DocketNumber： F-87-351
Citation Numbers： 795 P.2d 1060
Judges： Lumpkin, Parks, Johnson, Brett, Lane
Filed Date： 6/29/1990
Status： Precedential
Modified Date： 10/18/2024
OPINION
Appellant Tommy Mongrain Eaves was tried by jury in the District Court of Osage County, Case No. CRF-85-65, for First Degree Murder (21 O.S.Supp.1982, § 701.7). The jury returned a guilty verdict for Second Degree Murder (21 O.S.1981, § 701.8) and recommended a punishment of thirty (30) years imprisonment. The trial court sentenced accordingly. From this judgment and sentence, Appellant appeals. We affirm.
The Appellant, an Osage Indian, shot and killed his father, also an Osage Indian, in Pawhuska, Oklahoma. The crime occurred in a housing project owned by the Osage Tribal Housing Authority. In his sole assignment of error, Appellant contends that the offense occurred on Indian country, outside the jurisdiction of the State court. Indian country is defined in 18 U.S.C. § 1151 and includes Indian reservations, dependent Indian communities and all Indian allotments. Both the State and the Appellant agree that the location of the crime was neither an Indian reservation nor an allotment. The dispositive question is whether the area was a dependent Indian community.
In C.M.G. v. State, 594 P.2d 798 (Okl.Cr.1979) cert. denied 444 U.S. 992, 100 S.Ct. 524, 62 L.Ed.2d 421 (1979), this Court was faced with the question of the state’s jurisdiction to prosecute crimes at the Chilocco Indian School. In holding that the state lacked jurisdiction, the Court provided a thorough discussion of the law of dependent Indian communities. Since C.M. G. was handed down in 1979, the First and Eighth Circuit Courts of Appeal have had occasion to further address the issue. These courts have concluded that Section 1151 mandates an inquiry into the nature of the community in which the crime occurred, the ultimate issue being whether the evidence shows that the area was established for the use, occupancy and protection of dependent Indians. United States v. Levesque, 681 F.2d 75 (1st Cir.1982); cert. denied 459 U.S. 1089, 103 S.Ct. 574, 74 L.Ed.2d 936 (1982), United States v. South Dakota, 665 F.2d 837 (8th Cir.1981); cert. denied 459 U.S. 823, 103 S.Ct. 52, 74 L.Ed.2d 58 (1982), Weddell v. Meierhenry, 636 F.2d 211 (8th Cir.1980) cert. denied 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981). See also United States v. Mound, 477 F.Supp. 156 (D.S.D.1979). These courts have also agreed that the test for determining what is a dependent Indian community must be a flexible one, not tied to any single technical standard. United States v. South Dakota, 665 F.2d at 842.
In the present case, the parties stipulated that the land was originally Osage Tribal land allotted to an Osage Indian. The land was subsequently sold to a non-Indian who in turn sold it to the Osage Tribal Council Housing Authority. The parties also stipulated to information contained in the Cooperation Agreement between the Housing Authority and the City of Pawhuska. The cooperation agreement provided that initial funding for the housing project came from the federal government, Department of Housing and Urban Development, (HUD); title to the land is held by the Housing Authority; the city of Pawhuska is to provide all public services including police and fire protection, water, sanitation, sewer, electricity and road maintenance; and an annual payment in lieu of taxes is to be paid by the Housing Authority to the city of Pawhuska. Evidence was also presented which showed that ninety (90%) percent of the residents of the housing project are Indian, Indians have federally approved first priority for housing, the Indian Health Service (IHS) installed the water and sewer lines, and the children attend Pawhuska schools, with the assistance of federal funds under the Johnson-
Appellant argues that all of the above constitute a dependent Indian community, citing as authority United States v. South Dakota. In that case, the Eighth Circuit held that a housing project located in the city of Sisseton, South Dakota fell within the meaning of a dependent Indian community and the state was therefore prohibited from exercising jurisdiction. In arriving at that decision, the court specifically considered the nature of the area in question, the relationship of the residents of the project to the Tribe and the federal government, the establishment and practice of government agencies toward the area, and the cohesiveness of the community. Although the housing project was funded and operated in much the same way as the project in the present case, the ownership of the land and the establishment and operation of the Housing Authority are important factors which distinguish the South Dakota case from the instant case.
In South Dakota, the housing project was originally located within the boundaries of an Indian Reservation. The Reservation was terminated in 189.1 and all non-Indian lands were returned to the public domain. This particular parcel was never an Indian allotment, but was instead sold by the United States. The land eventually came into the possession of a church which transferred it to the United States in trust for the Sisseton-Wahpeton Sioux Tribe by warranty deed. The deed contained a condition that the land be exclusively used for a low rent housing project. The housing project originated under a Tribal Ordinance enacted pursuant to the Tribe’s authority to provide for the health, safety and welfare of the Tribe. By this act, the Tribe created the Housing Authority whose stated purpose was to remedy the reservation problems of unsafe and unsanitary housing conditions. The land was leased by the Tribe to the Tribal Housing Authority for the purpose of constructing and operating a low rent housing project.
In the present case, the original allotment was sold to a non-Indian who in turn sold it to the Osage Tribal Housing Authority. The Housing Authority was created by the Oklahoma Housing Authority Act, 63 O.S.1981, § 1057, which provides in pertinent part:
There is hereby created, with respect to each Indian tribe, band or nation in the state, a public body corporate and politic, to function in the operating area of such Indian tribe, band, or nation to be known as the “housing authority” of said Indian tribe, band, or nation, which shall be an agency of the State of Oklahoma, possessing all powers rights, and functions herein specified for city and county authorities created pursuant to this act: Provided that said Indian housing authority shall not transact any business nor exercise its powers hereunder until or unless the governing council of said tribe, band or nation as the case may be, by proper resolution, declares that there is a need for an authority to function for said tribe, band or nation. (Emphasis added)
This section clearly states that the tribal housing authority is a state agency. In Housing Authority of the Choctaw Nation v. Craytor, 600 P.2d 314 (Okl.1979), the Oklahoma State Supreme Court held the tribal housing authorities created by Section 1057 to be state agencies subject to the jurisdiction of the state courts. We agree with this interpretation of Section 1057 and find that the tribal housing authorities created pursuant to that statute are state agencies subject to jurisdiction of the state courts. Therefore, as the Housing Authority is subject to state jurisdiction, land owned by the Authority is also subject to state jurisdiction.
Although the ownership of the situs of the crime by a state agency is a factor which distinguishes the present case, there are other factors to be considered before a determination is made whether the project is a dependent Indian community. These factors include the fact that the State of Oklahoma and the City of Pawhuska have considered the project to be under their jurisdiction since its origin. The state and city have provided all essential services.
For the foregoing reasons, the judgment and sentence is AFFIRMED.