American Indian Law Review Volume 6 | Number 1 1-1-1978 The ourJ ney from Ex Parte Crow Dog to Littlechief: A Survey of Tribal Civil and Criminal Jurisdiction in Western Oklahoma F. Browning Pipestem Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons, and the Jurisdiction Commons Recommended Citation F. B. Pipestem, The Journey from Ex Parte Crow Dog to Littlechief: A Survey of Tribal Civil and Criminal Jurisdiction in Western Oklahoma, 6 Am. Indian L. Rev. 1 (1978), https://digitalcommons.law.ou.edu/ailr/vol6/iss1/2 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. THE JOURNEY FROM ExParte CrowDogTO Littlechief:A SURVEY OF TRIBAL CIVIL AND CRIMINAL JURISDICTION IN WESTERN OKLAHOMA F. Browning Pipestem* Under the provisions of Public Law 83-280 it appears therefore that the State of Oklahoma could have unilaterally assumed jurisdiction over any "Indian country" within its borders at any time between i953 and 1968 had the Oklahoma Constitution been amended as required. After the enactment of Title IV in 1968 Oklahoma had to amend its constitution and the affected tribes had to consent to the State's assumption of jurisdiction over them before the State could acquire jurisdiction over "Indian country." -Honorable Fred Daugherty, United States of America v. Brock Kenyon Little Chief, No. CR-76-207-D, Nov. 7, 1977 Thereafter, a motion to dismiss said information was filed and a hearing held thereon on August 10, 1976, at the conclu- sion of which the court sustained the motion to dismiss, find- ing as he did so that the lands upon which the homicide oc- curred were within lands defined as Indian Land, and that the State of Oklahoma was without jurisdiction to prosecute the defendant. Thereafter, the State of Oklahoma filed an appeal with this Court .... We find that the issue sought to be raised has been deter- mined by the Honorable Fred Daugherty, and that said deter- mination is binding on the State of Oklahoma since it in- volves the construction and application of Federal Stat- utes .... - State v. Littlechief, No. 0-77-107, Oklahoma Court of Criminal Appeals, Jan. 4, 1978 *B.A., Northwestern Oklahoma State College; J.D., University of Oklahoma. The author wishes to acknowledge the assistance of G. William Rice, third-year law student, University of Oklahoma College of Law, as research assistant on this article. © 1978, F. Browning Pipestem Published by University of Oklahoma College of Law Digital Commons, 1978 Introduction In accordance with the provisions of Section 14 of the Indian Ap- propriation Act of 1889,' Lucius Fairchild, J.R. Hartranft, and A.H. Wilson were appointed by the President as a commission to "negotiate with the Cherokee Indians, and with all other Indians owning or claiming lands lying west of the ninety-sixth degree of longitude in the Indian Territory, for the cession to the United States of all their title, claim, or interest of every kind or character in and. to said lands." This commission's primary purpose was to secure title to the area known as the Cherokee Outlet and secon- darily to negotiate with other Indian tribes. Thus, the commission was referred to generally as the Cherokee Commission. Later, with the addition of Mr. Jerome, this commission would be known more familiarly to the western Oklahoma Indian tribes as the Jerome Commission. Beginning in 1890, the Jerome Commission, through a series of "allotment agreements" consummated with the Indian tribes in western Oklahoma, except for the Kaw, Otoe-Missouria, and Ponca Tribes, secured for the United States the cession of vast acreages of land within the original boundaries of tribal reserva- tions, subject to allotments of land to individual members of the affected tribes in addition to reservations of specific tracts of land for tribal or federal uses. The judicial and administrative treatment of the legal aftermath of this allotment and cession policy executed by the Jerome Com- mission and the major federal enactments such as the Dawes Act (General Allotment Act of 887); the Oklahoma Organic Act of May 2, 1890, creating the Oklahoma Territory; the Burke Act of May 8, 1906, amending the General Allotment Act; the Oklahoma Enabling Act of June 16, 1906; the Indian Reorganization Act of 1934; the Oklahoma Indian Welfate Act of 1936; Section 1151 of Title 18 of the United States Code, defining Indian country; Public Law 230, relating to assumption of civil and criminal jurisdiction over Indian country by the states; and the Indian Civil Rights Act of 1968, as they bear upon the issue of tribal civil and criminal jurisdiction in western Oklahoma, is the subject of this article. As was stated in McClanahan v. Arizona Tax Commission,' it may be helpful to begin this discussion of the law applicable to this complex area with a brief statement of what this survey of tribal jurisdiction in western Oklahoma does not involve. Justice Mar- 1. 