The Oklahoma Bar Journal May 2023

Reservation); Sizemore v. State , 485 P.3d 867 (Okla. Crim. App. 2021) (Choctaw Reservation); Grayson v. State , 485 P.3d 250 (Okla. Crim. App. 2021) (Seminole Nation); State v. Lawhorn , 499 P.2d 777 (Okla. Crim. App. 2021). 8. See McGirt v. Oklahoma , 140 S. Ct. 2452, 2459 (2020). 9. See , e.g. , Treaty With the Creeks, Art. XIV, March 24, 1832, 7 Stat. 366, 368; Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418. 10. See , e.g. , Treaty with Choctaw and Chickasaw, Apr. 28, 1866, 14 Stat. 769; Treaty with the Creek Indians, June 14, 1866, 14 Stat. 785. 11. See Act of March 2, 1890, chap. 182, 26 Stat. 81. 12. McGirt , 140 S. Ct. at 2475. 13. See , e.g. , U.S. v. Ramsey , 271 U.S. 467, 470 (1926). 14. McGirt , 140 S. Ct. at 2463. 15. See General Allotment Act, chap. 119, 24 Stat. 388 (1887). Heads of households received 160-acre allotments. Single individuals over the age of 18 and orphaned children received 80-acre allotments. Id. 18. See id. , §8, 24 Stat. at 391. It also did not apply to the Osage Nation, the Miami and Peoria Tribes nor the Sac and Fox Nation. The exception of the Five Tribes from the General Allotment Act stemmed from a belief that because the tribes owned their lands in fee, the federal government did not have the power to forcibly allot their lands. See McGirt , 140 S. Ct. at 2463. 19. Ch. 517, 30 Stat. 495 (June 28, 1898). The Curtis Act abolished the tribal courts and threatened the forcible allotment of tribal lands unless the tribes voluntarily agreed to allot their lands. 20. There were separate rolls for Indians by blood, intermarried white citizens and freedmen (descendants of African Americans enslaved by the tribes). 21. See , e.g. , Cherokee Allotment Agreement, chap. 1375, 32 Stat. 716 (July 1, 1902); Seminole Allotment Agreement, ch. 542, 30 Stat. 567 (July 1, 1898). 22. The Supreme Court upheld Congress’s authority to impose these allotments in Tiger v. Western Investment Co. , 221 U.S. 286, (1911). 23. The state of Oklahoma removed the restrictions on many of these allotments shortly after Oklahoma became a state. In 1908, Congress eliminated all restrictions on the allotments of Indians with less than one-half degree of Indian blood, intermarried white citizens and freedmen. Act of May 27, 1908, chap. 199, 35 Stat. 312. Land also lost its restricted status if inherited by any Indian heirs less than full blood. Id. , §9, 35 Stat. at 315. In 1947, Congress amended the law to provide that land lost its restricted status if inherited by anyone with less than one-half degree of Indian blood. See Act of Aug. 4, 1947, 61 Stat. 731. In 2018, Congress eliminated the minimum blood quantum requirement, and now, restricted land retains its status if inherited by anyone who is a lineal descendant of an original Five Tribes Indian allottee. See Stigler Act Amendments of 2018, 132 Stat. 5331 (Dec. 31, 2018); see also C. Cleary, “The Stigler Act Amendments of 2018,” 91 Okla. B. J. 50 (2020). 24. Five Tribes Act, chap. 1876, 34 Stat. 137 (Apr. 26, 1906). 25. Id. , §11, 34 Stat. at 141. 26. Id. , §28, 34 Stat. at 148. 27. Oklahoma Enabling Act, chap. 3335, 34 Stat. 267 (June 16, 1906). 28. Tiger , 221 U.S. at 309. 29. Oklahoma Enabling Act, §3, 34 Stat. at 270. 30. Id. , §1, 34 Stat. at 267-68. 16. Id. , §5, 24 Stat. at 389. 17. Id. , §6, 24 Stat. at 390.

