In 1992 Judge Tina Glory Jordan ruled W.W. Complex is Indeed INDIAN COUNTRY!
In a 1992 case prosecuted before Judge Tina Glory Jordan, she ruled that the restaurant and motel that occupys acreage around the W.W. Complex is indeed INDIAN COUNTRY!… It appears that Chad Smith, the Cherokee Nation prosecutor at the time, has been defending and preserving our tribal land/Indian Country for many years… HERE is a portion of the transcript from a taped hearing in front of then Judge Tina Glory Jordan
Tina Glory-Jordan’s ruling was found to be real eye opening. It certainly appears that Tina Glory-Jordan could not possible agree with or buy into Byrd’s 1997 and 1998 legal arguements that seek to force our Indian Country/Tribal land under the jurisdiction of the state of Oklahoma and the DA’s office of Dianne Barker-Harrold.
IN THE DISTRICT COURT OF THE CHEROKEE NATION, OKLAHOMA
Plaintiff,) vs. – CR 91-26
FARLAN QUAN, – Defendant.
and CHEROKEE NATION
Plaintiff,) vs. CR 91-27
VICTOR TAH, Defendant.
TRANSCRIPT OF TAPE RECORDED proceeding on Cherokee Nation’s Motion for Reconsideration, before Judge Tina Jordan on the 24th day of January, 1992, at Tahlequah, Oklahoma, commencing at the hour of 2:00 p.m., in the District Court of the Cherokee Nation.
FOR CHEROKEE NATION:
Mr. Chad Smith, Prosecutor
P.O. Box 948
Tahlequah, OK 74465
THE COURT: Victor Tah and Farlan Quan, come forward please. Okay, I believe we’re here today to hear oral arguments on a Motion for Reconsideration filed by the prosecutor in the above docket, CR-91-26 and CR-91-27. I note that both defendants in these cases, Farlan Quan and Victor Tah are both present in Court today. And, I also note that the brief in support of the motion has been filed by the tribal prosecutor with the court clerk. I note that a notice was sent out allowing the defendants in this action to respond to this brief. And, have you so done? Have you filed a response?
MR. TAH and MR. QUAN: …THE COURT: …MR. TAH and/or MR. QUAN: …
THE COURT: Okay. Mr. Smith do you have oral arguments in support of your brief?
MR. SMITH: Yes, Your Honor, I would like to supplement our brief in support of our Motion for Reconsider. The issue before the Court is whether the job corps facilities which has been commonly called as job corps facilities, although in our brief we consistently referred to it as the W.W. Keeler Complex. Specifically on that complex, what’s been referred to as the restaurant site because that’s how it is identified in historical documents. I would in support of our arguments, Your Honor, that that site is Indian Country, refer the Court to a federal court ruling in the Western District of Arkansas U.S. v Rogers, reported in 23 Federal Reporter, 658, cited 1884. Your Honor, in that case, I can reflect on history, the Cherokee Nation was then what is now known as the fourteen counties. We also had the Cherokee Outlet at that time. This part of the country was called Indian Territory. And The Western District of Arkansas had federal jurisdiction over Indian territory.
In this case, Your Honor, U.S. v Rogers, a crime was committed on the Cherokee Outlet. We had reserved to us the rights of self-governance in the treaties of 1835, 1846, and as late at 1866. In the U.S. v Rogers case the crime that occurred in the Cherokee Outlet, the dispute there was whether that land, that Outlet, had been set aside and apart for the Cherokees, because an Act of January 6, 1883 provided for federal jurisdiction over then the Western part of the Cherokee Nation, that being the Cherokee Outlet, and all that land west of the 100th Meridian, that being generally about four degrees on the other side of the Tulsa County/ Osage County line now. This 1883 Act provided that, provides all that part of the Indian territory lying north of the Canadian River, East of the Texas River, and the 100th Meridian, not set apart and occupied by the Creek, Cherokee, and Seminole Tribes, shall be after the passage of this Act and Acts that constitute a part of the United States Judicial District of Kansas. So the dispute there was whether this crime occurring in the Cherokee Outlet, was under the jurisdiction of the Kansas federal court or under the Western District of Arkansas over Indian Territory. The dispute her was whether the Cherokee Outlet had been set apart and occupied by the Cherokees. In citing from that case Your Honor, it says, “By the treaties and patent referred to above, the Cherokee Outlet was beyond question set apart to the Cherokees.” The quote goes on to say, that if they had a title of any degree whatever, it was set apart to them. If it was set apart and occupied by this tribe it is not within the jurisdiction of the District Court of Kansas.
