By Joe Byrd And Brief
Defendant Joe Byrd, Principal Chief of the Cherokee Nation, has moved to dismiss the instant case on ground that the Cherokee Nation Courthouse, formerly known as the Cherokee Nation Capitol Building is not Indian country.
Defendant Byrd argues that the Tenth Circuit case of United States v Adair, 111 F.3d 770 (10th Cir. 1997) provided criteria that excluded the Courthouse as Indian country. This Court has previously reviewed, considered and applied the Adair case. There is no value in rearguing that case especially in light of the holding of the U.S. Supreme Court in Alaska v, Native Village of Venetie Tribal Government, 118 S.Ct. 948 (1998).
The Plaintiffs incorporate their “Reply to Supplemental Briefs Regarding Grant of Partial Summary Judgement” in response to Defendant Joe Byrd’s motion to dismiss herein.
Defendant Joe Byrd has argued that his predecessor in office, Wilma Mankiller made a request that the Courthouse be affirmatively placed in trust in 1993. However, no evidence has been presented that the Bureau of Indian Affairs determined that such affirmance was necessary or even if the BIA has ever received the subject application in 1993. It is telling that Defendant Joe Byrd has not since taking office in 1995 requested that the Courthouse be placed in trust by the BIA or determined that the 1993 letter was actually under consideration.
The only record clearly presented by Defendant Joe Byrd is that he stands arm in arm and hand in hand with the State of Oklahoma, City of Tahlequah, County of Cherokee and District Attorney’s office in an effort to place the most significant symbol of Cherokee survival and government under the jurisdiction of the State of Oklahoma.
Defendant Joe Byrd’s Motion to Dismiss should be overruled. Submitted this day of July, 1998.
Chadwick Smith, CNBA # 08
P.O. Box 9192
Tulsa, OK 74157-0192
FAX (918) 227-1588
IN THE JUDICIAL APPEALS TRIBUNAL CHEROKEE NATION
BRETT CRAWFORD, )
LEEANN DREADFULWATER, )
PEGGY TIGER, and )
DONNIE BLAIR, )
vs. ) Case JAT 97-36 )
DIANE BARKER-HARROLD, in her individual and official capacity, District Attorney of Cherokee County;
NORMAN FISHER, in his individual and official capacity,
City of Tahlequah Police Department: )
DELENA GOSS, in her individual and official capacity,
Sheriff of Cherokee County, State of Oklahoma; )
BOARD OF COUNTY COMMISSIONERS, Cherokee County; ADA DEER,
Under secretary for Indian Affairs, Department of Interior; )
JIM FIELDS, Muskogee Area Director of the Bureau of Indian Affairs; )
JOE BYRD, Principal Chief of the Cherokee Nation; )
REPLY TO SUPPLEMENT BRIEFS REGARDING GRANT OF PARTIAL SUMMARY JUDGEMENT
Defendants argue that two recent U.S. Supreme Court cases, Alaska v. Native Village of Venetie Tribal Government et al.., 118 S.Ct. 948, 1998 WL 75038 (U.S.) and Cass County, Minnesota, et al. V. Leech Lake Band of Chippewa Indians, ____ S.Ct. ___ 1998 WL 292068 (U.S.) undermines the reasoning and grant of partial summary judgement by this Court holding that the Cherokee Nation Courthouse is Indian country. However, upon examination of each case, the Court will find that neither case is dispositive of the issue of whether or not the Cherokee Nation Courthouse is Indian country and each case is clearly distinguishable.
There have a been a series of at least four themes of development of Indian country based on the individual federal policy and situation of the tribes. Those themes include: 1) The Five Civilized Tribes, the General Allotment Tribes, Pueblos, Alaska tribes and villages and a number of miscellaneous situations. However, the difference in the application of federal Indian law to each tribe is demonstrated in Venetie and Leech Lake.
Venetie is distinguishable because there was no federal preemption.
