The Oklahoma Bar Journal May 2023

states” with an option for all other states to assume jurisdic tion by affirmative legislation. Oklahoma, however, never acted to assume jurisdiction over Indian country pursuant to Public Law 280 because of the conventional wisdom of elected leaders that Oklahoma already had jurisdic tion over all Indian country in the state. 44 Oklahoma’s overconfidence turned out to be a tactical error as courts later construed its failure to affirmatively assume jurisdic tion as an admission that it did not have jurisdiction over Indian country within the state. Finally, in the late 1960s and 1970s, federal Indian policy shifted decisively away from the ter mination of tribes to an era of tribal self-determination. 45 This

Second, Congress codified a definition of Indian country in the U.S. Code. This definition over rode common law conceptions of Indian country and firmly estab lished reservations, dependent Indian communities and allot ments as discrete forms of Indian country. 42 The statute made no exception for tribes in Oklahoma. Third was the passage of Public Law 280, a statute allowing states to obtain jurisdiction over Indian country within their territories. During the late 1940s and 1950s, Congress pursued a policy of termination that would end federal supervision over Indians and tribes and subject them to state law. 43 Public Law 280 trans ferred criminal jurisdiction over Indian lands in five “mandatory

era saw a reinvigoration of tribes in Oklahoma, particularly the Five Tribes, which began to strengthen their tribal institutions, including their tribal councils and courts. 46 This rebirth of tribal sovereignty undermined the argument that the tribes of Oklahoma had merged into the state government. Further, in the Indian Civil Rights Act of 1968, Congress amended Public Law 280 to require tribal consent before a state could act to assume jurisdiction over Indian country. No Oklahoma tribes consented to state jurisdiction. This reinforced the conclusion that Oklahoma’s failure to assume jurisdiction pursuant to Public Law 280 meant it did not have jurisdiction within Indian country in the state. THE REDISCOVERY OF INDIAN COUNTRY IN EASTERN OKLAHOMA These changes in federal Indian policy began to be reflected in Oklahoma court decisions in the late 1970s and 1980s. In State v. Littlechief , the Oklahoma Court of Criminal Appeals, adopting a decision by the United States District Court for the Western District of Oklahoma, reaffirmed that an original Kiowa allotment in western Oklahoma was Indian country under 18 U.S.C. §1151(c). 47 Although the state of Oklahoma continued to argue for a different treatment in eastern Oklahoma, the Oklahoma Supreme Court blunted the reach of this position when it extended the Littlechief holding to Quapaw and Seneca Cayuga trust allotments in May v. Seneca-Cayuga Tribe of Oklahoma . 48 Reasoning that the allotment of both tribes’ lands had been done pursuant to the provisions of the General Allotment Act, the same

Photographs of the members of the First Inter-Tribal Council of the Five Civilized Tribes in 1950. Courtesy Oklahoma Historical Society.

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.

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THE OKLAHOMA BAR JOURNAL