The Oklahoma Bar Journal May 2023

mentioned in the statutory defi nition of Indian country, a pair of federal court opinions emphasized the purpose for which the lands were acquired rather than any formal label. Since trust lands were acquired for use by Indians and were under federal supervi sion, that was sufficient to qualify them as Indian country. 53 These rulings were later affirmed by the U.S. Supreme Court in the early 1990s. 54 For most of Oklahoma’s first century, state and federal courts denied the existence of Indian country in eastern Oklahoma based on a false dichotomy between the former Oklahoma and Indian territories, grounded more in legend than in law, that per versely punished the Five Tribes for their perceived assimilation. Only in the past generation have courts in Oklahoma, prompted by changes in federal Indian policy by Congress, rediscovered the existence of Indian country in the eastern half of the state, beginning with the recognition of Indian allotments, then tribal trust lands and finally the reaffirmation of reservations in McGirt . Conor P. Cleary is the Tulsa field solicitor for the U.S. Department of the Interior. The views expressed are those of Mr. Cleary and do not necessarily represent the views of the Department of the Interior or the United States government. CONCLUSION ABOUT THE AUTHOR

legislation authorizing allotments to the western Oklahoma tribes, the Oklahoma Supreme Court found that the location of these tribes within the former Indian Territory in eastern Oklahoma did not remove the allotments from Indian country. 49 Once the Oklahoma Supreme Court recognized that certain allotments in eastern Oklahoma could qualify as Indian country, courts soon held that the restricted allotments of the Five Tribes’ lands were also Indian country under 18 U.S.C. §1151(c). In 1989, in State v. Klindt , the Oklahoma Court of Criminal Appeals, fol lowing Seneca-Cayuga , overruled Nowabbi in holding that an original Cherokee allotment was Indian country. 50 Three years later, in Cravatt v. State , the court was even more explicit, firmly rejecting a “different judicial treatment for incidents involving members of the Five Civilized Tribes,” noting there was “no foundation for this position.” 51 That same year, the 10th Circuit reached a similar result in United States v. Sands , where it held that a restricted Muscogee (Creek) allotment qualified as Indian country. 52 In these cases, the courts cited both the express inclusion of allotments in the statutory defini tion of Indian country as well as Oklahoma’s failure to assume crim inal jurisdiction under Public Law 280 in support of its conclusion. Finally, the courts began to undo their complete rejection of the existence of reservations in Oklahoma by finding that lands taken into trust for tribes pursuant to the Indian Reorganization Act and Oklahoma Indian Welfare Act qualified as Indian country under 18 U.S.C. §1151(a). Although tribal trust lands are not expressly

ENDNOTES 1. See 18 U.S.C. §1151(a)-(c). The definition provides in full: Except as otherwise provided in sections 1154 and 1156 of this title, the term “Indian country”, as used in this chapter, means (a) 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, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. 2. Indian Country, U.S.A., Inc. v. Okla. Tax Comm’n , 829 F.2d 967, 973 (10th Cir. 1987). 3. But see Oklahoma v. Castro-Huerta , 142 S. Ct. 2486 (2022). More specifically, states generally lack jurisdiction to prosecute crimes committed by Indians within Indian country. McGirt v. Oklahoma , 140 S.Ct. 2452, 2459 (2020) (citing Negonsott v. Samuels , 507 U.S. 99, 102-03 (1993)). Either the federal or tribal government has jurisdiction to prosecute crimes committed by Indians in Indian country depending on the nature of the offense. The federal government prosecutes certain “major” crimes while the tribe prosecutes other offenses. See Duro v. Reina , 495 U.S. 676, 680 n.1 (1990), superseded by statute as held in U.S. v. Lara , 541 U.S. 193 (2004). In the civil context, states generally lack authority over Indians in Indian country, see McClanahan v. Arizona Tax Comm ’ n , 411 U.S. 164 (1973), while they retain greater authority over non-Indians unless such jurisdiction would infringe tribal self-government or is preempted by federal law. See Williams v. Lee , 358 U.S. 217 (1959); White Mountain Apache Tribe v. Bracker , 448 U.S. 136 (1980). Tribes have civil jurisdiction over non Indians in Indian country. However, if the non Indian conduct at issue takes place on land within a reservation but held in fee by non-Indians, then tribal jurisdiction is generally only allowed where there is a consensual relationship between the non-Indian and the tribe or where the non-Indian conduct threatens or has a direct effect on the political integrity, economic security or health or welfare of the tribe. See Montana v. U.S. , 450 U.S. 544 (1981). 4. Mescalero Apache Tribe v. Jones , 411 U.S. 145 (1973). 5. 11 Okla. Op. Att’y. Gen. 345 (1979), available at 1979 WL 37653, at *8. 6. See , e.g. , Ex Parte Nowabbi , 61 P.2d 1139, 1154 (Okla. Crim. App. 1936); see also Okla. Tax Comm’n v. U.S. , 319 U.S. 598, 603 (1943) (suggesting that the “underlying principles” of federal Indian law “do not fit the situation of the Oklahoma Indians”). 7. The Oklahoma Court of Criminal Appeals subsequently extended McGirt ’s holding to the reservations of the Cherokee, Chickasaw, Choctaw, Seminole and Quapaw nations. See Hogner v. State , 500 P.3d 629 (Okla. Crim. App. 2021) (Cherokee Reservation); Bosse v. State , 499 P.3d 771 (Okla. Crim. App. 2021) (Chickasaw

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