In Venetie, the U.S. Supreme Court decided that lands acquired by the Native Village of Venetie Tribal Government were not “Indian country” pursuant to 18 U.S.C. § 1151 (b). The Court held that “Indian country” status must satisfy two requirements:
1) “first, they must have been set aside by the Federal Government for the use of the Indians as Indian land”; 2) “second, they must be under federal superintendence.” Venetie at page 6, Exhibit “A” Barker-Harold Brief.
The history of Venetie is critical for the reasoning of the Court’s decision. The Court found that, in 1971, pursuant to the Alaska Native Claims Settlement Act (ANCSA) Congress revoked the Venetie Reservation and extinguished all aboriginal claims. Such an explicit action by Congress negated any finding that the Venetie lands had been set aside by the Federal Government for the use of the Indians as Indian land. Further, the Court found that the ANCSA was intended to avoid a “lengthy wardship or trusteeship.” Because the ANCSA was very clear on these two requirements, the Court found that the Venetie lands were not Indian country.
The Cherokee Nation and its Courthouse is a quite different case as argued later.
The Leech Lake case is distinguishable because the statutory scheme relating to that tribe provided for the cessation of its reservation.
The U.S. Supreme Court in Leech Lake does not address the issue of whether or not a tract of land is “Indian country”; it deals with whether or not fee patented lands pursuant to the General Allotment Act (GAA), 25 U.S.C. 331 et seq., reacquired by the tribe are subject to ad valorem tax on the land. The Court interpreted the Burke Act and the operation of the GAA as it applied to the Leech Lake Band of Chippewa Indians.
A critical factor in Leech Lake is that the Nelson Act of 1889, 25 Stat. 642, provided for the “complete cession and relinquishment” of tribal title to all reservation land in the state of Minnesota, except for parts of two reservations. Congress unequivocally disestablished the Leech Lake reservation and disposed of the lands. Further, Minnesota was P.L. 280 state which Congress gave criminal and civil jurisdiction over Leech Lake.
The Plaintiffs herein have argued that the Indian Nonintercourse Action, Trade & Intercourse Act, ch. 161, § 1, 4 Stat. 729 (1834), 25 U.S.C. § 177, prevents alienation of the Courthouse. The U.S. Supreme Court left open that question in Leech Lake whether lands reacquired by a tribe are subject to § 177. See Venetie, Footnote 5.
Although Indian lands being taxable is one index of Indian country, it is telling and undisputed that the Defendants herein have never taxed the Courthouse or attempted to tax the Courthouse through ad valorem or other taxes.
Unlike the tribes in Venetie and Leech Lake, the Cherokee Nation has not ceded its governmental rights, power and authority over the Cherokee Nation proper to the United States or the State of Oklahoma.
Critical in the U.S. Supreme Court’s analysis in Venetie and Leech Lake was the proposition that each of those tribes ceded their lands to the federal government, their reservations were disestablished, and jurisdiction was specifically given over their lands to the respective states, i.e., Alaska and Minnesota.