I admit that this is not a dispute between state jurisdiction and federal jurisdiction. It’s a dispute of which federal court has jurisdiction. This Court went on to find Your Honor, that the Cherokee Nation — the evidence of this case shows the Cherokee Nation has constantly and at all time since they obtained the Outlet claimed it and exercised acts of ownership and control over it. The Nation has collected at different times a grazers tax from white men who were grazing their stock on it. Individual Indians have gone on it and fenced off large tracts of land on the Outlet. Different Individual Indians have gone out and lived on it and now live on it. But, since the passage of this law in January 6, 1883, the Cherokee Nation has leased to citizens of the United States for grazing purposes, six million acres of this Outlet. That under the provisions of the sixteenth article of the Treaty of 1866 with the United States, they sold tracts on this Outlet for reservations to the Pawnees, Poncas, Nez Perce, Otoes, and Missourias. That the Cherokee Nation has never been any part of the Outlet except where is has sold, it comes down to hold, Your Honor, here is a plain recognition of the title of the Cherokees by the government of the United States with their wide position and jurisdiction. The Court went on to hold that it was therefore not within the jurisdiction of the Kansas District Court. This comes out and I’ll provide the Court with copies, this excerpt comes out of the jurisdictional report prepared by the staff of Indian Affairs back in 1892 and I offer that for the proposition Your Honor, that where the Cherokee Nation has had land set aside for it’s occupancy and use, jurisdiction lies with the Cherokee Nation.
The Court may reflect upon the documents offered in this case, that the W W Keeler Complex was provided to the Cherokee Nation by special legislation by the federal government. It’s very clear from that legislation that the W.W. Keeler Complex was set aside and apart specifically for the Cherokee Nation. That coupled with the fact, Your Honor, that we’ve had numerous assertions and guarantees of self governance and jurisdiction over our own people and operations. The treaties as late as 1866, provides us a special reason to assert jurisdiction at the W.W. Keeler Complex. That is a site of our government. That is the site where we have imported the Talking Leaves Complex. As a creature of our own thought, we went out and solicited it, designed it for Indians and Indian programs, recruiting principally American Indians. It is on our site exclusively set aside for the jurisdiction of the Cherokee Nation.
We believe for the purpose of criminal jurisdiction in the first place, and probably the easiest way to define being Indian Country is as a dependent Indian community. In the alternative, perhaps supplementary and complimentary, the W.W. Keeler Complex is Indian Country under 18 U.S.C. 1151 (a), being under modern definition, a reservation. A reservation not necessarily being property set aside and held in trust by the federal government. But I do cite cases in our brief Your Honor, that a reservation under modern Indian law, is any property set aside for the exclusive use of Indians under the superintendence of the United States government. The jurisdictional boundaries of the Cherokee Nation have never been disestablished. The Curtis Act of 1898, the Cherokee Agreement of 1902, and the Five Tribes Agreement of 1906 intended for the extinguishment of the Cherokee Nation and for it’s dissolution, but as the – I believe it’s Section 26 of the Act of 1906, the Five Tribes Statute, or I think it’s generally referred to as an Act to wind up the final affairs of the five tribes. That particular act, generally referred to as the Five Tribes Act specifically provided that the government of the Cherokee Nation shall continue in full fact and force until further notice — that notice has never come. Therefore, we still have our jurisdictional boundaries. And under the holding of U.S. v Rogers, land set aside for us within that territorial jurisdiction still remains Indian Country.
