Thomas Roye Wahpekeche, a member of the Kickapoo Tribe, was convicted in Oklahoma state court of multiple serious crimes against minors, including rape and lewd acts. He filed a habeas corpus petition in federal district court, arguing that the state court lacked jurisdiction to prosecute him because the crimes occurred in Indian country. Wahpekeche claimed the land was part of the Citizen Potawatomi reservation, a dependent Indian community, or an Indian allotment, which would have granted him immunity from state prosecution under federal law. The district court dismissed the petition, and Wahpekeche appealed to the Tenth Circuit, seeking a certificate of appealability on all issues.
The Tenth Circuit began by addressing the core jurisdictional question: whether the Citizen Potawatomi reservation still exists. Citing the Supreme Court's decision in McGirt v. Oklahoma, the court noted that disestablishment requires a clear congressional expression of intent to surrender tribal interests. The court examined the Act of March 3, 1891, which authorized the Citizen Potawatomi Tribe to cede, relinquish, and 'forever and absolutely surrender' all claims to their land in exchange for $160,000. The court found this language, coupled with the payment of compensation, created an 'almost insurmountable presumption' that Congress intended to diminish the reservation. Wahpekeche argued that the reservation was only partially diminished, but the court rejected this because the statute covered the entire 575,870-acre reservation. The court also dismissed Wahpekeche's reliance on later Supreme Court cases that mentioned the tribe, noting those opinions did not discuss disestablishment and thus did not constitute binding precedent. Consequently, the court held the 1891 statute unambiguously disestablished the entire reservation. Next, the court addressed Wahpekeche's alternative arguments that the land was a dependent Indian community or an Indian allotment. The court found these arguments were waived. Wahpekeche did not raise the dependent Indian community argument in his initial habeas petition or supporting brief; he raised it for the first time in an objection to the magistrate judge's recommendation, which is procedurally insufficient. Regarding the allotment argument, while Wahpekeche mentioned it in his petition, he failed to specifically object to the magistrate judge's factual finding that the land had lost its allotment status. The court applied a plain error standard and found no clear error, as the record showed the land had lost its trust status and the Department of Interior had confirmed no reservations covered the land. Finally, the court addressed five other claims, including ineffective assistance of counsel and due process violations. The court found these claims were unexhausted because Wahpekeche failed to present them to the state appellate court in a procedurally proper manner. The court rejected Wahpekeche's argument that the state had conceded exhaustion, noting the state explicitly argued the claims were not exhausted. The court also affirmed that the district court could consider exhaustion sua sponte. Because Wahpekeche could not show cause and prejudice or a fundamental miscarriage of justice, the claims were barred by an anticipatory procedural default.
The decision affirms the state court's jurisdiction to prosecute Wahpekeche for crimes committed in the area, as the land is no longer considered Indian country under the disestablished reservation. The ruling reinforces the strict procedural requirements for preserving jurisdictional arguments in habeas proceedings and clarifies that the 1891 statute terminated the Citizen Potawatomi reservation entirely. The case is remanded with instructions to affirm the district court's dismissal, leaving Wahpekeche's convictions intact.
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