The Cherokee Nation has never ceded the Cherokee Nation proper to the federal government. “Cede” means to transfer between governments. The Cherokee Nation is a domestic dependant sovereign. Cherokee Nation v. Georgia , 30 U.S. (5 Pet.) 1, (1831) . The federal government has used the word “cede” in each of its treaties where the Cherokee Nation sold or exchange land to the federal government and surrendered its government claims.Treaty of July 2, 1791, 7 Stat. 39, provides in Article VII, “The United State solemnly guarantee to the Cherokee nation, all their land not hereby ceded. Treaty of October 2, 1798, 7 Stat. 62 provides in Article IV that the Cherokee Nation “…relinquish and cede to the United States…” certain lands. Also see Article VI. Treaty of October 24, 1804, 7 Stat.228 provides in Article 1st for the Cherokee Nation to “relinquish and cede” certain lands. Also see Article 2d. Treaty of October 25, 1805, 7. Stat. 93, Article 1st provides for the Cherokee Nation to “cede” a tract of land to the United States. Also see Article 3d. Treaty of September 11, 1807, 7 Stat. 103 provides for the Cherokee Nation to “cede” land to the United States. Treaty of March 22, 1816, 7 Stat. 138 provides for the Cherokee Nation to “cede” land to South Carolina. Treaty of September 14, 1816, 7 Stat. 148, Article 3 provides for the Cherokee Nation to “cede” land to the United States. Treaty of July 8, 1818, 7 Stat. 156 provides in Articles 1, 3 , 5, 7 and 10 for the Cherokee Nation to “cede” lands to the United States. Treaty of February 27, 1819, 7 Stat. 195 provides in the Preamble, Article 1, 2, 5, and 7 for the Cherokee Nation to “cede” land to the United States. Treaty of May 6, 1828, 7 Stat. 311 Article 5 confirms the United States “ceded” land to the Cherokee Nation in the Indian Territory. Treaty of February 14, 1833, 7 Stat. 414, Article II provides for the confirmation of the Cherokee Nation “ceding” land to the United States. Treaty of December 29, 1835, 7 Stat.478, provides in Articles 1, 3, and 5 provide for the Cherokee Nation to “cede” lands to the United States. Treaty of July 16, 1866, 14 Stat. 799 provides in Article XVII that the Cherokee Nation “cede” land to the United States. Further, in the Act of March 3, 1893, 27 Stat. 612, the Cherokee Nation “ceded” to the United States the Cherokee Outlet. Only once in the numerous treaties was the word “convey” used in transactions between the Cherokee Nation and the United States which was in the phrase “cede relinquish and convey.” See Treaty of December 29, 1835, 7 Stat.478, Article 1. The word “cede”, in the consistent context of federal-Indian relations and especially with the Cherokee Nation as found in the allotment acts from 1893 to 1906, means the transfer of the sovereign interest of governments. Pursuant to the subject allotment acts, the title of the Cherokee Nation real estate was not being transferred between sovereigns, but was transferred by the Cherokee government to its citizens, i.e. its proprietary interest was being conveyed. The Cherokee Nation never ceded anything in the acts providing for allotment. In fact, Congress explicitly provided that the Cherokee Nation continue in full force and effect pursuant to the Five Tribes Act. See footnote 4.
There is no federal legislation or agreement in which the Cherokee Nation ceded the Cherokee Nation territory or any aspect of it. The clear and unequivocal fact and proposition of law is that the Cherokee Nation was not dissolved and was continued in full force and effect by federal law. The Cherokee Nation agreed to allot its land to its citizens; no where in the subject acts did the Cherokee Nation renounce its territorial or civil jurisdiction claim over land, property and citizens in question as it did in the various treaties in which it ceded land.
The Five Civilized Tribes, including the Cherokee Nation, were excluded from the General Allotment Act. See 25 U.S.C. § 339. The allotment provisions for the Five Civilized Tribes were unique and contained in the subject acts from 1898 until 1906 as discussed above. See footnote 4. Therefore, the Cherokee Nation still possesses those attributes of sovereignty over its lands, property, and citizens not explicitly ceded or taken by congressional action. Proposition Four: The undisputed facts show the Courthouse was set aside and superintended by the Federal Government.
The original territory of the Cherokee Nation constituted Indian country or a reservation.
The Cherokee Nation exchanged its lands in the southeast United States for lands in Indian Territory pursuant to the Indian Removal Act of 1834, receiving a fee patent from the federal government, the highest form of title exchanged between sovereigns. The United States Supreme Court, in United States v Celestine, 215 U.S. 278 (1909) held that the lands described in the statute were indeed “Indian Country.”
The Cherokee Nation territory, composed of all or part of the fourteen (14) northeastern counties of Oklahoma was Indian country pursuant to the Indian Removal Act and Celestine. This designation was prior to the adoption of 18 U.S.C. § 1151 which provides the federal criminal jurisdiction definition of Indian country.
