Chris Casteel The Oklahoman 30 December 2021
The Oklahoma Court of Criminal Appeals ruled Thursday that Congress officially disestablished the Kiowa Comanche Apache Reservation in southwestern Oklahoma and that the state had jurisdiction to prosecute a Native American for crimes committed on land that had been part of the reservation.
The court unanimously upheld a district judge’s ruling earlier this year that a law passed by Congress in 1900 included “present and total relinquishment of tribal interests” on the reservation along with “a Congressional promise to compensate the tribes for their land by payment of a fixed sum.”
All or part of eight Oklahoma counties are now within the boundaries of the land set aside by the U.S. government in 1867 for the Kiowa, Comanche and Apache Tribes: Jefferson, Stephens, Grady, Caddo, Comanche, Cotton, Kiowa and Tiliman counties.
In its ruling on Thursday, the court for the first time rejected an attempt to extend the U.S. Supreme Court’s 2020 decision in McGirt v Oklahoma beyond the Muscogee (Creek) reservation. In the McGirt decision, the high court ruled that Congress had never officially disestablished the Creek reservation and that convicted child rapist Jimcy McGirt, a Native American, was wrongly tried in an Oklahoma state court for crimes committed on Creek land.
In decisions earlier this year involving criminal appeals, the court extended the Supreme Court decision to the Cherokee, Chickasaw, Choctaw, Seminole and Quapaw reservations.
More:Supreme Court may decide soon whether to reconsider McGirt
Now, most of eastern Oklahoma and some counties in central Oklahoma are parts of reservations. Crimes involving Native Americans on reservations must be prosecuted in federal or tribal courts.
The decision regarding the Kiowa Comanche Apache Reservation came in the case of Oklahoma death row inmate Mica Alexander Martinez, who was convicted of killing Carl and Martha Miller in 2009 at their home in Cache, which is part of Comanche County.
Martinez had lost prior appeals but filed a new one after the McGirt decision claiming he was wrongly tried by the state because he was Native American and the crime was committed on the Kiowa Comanche Apache Reservation.
Oklahoma District Judge Emmit Tayloe held a hearing in Comanche County and ruled in April that the U.S. government negotiated a treaty that led to the disestablishment of the reservation in the 1900 law.
In his conclusions, Tayloe rejected arguments from Martinez and the Comanche tribe that the reservation couldn’t be disestablished in that 1900 law because few tribal members had agreed to the treaty.
“Neither fraud, lack of tribal consent or amendments to the original treaty prevent Congress from having the authority to disestablish the reservation,” Tayloe wrote, saying that the U.S. Supreme Court has ruled Congress has the power “to eliminate or reduce a reservation against a tribe’s wishes and without its consent.”
Tayloe also dismissed arguments that Congress has referred to the reservation in bills appropriating money for the Kiowa, Comanche and Apache tribes. Those bills “are not relevant in determining the intent of Congress in the unambiguous 1900 Act,” Tayloe said. The Oklahoma Court of Criminal Appeals, in its decision on Thursday, said, “In cases long before McGirt, both the Tenth Circuit Court of Appeals and this Court had concluded that the Act of 1900 disestablished the Kiowa Comanche Apache Reservation, citing the language confirming complete tribal cession, transfer, conveyance, relinquishment, and surrender of all tribal claims to their reservation lands.”
The court said, “The record convinces us that Congress intended to disestablish the Kiowa Comanche Apache Reservation, and did so, by the Act of 1900.
“Nothing presented in the evidentiary hearing or the briefs casts serious doubt on this legal conclusion in previous cases, even in light of McGirt. We therefore affirm the trial court’s legal conclusion that Congress disestablished the Kiowa Comanche Apache Reservation. Mr. Martinez was subject to trial for murder and felony assault in the district court of Comanche County.”
The court noted that, even if it had ruled that the reservation exists, Martinez’ conviction would not have been affected because of the court’s ruling in August that the McGirt decision did not apply to criminal cases that had already been affirmed on appeal.