C. M. G. v. State

• Citation: 594 P.2d 798
• Decision Date: 01 May 1979
• Docket Number: No. J-78-362,J-78-362
• Parties: C. M. G., a juvenile, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 798

594 P.2d 798

C. M. G., a juvenile, Appellant, v. The STATE of Oklahoma, Appellee.

No. J-78-362.

Court of Criminal Appeals of Oklahoma.

May 1, 1979.

As Corrected May 4, 1979.

An appeal from the District Court, Kay County; Roger Mullins, Judge.

C.M.G., appeals from an order of the Juvenile Division certifying him to stand trial as an adult for the offense of Murder in the First Degree. REVERSED and REMANDED with instructions to DISMISS.

Patti Palmer, Susan Work, Oklahoma City, for appellant.

Joseph A. Wideman, Dist. Atty., Kay County, Michael R. Collins, Alan B. Foster, Asst. Dist. Attys., for appellee.

F. Browning Pipestem, Norman, amicus curiae.

OPINION

BRETT, Judge:

The juvenile, the State, and this Court agree that the threshold determination is whether or not the Chilocco Indian School (Chilocco) is "Indian country" within the definition of 18 U.S.C. § 1151 (1970). ¹ If the school is Indian country, the United States has exclusive jurisdiction over prosecution of the offense. If it is not Indian country, then the State of Oklahoma and the United States have concurrent jurisdiction to prosecute the crime charged, and this Court must deal with the allegations of error in the certification proceedings.

Title 18 U.S.C. § 1152 (1970), provides that "Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country." Title 25 U.S.C. § 1321, P (a), (1970), passed in 1968, grants to the states consent to assume, with the consent of the Indians involved, jurisdiction to prosecute crimes committed in Indian country, and 25 U.S.C. § 1323 (1970), gives the consent of the United States to states to amend their constitutions or existing statutes to remove any legal impediments to the state assuming that jurisdiction. To date, the State of Oklahoma had made no attempt to repeal Art. I, § 3, of the Constitution of the State of Oklahoma, which prohibits state jurisdiction over Indian country, so the federal government still has exclusive jurisdiction over Indian country located within Oklahoma boundaries. See State v. Littlechief, Okl.Cr., 573 P.2d 263 (1978).

The facts in this case are not in dispute. The parties stipulated that: (1) There are 266 in-state and out-of-state students enrolled at Chilocco, all of whom have at least one-quarter Indian blood. (2) Eighty-two of Chilocco's 102 employees are Indian. (3) Chilocco is not associated with any particular tribe, and its students are members of various tribes with which they maintain ongoing relationships. (4) Pursuant to employment contracts, Chilocco provides staff houses and apartments, all but three of which are occupied by Indian employees. (5) Chilocco is funded through the Bureau of Indian Affairs, an agency within the United States Department of the Interior. The administration of the funds is through the Anadarko Area Office, Bureau of Indian Affairs, Anadarko, Oklahoma. (6) While the Anadarko Agency administers funds to Chilocco, the respective tribes and agencies are responsible for the welfare of the individual students who are subject to their authority, and the tribes and agencies provide financing for higher education and housing once the students leave the school. (7) There is an Indian health clinic located on the Chilocco campus. It is open three days a week and is operated by the United States Public Health Service in Pawnee, Oklahoma. The Pawnee Agency of the Bureau of Indian Affairs, located in Pawnee, approximately 70 to 75 miles from the school, provides service to the surrounding Indian community, including members of the Ponca, Pawnee, Otoe, Missouri, Kaw and Tonkawa tribes, but does not administer services to Chilocco, per se. (9) In 1934, an Indian Subsistence Homestead Colony was established on 3,000 acres of Chilocco Indian Reserve lands. It was divided into farms of about 160 acres and a common pasture of about 600 acres. (10) Houses and farm buildings for 15 homesteaders were erected for the Indian Subsistence Colony. (11) Participants in the Indian Subsistence Homestead Colony were required to sign an Indian subsistence homestead agreement with the federal government which provided that the buyer desired to become a member of the community and to occupy a homestead in the community. The agreement further provided for the use of common land and property by members of the community and required the participants to abide by applicable statutes and ordinances and administrative regulations. (12) As of 1957, six of the homesteads continued to be occupied by Indian homesteaders. Currently, none of the homesteads is occupied under the terms of the original agreement. (13) Non-Indians can be admitted and enrolled at Chilocco. (14) Legislation has been proposed to turn over the improvements of the homestead colony to the school, as the improvements have fallen into disuse, but it has not been acted upon.

