At the center of the case is a man named Thomas Wahpekeche, who in 2015 was convicted of sexual abuse crimes against a minor and was prosecuted in state court. Wahpekeche's appeal argues that the state never had jurisdiction to prosecute him because the crimes occurred inside Indian Country, or within the Citizen Potawatomi Nation reservation.
The court recognized that CPN had a reservation, but needed to verify whether it was still intact or whether a 1891 statute disestablished it. The court ultimately found the latter.
"The statute described the tribe's surrender of interests forever and absolute, id., and the Supreme Court has characterized this language as sufficiently clear to disestablish a reservation," the opinion stated.
The court also rejected Wahpekeche's other jurisdiction arguments, saying they were not raised properly or were unexplained.
One of those arguments was that the crimes occurred in a house held by the Housing Authority of the Absentee Shawnee Tribe, which is a part of a dependent Indian community and is therefore Indian country. But as the court pointed out, Wahpekeche did not make this point in his habeas petition or supporting brief.
"In the objection, Mr. Wahpekeche also argued that the Absentee Shawnee tribe enjoyed exclusive jurisdiction because he had bought his home from the Absentee Shawnee Tribal Housing Authority," the opinion stated. "On appeal, Mr. Wahpekeche theorizes that the crimes took place in a dependent Indian community. But Mr. Wahpekeche failed to preserve this theory in his habeas petition."
Robert Gifford is a Cherokee Nation citizen and a tribal court judge for multiple tribes. He said the recent opinion still highlights the potential of the dependent Indian community argument despite Wahpekeche not preserving it.
"The court says, you know, there could have been another argument here, but you didn't raise it," Gifford said. "Which is sort of sort of a like a sending a message out to say, 'Look, pay attention. Somebody might want to raise this argument again. But when you do, make sure you include these other arguments as well."
Though he said it's unlikely the CPN reservation could be reaffirmed any time soon, Gifford noted the landmark McGirt case — which reshaped much of eastern Oklahoma as Indian Country — started in a similar way.
"McGirt filed his motion pro se," Gifford said. "So his case started all by himself. It wasn't until it started getting traction … when the tribe said, we'll do an amicus brief."
Citizen Potawatomi Nation officials declined to comment.
This report was produced by the Oklahoma Public Media Exchange, a collaboration of public media organizations. Help support collaborative journalism by donating at the link at the top of this webpage.