In Indian Country, U.S.A. Inc. v. Oklahoma Tax Commission, 829 F.2d 967 (10th Cir. 1987), the Tenth Circuit held that the Creek Nation Bingo Hall located on an unallotted tract of land adjacent to the Arkansas River in Tulsa, referred to as the “Mackey site,” was Indian country and outside the criminal or regulatory jurisdiction of the State of Oklahoma. The analysis of this case is quite pertinent and persuasive to the argument of the Plaintiffs. The Indian Country U.S.A. analysis clearly shows that fee lands within the Cherokee Nation may be Indian country.
The boundaries established by the 1838 and 1846 Fee Patents by the federal government establish the exterior reservation boundaries of the Cherokee Nation. There has never been any congressional action to disestablish these territorial boundaries or reservation. Therefore, the territorial boundaries or reservation to the Cherokee Nation are defined by the fee patents of 1838 and 1846. The Eight Circuit, in Mehlin v Ice, 56 F. 12, 16 (8th Cir. 1893), held:
The tenure by which the Cherokee Nation hold its lands and its relation to the United States in other respects, are widely different from that of the ordinary Indian tribes. By the treaties between the United States and the Cherokee Nation of February 14, 1833, (7 Stat. 414) and of December 29, 1835 (Id 478), the United States granted to the Cherokee Nation, in fee simple, the lands now occupied by the Cherokees. These treaties in terms stipulated that a patent should be issued by the United States to the Cherokee Nation for lands thereby granted, and on the 1st day of December, 1838, a patent for the lands was issued by the President in execution of the obligations imposed upon the United States by these treaties, and the validity of this patent has been affirmed by the supreme court.
It is uncontradicted that the Cherokee Nation Courthouse is within the boundaries of the Cherokee Nation territory or reservation. The federal government set aside the Cherokee Nation proper in the fee patents of 1838 and 1846 for the benefit of the Cherokee Nation.
Against, this historical background, the federal government has continued its preemption of state jurisdiction by rebuilding the judicial infrastructure of the Cherokee Nation at the Courthouse.
By funds appropriated by Congress in 1978, the Cherokee Nation was entitled to a grant of $910,000 from the United States Economic Development Administration which it provided for the purchase of the Courthouse. The Courthouse was acquired by federal funds under the authority of the federal government unlike the cases of Venetie and Leech Lake.
The federal government has superintended over the Courthouse since 1991 by providing funds for the Cherokee Nation Courts to operate at the Courthouse. As of fiscal year 1997, the federal government has granted the Cherokee Nation $781,275 to reestablish and operate its court system at the Courthouse. Congressional intent to further tribal court systems and tribal self-government was expressed in the “Indian Tribal Justice Support Act,” 25 U.S.C. § 3601.
Unlike the Venetie case, the federal funding to the tribe was to rebuild its governmental infrastructure at the Courthouse by acquisition and continued funding maintenance and guidance.
Also it should be noted that unlike the Venetie case where the Congress showed a clear intent to avoid a “lengthy wardship or trusteeship,” the federal government went to extremes to created a “lengthy wardship or trusteeship” regarding the Cherokee Nation.The Curtis Act, Act of June 28, 1898, 30 Stat 495, Fifty-fifth Congress Sess. II Chap 517 the federal government took control over land disputes within the Cherokee Nation, provided for allotment of the lands, controlled introduction of alcohol, established provisions for townsite, provided for a Commission to the Five Tribes, and assumed jurisdiction over tribal court. The Cherokee Agreement, Act of March 1, 1901, 31 Stat. 848 Fifty Six Congress Sess II Chap 675, provided for a more detailed scheme of allotment, wherein the federal government appraised land provided for membership roles, assumed control over the Cherokee schools and newspaper, required tribal laws be approved the government. The Cherokee Supplemental Agreement, Act of July 1, 1902, 32 Stat. 716, Fifty-Seventh Congress, Sess. I Chap 1375 provided a more detailed scheme of allotment of the lands of the Cherokee Nation to its citizens. In addition to previous acts, the federal government agreed to remove intruders, took control of road, provided for collection and distribution of tribal money. The last comprehensive act relating to the allotment of the Cherokee Nation lands was the Five Civilized Tribes Act, Act of April 26, 1906, 34 Stat. 137, Fifty-Ninth Congress, Sees. I Chap 1876. Section 28 of the Five Civilized Tribes Act provided, “that the tribal existence and present tribal governments of the …Cherokee…tribes or nations are hereby continued in full force and effect for all purposes authorized by law, until otherwise provided by law… Section 29 provided, “That all Acts and parts of acts inconsistent with the provisions of this Act be, and the same are hereby, repealed. emphasis added. The Commission to the Five Tribes began control of virtually every aspect of tribal government and management of its assets. The Commission to the Five Civilized Tribes (Dawes Commission) and its successor, the Bureau of Indian Affairs, created an enormous bureaucracy in furtherance of a complicated trusteeship. Also see Angie Deboe, “And Still the Waters Run: The Betrayal of the Five Civilized Tribes,” Princeton University Press, 1972.
