement on the existence of Indian country in eastern Oklahoma, it is the culmi nation of several earlier decisions by federal and Oklahoma state courts, issued only in the 1980s and 1990s, that began to “rediscover” categories of Indian country in eastern Oklahoma and repudiate the reasoning of earlier decisions.

This article summarizes the historical circumstances that led courts to draw a distinction between the western and eastern halves of the state, generally rec ognizing the existence of Indian country in the former while cate gorically denying its existence in the latter. It begins with a sum mary of tribal land tenure before Oklahoma’s statehood, the sub sequent allotment of tribal lands and the admission of Oklahoma to the Union. It then surveys the court decisions from the first half of the 20th century that denied the continuing existence of Indian country in eastern Oklahoma. The article then explains changes in federal Indian policy during the New Deal era of the 1930s and 1940s, Oklahoma’s decision in the 1950s not to assume jurisdiction over Indian country within the state pursuant to Public Law 280

One might reasonably assume that the state of Oklahoma, home to 39 different Indian tribes, would have significant amounts of Indian country within its borders, par ticularly in the eastern part of the state, which, immediately prior to statehood, was the Indian Territory. Yet, as recently as 1979, the Oklahoma attorney general categorically concluded that “in Eastern Oklahoma, there is no ‘Indian Country’ as that term is used in federal law.” 5 Indeed, the conventional wisdom of the federal and state courts, many historians and academics, and Oklahoma’s political leaders was that there was little to no Indian country left in eastern Oklahoma and, in any event, the state had obtained pri mary jurisdiction over it, including the exclusive authority to prosecute crimes committed there. In reach ing this conclusion, many court

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

18 | MAY 2023

THE OKLAHOMA BAR JOURNAL