Tenth Circuit Overrules Oklahoma Appellate Court Regarding Determination of What is Indian Country

            Criminal cases frequently are test cases for what is and what is not considered Indian Country in Oklahoma.  If specific land is Indian Country, then the tribe or federal government maintains criminal jurisdiction in Oklahoma.  If, it is not Indian Country, then arguably the tribe has no jurisdiction and the federal government would not maintain any jurisdiction unless the crime were federal in nature. (For example, a civil rights violation or mail fraud).

            In Wagnan v. Trammell, Case No. 11-7072, the 10^th Circuit Court of Appeals recently granted a writ of habeas corpus, essentially overruling the Oklahoma Court of Criminal Appeals (“OCOCA”) regarding its determination that the land where the crime committed was not Indian Country.  In determining that the land was Indian Country, and hence the criminal defendant should have been tried in federal court (rather than State District Court), the 10^th Circuit reviewed federal statutes regarding the alienation of Indian lands in Oklahoma.  The pertinent federal laws required the United States government via the Secretary of the Interior to approve of conveyances by an Indian of restricted lands.  In many instances, these conveyances were not approved by the Secretary of the Interior or his designee, or were not properly approved.  The result: the conveyance was void.   For the specific land at issue, the 10^th Circuit ruled that the applicable regulation to obtain approval for the conveyance was not followed, hence no approval. The 10^th Circuit stated:

 Any doubts on this score, we believe, are removed by examining the relevant federal regulations in place at the time of the 1970 state court proceeding. At that time, there was a federal regulation in place, 25 C.F.R. § 121.34, that mandated the submission of a specific application form in order to obtain Secretarial approval for sales of restricted lands. Section 121.34, entitled “Removal of restrictions, application,” provided as follows:  Application for the removal of restrictions and for approval of sales of lands must be made in triplicate on approved form Five Civilized Tribes, 5-484, and submitted to the superintendent for the Five Civilized Tribes or any field clerk. These forms will be furnished free of charge by the superintendent or field clerk. 25 C.F.R. § 121.34 (1970). Although this regulation did not expressly reference the 1945 Act, it clearly appears to have been intended to encompass sales of purchased interests in allotments. Notably, there is no suggestion by respondent, nor any evidence in the record indicating, that Kizzie or the Housing Authority complied with this regulation by filing an application for approval of the sale of the Tract to the Housing Authority.

            If native restricted land was not indeed conveyed outside of the restrictions on alienation, then the land retains its character as Indian Country.  This could apply to a great amount of land within Oklahoma.  As is usual, the only way to determine the status of any particular land will be a search of its chain of title and a review of any documents purporting to remove restrictions or instances where the Department of the Interior purports to provide consent to a conveyance.  The 10^th Circuit’s decision in Wagnan highlights there may be a great deal more Indian Country in Oklahoma than previously thought. The same rules would apply to civil as to criminal jurisdiction. And more importantly, land for which the Department of the Interior did not consent to a conveyance, would be land which was Indian Country prior to 1988 and hence capable of being used for gaming under the Indian Gaming Regulatory Act.  This decision could open the door to more casinos in more places in Oklahoma.

            The 10^th Circuit declined to address another issue which could drastically increase the amount of land which is Indian Country in Oklahoma.  The Court declined to determine whether or not a mineral estate renders a tract of land “Indian Country” for the purpose of 18 U.S.C. § 1151.  The Seminole Nation as amicus noted a conflict of recent authority within the 10^th Circuit regarding this issue. The question is not insignificant. Indeed, in  Oklahoma Tax Commission v. Osage Nation one of the arguments in favor of Indian Country status for Osage County is the fact that mineral estate remains restricted.  The 10^th Circuit affirmed the Northern District of Oklahoma in deciding that the existence of a native mineral estate was not controlling, as no surface estate in the land was reserved to the Osage Nation or its tribal members. Osage Nation v. Oklahoma Tax Commission, 597 F.Supp.2d  1250, 1259 (N.D. Okla. 2009), aff’d Osage Nation v. Irby, 597 F.3d 1117 (10th Cir. 2010). The Seminole Nation claims this is at conflict with the 10^th Circuit’s holding in Hydro Res., Inc. v. U.S. E.P.A., 608 F.3d 1131 (10th Cir. 2010), in which the panel held that a mere right of way running across land is sufficient to render that land Indian Country.  The Tenth Circuit in that case ruled, “To be sure, Congress sought to mitigate, to a degree, the checkerboarding created by the allotment system by extending federal jurisdiction over “all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” 18 U.S.C. § 1151(c).” Id. at 1159.  The Seminole Nation supports that if the mineral estate is in fact restricted, that the property itself is sufficiently restricted to render it Indian Country for the purposes criminal (and hence civil) jurisdiction.  If successful this argument would also dramatically increase the amount of land designated as Indian Country within Oklahoma and throughout the United States.

Conclusion:

            More land is Indian Country in Oklahoma than previously known. If specific land was not properly conveyed with Secretarial approval then it remains Indian Country and was Indian Country prior to 1988 for gaming purposes.  Furthermore, if the 10^th Circuit or Supreme Court directly considers that a native mineral interest is sufficient to render land Indian Country, then that same land would have been Indian Country prior to 1988 for gaming purposes.  The Wagnan decision likely increases the amount of Indian Country available in Oklahoma for gaming and other economic development purposes.

The Tenth Circuit's decision is available at: http://www.ca10.uscourts.gov/opinions/11/11-7072.pdf