The Courthouse was transferred to the Federal Government according to the Defendants.
It is telling that none of the Defendants elected to address the most distinguishing argument regarding the Courthouse. Unlike Venetie and Leech Lake, the Courthouse was ordered transferred to the federal government in trust for the Cherokee Nation by a state District Court The City of Tahlequah and the County of Cherokee were parties and the State was represented by the District Attorney’s office in a 1978 suit which transferred the Courthouse to the federal government for the benefit of the Cherokee Nation. The Journal Entry in Case No 78-327 provides in part:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED BY THE COURT that pursuant to the agreement of all the parties hereto, including the Cherokee Nation of the State of Oklahoma, one of the Plaintiffs herein, that the said Plaintiff has heretofore made a grant or gift to the City of Tahlequah, Oklahoma, in the total amount of Nine Hundred Ten Thousand and no/100 ($910,000) Dollars from monies received by it from the Economic Development Administration…
it being the judgement of this Court that such conveyances by Cherokee County, Oklahoma, to the Cherokee Nation of Oklahoma, come within the purview of Title 19, Oklahoma Statutes section )( 349 Laws of 1963, whereby County Commissioners of Counties of the State of Oklahoma are authorized and empowered to execute conveyances to the United States of America for the acquisition of needful public buildings and such a conveyance to the Cherokee Nation of Oklahoma, is in effect a conveyance to the United States of America. (Emphasis added)
The subsequent fee simple deed transferred the Courthouse to the Cherokee Nation but failed to recite the finding and holding of the Court that the conveyance was to the United States of America. If the deed correctly reflected the judgement of the District Court and the agreement of the parties including the City of Tahlequah, Cherokee County, State of Oklahoma, Cherokee Nation and United States, it would have provided that the Courthouse was transferred to the United States of America for the benefit of the Cherokee Nation, i.e. trust deed. The County, pursuant to state law, had authority to convey the Courthouse only to the United States. The Oklahoma statute by which the County transferred the Courthouse, 19 O.S. § 349, provides: The county commissioners of counties of the State of Oklahoma are hereby authorized and empowered to execute offers to convey lands and to execute deeds of conveyance on such lands as are owned by such counties, acquired through gift, purchase, condemnation or tax resale, and no longer needed for county purposes, to the United States of America or any city, town or school district said county, for a consideration to be determined by such commissioners, to aid the United States of America or any city or town within the said county in the acquisition of such lands by purchase, condemnation or otherwise, required for sites for forest reserves, game preserves, national parks, irrigation or drainage projects, or for needful public buildings, and for any other purpose for the United States Government or any city or town within said county. Conveyances of like character heretofore made to the United States Government or any city or town within said county, are in all things hereby ratified, confirmed and legalized. (Emphasis added.)
The Cherokee County District Court specifically found and held that the transfer was pursuant to 19 O.S. § 349. The Journal Entry of January 4, 1979 transferred the Courthouse to the United States in trust for the Cherokee Nation. The deed issued subsequently and based on the Journal Entry cannot be meaningfully read without incorporation of the Journal Entry.