25 Stat. 1005 (1889). 2. 41.1 U.S. 164 (1973). https://digitalcommons.law.ou.edu/ailr/vol6/iss1/2 shall, speaking for the Court, declared: "We are not here dealing with Indians who have left or never inhabited reservations set aside for their exclusive use or who do not possess the usual ac- coutrements of tribal self-government." All of the Indian tribes in western Oklahoma possess the usual accoutrements of tribal self-government consistent with the Indian sovereignty principles enunciated in Worcester v. Georgia.3 No federal law has abolished any of the ordinary attributes of sovereignty of the above referenced federally recognized Indian tribes. As long as the Indian tribes in western Oklahoma maintain tribal relations (federal recognition), the Indian customs and laws control the internal affairs of the various tribes until Congress ex- pressly directs otherwise. Section 12 of the Oklahoma Organic Act4 expressly recognizes these tribal powers. The 1890 date is critical in that from 1890 forward several dif- ferent statutory schemes for the different tribal groups in Oklahoma become evident. Consideration of the comprehensive statutory treatment of these tribes is not material here except to point out that a separate and special statutory arrangement emerges for those other tribes which occupied the Indian Territory and the tribes we will refer to as the Indian tribes in western Oklahoma. In discussing the legal status of the various Indian tribes in Oklahoma, the Handbook of Federal Indian Law, in the 1958 revised edition at pp. 985-86, describes the situation in the follow- ing manner: It must be recognized that in many respects the statutes and legal principles discussed in other chapters of this work as generally applicable to Indians of the United States, also apply to Oklahoma Indians, while in other respects Oklahoma Indians, or certain groups thereof, are excluded from the scope of such statutes and legal principles. And, further, at pp. 986-87, the treatise points out the counter- productive impreciseness in referring to the many Indian tribes in Oklahoma as the "Oklahoma tribes," by stating: Reference is sometimes made to the Five Civilized Tribes (the Cherokees, Choctaws, Chickasaws, Creeks and Seminoles), and the Osages, as if they were the only tribes resident in the State of Oklahoma. In fact, the Indian tribes residing in the State include also the Cheyenne, Arapaho, 3. 31 U.S. (6 Pet.) 515 (1832). 4. Act of May 2, 1890 (26 Stat. 81). Published by University of Oklahoma College of Law Digital Commons, 1978 Apache, Comanche, Kiowa, Caddo, Delaware, Wichita, Kaw, Otoe, Tonkawa, Pawnee, Peoria, Ponca, Shawnee, Ottawa, Quapaw, Seneca, Wyandotte, Iowa, Sac and Fox, Kickapoo, Pottawatomi and others. Many general statutes are expressly made inapplicable to the Five Civilized Tribes or the Osages or to these nations and the Osages or to all tribes in Oklahoma. Congress has passed many special laws for Oklahoma tribes, especially for the Five Civilized Tribes and the Osages. The recognition the more well-known Oklahoma tribes have received and their legal status has served to obscure the substan- tive legal distinctions between those tribes and the tribes occupy- ing the western part of the state of Oklahoma. Whereas, the Five Civilized Tribes and Osages have generally been the subject of special congressional treatment, the Indians in western Oklahoma, with the single exception of the exclusion from certain portions of the 1934 Wheeler-Howard Act commonly referred to as the Indian Reorganization Act, have been included in the general drift of federal legislation affecting Indians nationwide. The misplaced reliance on the impreciseness of the term "Oklahoma Indians" and the distinction between various tribal groups in Oklahoma is illustrated in the following quotation from Oklahoma Tax Commission v. UnitedStates: The underlying principles on which these decisions are based do not fit the situation of the Oklahoma Indians. Although there are remnants of the form of tribal sovereignty, these In- dians have no effective tribal autonomy as in Worcester v. Georgia, and, unlike the Indians involved in The Kansas In- dians case, they are actually citizens of the State with little to distinguish them from all other citizens except for their limited property restrictions and their tax exemptions. Their lands are held in fee, not in trust, as in the Rickert case, and the doctrine of constitutional immunity from taxation for the income of their holdings on the federal instrumentality theory has been renounced .... [Citations omitted.]' The questions in Oklahoma Tax Commission v.