Thomas Roye Wahpekeche v. David Rogers, Warden

Petitioner is an Indian who was convicted by the State of Oklahoma for a crime that was committed on land that is within the Citizen Potawatomi Nation (“CPN”) Reservation, is part of an original CPN/Absentee Shawnee Allotment, and/or is a dependent Indian community. Before, during, and after his conviction, Petitioner has maintained the State of Oklahoma lacked jurisdiction over him and presented evidence the CPN Reservation was not disestablished and deeds proving the land is an Indian Allotment. At each stage, the courts have disagreed but for different reasons. The questions presented are:

1. Did Congress disestablish the CPN Reservation through the Act of March 3, 1891?

2. Were the restrictions on the Indian Allotment on which the alleged crimes were committed ever extinguished? 3. Can a habeas petitioner waive or fail to preserve an argument regarding subject matter jurisdiction?

3. When a criminal defendant demonstrates the land on which he is accused of committing a crime was originally an Indian Allotment, is it the State’s or the defendant’s burden to prove the Indian title and restrictions were extinguished or remain in place?