The judgement has been on filed and the parties have relied on the judgement for nearly twenty (20) years. Defendants City of Tahlequah and Cherokee County received the benefit of the $910,000 and now argue that the land was transferred to the Cherokee Nation in fee simple. Such an argument is in stark violation of state law. The Cherokee Nation and the United States provided the purchase money, participated in the transaction approved by the District Court as evidenced by the Journal Entry and, in return, the federal government received the property as provided in state law. All the parties and the Defendants herein are bound by their own actions of twenty years ago. Defendants are barred by the doctrines of collateral estoppel, res judicata, or issue preclusion from asserting that the Courthouse was not transferred to the United States because each was represented in the previous adjudication. SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, (10th Cir.(Okla.), 1990).
If the Defendants now at this late date are suggesting that record is wrong and recision is appropriate, the Defendant must tender the $910,000 it accepted from the Cherokee Nation and United States.
The United States has a reversionary interest in the tribal lands of the Cherokee Nation pursuant to the patents of 1838 and 1846. The Cherokee Nation by federal statute, 25 U.S.C. section 177 may not convey the Courthouse without congressional approval. County of Oneida v Oneida Indian Nation of New York State, 470 U.S. 226, 105 S.Ct. 1245, 1250, 84 L.Ed.2d 169 (1985); Mohegan Tribe v Connecticut, 638 F.2d 612, 621 (2d Cir. 1980) cert. denied, 452 U.S. 968, 101 S.Ct. 3124, 69 L.Ed.2d 981 (1981).
It should be further noted that the 1979 Journal Entry transferring the Courthouse to the federal government took place prior to adoption of regulations in 1980 for the Bureau of Indian Affairs to take land into trust. See 25 CFR § 151.2.
Quite simply, the Cherokee Nation Courthouse is trust land, held by the federal government for the benefit of the Cherokee Nation as provided in the District Court case brought by the Defendants twenty years ago. Since that trust land is within the reservation boundaries of the Cherokee Nation, it is Indian country pursuant to 18 U.S.C. §1151. These facts distinguish the Venetie and Leech Lake cases to the point where they are of no assistance to the Defendants in their arguments.
Contrary to the argument of Defendant Norman Fisher, this court has authority to determine whether the Courthouse is Indian country.
Defendant Norman Fisher argues that this Court has no authority or jurisdiction to determine whether or not the Courthouse is Indian country citing Venetie. However, Plaintiffs can find no language in Venetie that supports such an assertion. To the contrary, the Tenth Circuit in Enlow v Moore, 134 F.3d 993, (10th Cir. 1998) held that the courts of the Muskogee (Creek) Nation could determine whether or not land in a boundary dispute was “Indian country.” This Court may determine whether or not its own Courthouse is Indian country or not.
The grant of partial summary judgement by this Court was based on a firm foundation of history, fact and law. The subsequent cases of Venetie and Leech Lake are distinguishable and do not aid the Defendants, incredibility enough including the Principal Chief of the Cherokee Nation, to wrestle away from the Cherokee Nation its most significant landmark and have it placed under the jurisdiction of the State of Oklahoma.
Equally incredible is that the Defendants now, twenty years after endeavoring to place the ownership of Courthouse in the United States for the benefit of the Cherokee Nation, come to this Court arguing that it is the Cherokee Nation which has the simple fee interest solely. Such an argument misstates the record.
This Court properly determined that the Courthouse was and is Indian country and even under the federal set-aside and superintendence requirements of Venetie, the Courthouse is Indian country. Secondly, the Courthouse is Indian country because it is land held by the federal government in a trust created by the Defendants twenty years ago within the reservation boundaries of the Cherokee Nation.
Under either legal analysis, the Cherokee Nation Courthouse is Indian country. The Court should find that it granted the Defendants’ motions to reconsider its previous grant of partial summary judgment, considered Venetie and Leech Lake and reaffirm its previous order that indeed the Cherokee Nation Courthouse is Indian country..