The following other evidence appears. The Chilocco School Reserve is located in the northern strip of land in western Oklahoma which was commonly known as the Cherokee outlet. The Cherokee outlet was first acquired by the Cherokee Nation in the 1830's. In 1866, the United States and the Cherokee Nation agreed that:

"The United States May settle friendly Indians in any part of the Cherokee country west of 96o , to be taken in a compact form in quantity not exceeding one hundred and sixty acres for each member of each of said tribes thus to be settled; the boundaries of each of said districts to be distinctly marked, and the land conveyed in fee simple to each of said tribes to be held in common or by their members in severalty as the United States may decide." (Emphasis added) 14 Stat. 799, 804, Art. 16

Pursuant to the 1866 treaty, Poncas, Pawnees, Otoes and Missouri Indians were settled in portions of the Cherokee Outlet which were sold by the Cherokees.

In 1882, the Congress of the United States authorized an Indian school to be built in the Cherokee outlet near the southern boundary of the Kansas and near the Ponca and Pawnee reservations. 22 Stat. 68, 85, ch. 163. Thereafter, on July 12, 1884, President Chester A. Arthur issued an executive order setting aside land for the Chilocco Indian Reserve with these words:

"(T)he following-described tracts of country in the Indian Territory, viz, sections 13, 14, 15, 16, 21, 22, 23, 24, 25, 26, 27, 28, and the east half of sections 17, 20, and 29, all in township No. 29 north, range No. 2 east of the Indian meridian, be, and the same are hereby, Reserved and set apart for the settlement of such friendly Indians belonging within the Indian Territory as have been or who may hereafter be educated at the Chilocco Indian Industrial School in said Territory." (Emphasis added) Kappler, Laws and Treaties, vol. 1, 842 (2nd ed.).

In 1891, the Cherokee Nation agreed to sell the entire Cherokee outlet to the United States. That agreement was ratified by Congress in 1893. 27 Stat. 612, 642, ch. 209. In Section 10 of that agreement, the United States agreed to purchase from the Cherokee Nation "all the right, title, interest, and claims . . ." in the Cherokee outlet. Further, the Cherokee Nation agreed to accept payment "as a full and complete relinquishment and extinguishment of all their title, claim, and interest in and to said lands; . . ." However, the parties also agreed in Section 10 that:

"Sections thirteen, fourteen, fifteen sixteen, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-seven, twenty-eight and the east half of seventeen, twenty and twenty-nine, all in township numbered twenty-nine north, of range numbered two east of the Indian Meridian, the same being lands reserved by Executive order dated July twelfth eighteen hundred and eighty-four, for use of and in connection with the Chilocco Indian Industrial School, in the Indian Territory, shall not be subject to public settlement, but shall, until the further action of Congress, Continue to be reserved for the purposes for which they were set apart in the said Executive order. . . ." (Emphasis added)

It has become a truism in Indian law that doubtful expressions in Indian treaties and Acts of Congress dealing with Indians are to be resolved in favor of the Indians. DeCoteau v. District County Court for Tenth Jud. Dist., 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975); McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Choctaw Nation of Indians v. United States, 318 U.S. 423, 63 S.Ct. 672, 87 L.Ed. 877 (1943). Cases in which land claimed to be Indian country was found not to be have involved land to which the Indians clearly and specifically had ceded all claim, right, title, and interest to the lands without any reservation whatsoever. See DeCoteau v. District County Court for Tenth Jud. Dist., supra; Ellis v. Page, 351 F.2d 250 (10th Cir. 1965).

The definition of Indian country has developed over many years, and the present statutory definition of 18 U.S.C. § 1151 (1970), is a codification of prior case law. In Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820 (1913), the United States Supreme Court rejected the contention that the term "Indian country" referred only to aboriginal lands of Indians and declared that lands which were set apart as Indian reservations out of the public domain were to be considered Indian country. ² In United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107 (1913), and United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed 410 (1938), the United States Supreme Court held that dependent Indian communities were Indian country. ³ In United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed 676 (1914), the Supreme Court held that Indian allotments were Indian country....