31. One exception was the Osage Reservation. 32. See , e.g. , Ellis v. Page , 351 F.2d 250 (10th Cir. 1965) (Cheyenne and Arapaho Reservation); Tooisgah v. United States , 186 F.2d 93 (10th Cir. 1950) (Kiowa-Comanche-Apache Reservation). Although not all allotment statutes result in disestablishment of the reservations, see McGirt v. Oklahoma , 140 S. Ct. 2452, 2465 (2020), the courts in Ellis and Tooisgah concluded that the respective allotment statutes contained unambiguous language whereby the tribes unequivocally surrendered all tribal interests in the reservation lands. 33. See Nowabbi , 61 P.2d at 1154 (“We think the obvious purpose of the final and explicit proviso of said act was to take the Indians in the Indian Territory out of the category of Reservation Indians. And it shows a clear and unmistakable intention on the part of Congress to limit the jurisdiction of the United States over allotments in the Indian Territory.”). Even leading Indian law scholars concluded there were no reservations in Oklahoma. See , e.g. , F. Prucha, The Great Father 262 (abridged ed., 1986) (“The Indians of Oklahoma were an anomaly in Indian-white relations ... There are no Indian reservations in Oklahoma ... [T]he reservation experience that was fundamental for most Indian groups in the twentieth century was not part of Oklahoma Indian history.”). 34. See McGirt , 140 S. Ct. at 2474 (“Unable to show that Congress disestablished the Creek Reservation, Oklahoma next tries to turn the tables in a completely different way. Now, it contends, Congress never established a reservation in the first place.”). 35. U.S. v. Ramsey , 271 U.S. 467 (1926) (restricted Osage allotment); Ex Parte Nowabbi , 61 P.2d 1139, 1154 (Okla. Crim. App. 1936) (“[A]ll Indian allottees and their allotments in that part of the state of Oklahoma that was formerly Oklahoma Territory, are lands in the Indian country within the meaning of [the General Crimes Act] and subject to the exclusive jurisdiction of the United States, until the issuance of fee-simple patents.”). Subsequent court decisions confused the matter, however, after the 10th Circuit Court of Appeals concluded that the state of Oklahoma had jurisdiction to prosecute serious crimes committed on these allotments notwithstanding the Major Crimes Act, which generally gives the federal government exclusive jurisdiction. See Tooisgah v. U.S. , 186 F.2d 93 (10th Cir. 1950). In reality, the decision in Tooisgah was a narrow and limited one because, at the relevant time, the Major Crimes Act applied only “on and within an[ ] Indian reservation” as opposed to “Indian country,” which would include allotments. This conclusion was immediately limited to its facts since, by the time the decision was issued, Congress had amended the Major Crimes Act to apply to “Indian country” rather than just reservations and had enacted a definition of Indian country that expressly included reservations and allotments as separate and distinct categories of Indian country. See 18 U.S.C. §1151(a), (c). Unfortunately, subsequent court decisions interpreted Tooisgah as generally concluding that trust allotments were not considered “Indian country” and failed to take account of the intervening statutory definition of Indian country Congress enacted in 1948. See , e.g. , Application of Yates , 349 P.2d 45 (Okla. Crim. App. 1960); Ellis v. State , 386 P.2d 326 (Okla. Crim. App. 1963). 36. Ex Parte Nowabbi , 61 P.2d 1139 (Okla. Crim. App. 1936). 37. Act of May 8, 1906, chap. 2348, 34 Stat. 182. 38. Nowabbi , 61 P.2d at 1154 (“We think the obvious purpose of the final and explicit proviso of said act was to take the Indians in the Indian Territory out of the category of Reservation

Indians. And it shows a clear and unmistakable intention on the part of Congress to limit the jurisdiction of the United States over allotments in the Indian Territory.”). 39. Letter from Johnston Murray, governor of Oklahoma, to Orme Lewis, assistant secretary of the Interior (Nov. 18, 1953). 40. 11 Okla. Op. Att’y. Gen. 345 (1979), available at 1979 WL 37653. 41. Indian Reorganization Act, ch. 576, 48 Stat. 984. Congress extended the provisions of the Indian Reorganization Act to Oklahoma tribes in the Oklahoma Indian Welfare Act, 49 Stat. 1967. 42. 18 U.S.C. §1151(a)-(c). 43. H.R. Con. Res. 108, 83d Cong. (Aug. 1, 1953) (Congress declared its intent “to make the Indians ... subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens” and “at the earliest possible time, all of the Indian tribes and the individual members ... should be freed from Federal supervision and control.”). 44. In 1953, Gov. Murray issued a statement that “Public Law No. 280 will not in any way affect the Indian citizens of this State” because “[w]hen Oklahoma became a State, all tribal governments within its boundaries became merged in the State and ... came under State jurisdiction.” 45. See , e.g. , President Richard Nixon, Special Message to Congress, July 8, 1970. 46. See Muscogee (Creek) Nation v. Hodel , 851 F.2d 1439 (D.C. Cir. 1988) (upholding power of tribe to reestablish its tribal courts); Harjo v. Kleppe , 420 F.Supp. 1110 (D.D.C. 1976), aff ’ d sub. nom, Harjo v. Andrus , 581 F.2d 949 (D.C. Cir. 1978) (upholding the legitimacy and authority of the Creek National Council). 47. 573 P.2d 263 (Okla. Crim. App. 1978). The court clarified the confusion engendered by cases like Tooisgah and its progeny, see supra note 35, and definitively concluded that trust allotments in western Oklahoma remained Indian country. In support of its conclusion, it pointed to the failure of the state of Oklahoma to affirmatively assume jurisdiction over Indian country under Public Law 280. Id. at 265. 48. 711 P.2d 77 (Okla. 1985). 49. Id. 50. 782 P.2d 401 (Okla. Crim. App. 1989). 51. Cravatt v. State , 825 P.2d 277, 279 (Okla. Crim. App. 1992). 52. 968 F.2d 1058 (10th Cir. 1992). 53. See Ross v. Neff , 905 F.2d 1349 (10th Cir. 1990) (Cherokee trust land); Cheyenne-Arapaho Tribes v. State of Oklahoma , 618 F.2d 665 (10th Cir. 1980). The 10th Circuit reached the same conclusion with respect to unallotted lands held in trust for the Muscogee (Creek) Nation. See Indian Country, U.S.A., Inc. v. Oklahoma Tax Commission , 829 F.2d 967 (10th Cir. 1987). Pursuant to the Five Tribes Act of 1906, unallotted lands of the Five Tribes passed to the United States to be held in trust for their benefit. Id. (citing the Five Tribes Act of 1906, ch. 1876, §27, 34 Stat. 137, 148); cf. Choctaw Nation v. Oklahoma , 397 U.S. 620 (1970) (bed of the Arkansas River not allotted and therefore held in trust for the Cherokee, Choctaw and Chickasaw nations). 54. Okla. Tax Comm’n v. Citizen Band Potawatomi Tribe , 498 U.S. 505, 511 (1991).

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THE OKLAHOMA BAR JOURNAL