The Oklahoma Bar Journal May 2023

governor of Oklahoma declined to affirmatively assume juris diction over Indian country in Oklahoma based on the assump tion that there was no longer any Indian country over which to assume jurisdiction. 39 Likewise, the Oklahoma attorney general reasoned in a 1979 opinion that as a result of statutes like the Curtis Act of 1898 and the Five Tribes Act of 1906, which abolished the tribal courts and contemplated the “dissolution of the tribal govern ments,” respectively, “[a]ll tribal government in the former Indian Territory merged with and became a part of the state government of the State of Oklahoma.” This gave the state exclusive jurisdiction in eastern Oklahoma, including the authority to prosecute crimes com mitted by or against Indians. 40 CHANGES IN FEDERAL INDIAN POLICY: 1934-1976 While courts in Oklahoma remained resistant to the exis tence of Indian country in eastern Oklahoma well into the second half of the 20th century, changes in fed eral Indian policy during the 1930s to 1960s foreshadowed reexamina tion of these rulings in later years. First, during the New Deal Era, Congress enacted the Indian Reorganization Act, ending the allotment policy and allowing tribes to reorganize and rees tablish their governments. 41 Congress also established a process whereby the tribes could reestablish and expand their land base by acquiring land and hav ing the federal government hold it in trust for their benefit. This cre ated large amounts of tribal trust land within Oklahoma, notwith standing the belief there were no longer formal reservations.

of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law or otherwise, which it would have been competent to make if this Act had never been passed.” 30 EARLY DECISIONS DENYING THE EXISTENCE OF INDIAN COUNTRY IN EASTERN OKLAHOMA Despite these provisions of the Enabling Act acknowledging the continuing existence of Indian lands in the state and preserving federal authority over the same, early federal and Oklahoma case law routinely concluded that there was little to no Indian country left in Oklahoma. Reservations Beginning with the broadest category of Indian country, Indian reservations, the early conclu sion was that there were few, if any, reservations remaining in Oklahoma. 31 For reservations in western Oklahoma, courts started from the premise that the tribes initially possessed reservations but concluded that the reserva tions had been disestablished by allotment. 32 In eastern Oklahoma, however, particularly with respect to the Five Tribes, courts reasoned that Oklahoma tribes never had reservations to begin with due to the unique history of the Indian Territory. For example, in one case, the Oklahoma Court of Criminal Appeals concluded that Congress had “take[n] the Indians in the Indian Territory out of the category of Reservation Indians.” 33 The state of Oklahoma continued to make this argument as recently as McGirt . 34

Allotments Since the assumption was that there were no longer Indian reser vations in Oklahoma, most cases in the first half of the 20th century considered whether Indian allot ments carved out of the prior res ervations remained Indian country and free from state jurisdiction. While courts generally concluded that allotments located in the former Oklahoma Territory were Indian country, 35 they reached the opposite conclusion for allotments in the former Indian Territory. In Ex Parte Nowabbi , the Oklahoma Court of Criminal Appeals held that the state had jurisdiction to prosecute a murder committed by one Choctaw Indian against another on a restricted Choctaw allotment. 36 The court based its conclusion on a dubious interpretation of an amendment to the General Allotment Act. The amendment, which extended the trust restrictions on most allot ments and delayed subjecting allot tees to state jurisdiction, contained a proviso that it did not apply to “any Indians in the former Indian Territory.” 37 The court concluded that the implication of excepting the Indians in the Indian Territory was that Congress had intended to subject them to state juris diction. 38 The problem with this reasoning was that Congress had exempted most of the tribes in the Indian Territory from the General Allotment Act to begin with, so their exception from an amend ment to the General Allotment Act was unsurprising. Similarly, others argued that statutory enactments paving the way for Oklahoma statehood had terminated the existence of Indian country in eastern Oklahoma. For example, in the 1950s, the

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.

MAY 2023 | 21

THE OKLAHOMA BAR JOURNAL