I think in the case law even apart from that, the W. W. Keeler Complex is a dependent Indian community by the number of federal contacts, the character of those federal contacts, the purposes and design of the Cherokee government at that location. We would ask the Court to reconsider it’s earlier decision, and move the Court to find at this time that, that particular tract, the W.W. Keeler tract, is Indian Country for purposes of criminal prosecution within this Court….
THE COURT: Mr. Smith, I’m inclined to consider your motion, but I’m only going to consider your motion as it relates to that portion of what you’re calling the W.W. Keeler Complex, and more commonly called, I believe, the restaurant and motel area. I will consider any of your arguments as far as the whole complex is concerned. I think today — and what these defendants are concerned with is where this action purportedly took place which I understand to be the motel and the restaurant area that is now housing — what is the? CLERK: Talking Leaves Job Corps site
THE COURT: Talking Leaves Job Corps site. So we will limit any decision by this Court as to what might be Indian Country to just that area.
MR. SMITH: I understand the Court’s decision. Of course the Court understands my argument is that that site is indistinguishable from the balance of the property there.
THE COURT: I do take notice that in your brief that you have prepared that you do footnote the fact that this 6.73 acre site was until a year ago financed in a public trust maintained by the Cherokee County, State of Oklahoma. And that, that has since come out of that public trust and has been deeded back in fee simple to Cherokee Nation of Oklahoma. I think that occurred back in 1990, if I’m correct. I also am persuaded by several of your arguments only as far as they might go to defining the 6.73 acres as a dependent Indian community. I am not persuaded by your argument that under certain federal statutes basically anything that might be owned by the Cherokee Nation would be considered Indian country.
MR. SMITH: If I could clarify, Your Honor?
THE COURT: If you’d like to address that issue, that would be fine.
MR. SMITH: I would not want to suggest to the Court that any land purchased by the Cherokee Nation within the Cherokee Nation would automatically become Indian country. The peculiar situations of this case was that in, I believe it was in 1970, a special federal enactment called for this land to be given to the Cherokees, therefore, being set aside exclusively for the use of the Cherokees, similarly too, the patent of 1838, at least in legal context, and therefore coming within the rule of law found in U.S. v Roger…
THE COURT: That’s a point well taken by the Court. So that will not in any way be considered and we’ll take notice of that today on record that everyone seems to be in agreement that just because the Tribe owns it, does not necessarily mean that that particular piece of property would be considered Indian country. It has to have other attributes about it, and has to be those attributes that have been used commonly in cases before us today. Somewhat, I’m persuaded by some of the arguments made in the Seminole Housing Authority v Harjo case, where the Court outlined some particular traits that might possible allow property to fall into that definition of what a dependent Indian community is. And, that is a very recent case so I was much persuaded by some of the arguments made in that case. Can the prosecutor tell me whether other courts have assumed jurisdiction over this particular area?
MR. SMITH: Your Honor, I did not check with the prosecutor’s office. I did inquire of Mr. Tah and Mr. Quam and they advised me that there has been no other prosecution of this case or this offense. I would ask for the record, Your Honor, not knowing what the Court’s ruling will be, but I believe we submitted to the Court a statement of facts and…
THE COURT: Did you file those of record?
MR SMITH: I believe we filed those at the same time we filed the brief. I would just like the record to show if the Court will permit that those be admitted into evidence.
THE COURT: Okay, is there objection by the defendants that the statement of facts filed on November 22, 1991, with the court clerk for the tribal court of Cherokee Nation, is there any objections by the defendants that that be admitted into the record?
THE COURT: I might ask one other thing now. I think it says somewhere in here, and you refresh my memory Mr. Smith. — does it give a breakdown within that statement of fact that is being accepted into the record at this time, what the breakdown is of Indian students there in the Talking Leaves organization?
MR. SMITH: I believe it does Your Honor. I believe there’s a recitation as to the percentage of Indian students and of…
THE COURT: Sixty-two percent (62%) of the students are Indian?
MR. SMITH: Yes, and close to one hundred percent (100%) of the staff are Indian.
THE COURT: Are there any other comments by any of the parties? I am persuaded by the argument made by the prosecutor, by Mr. Smith in his brief and in his oral arguments. I am much persuaded by some of the information that has been given to me in the statement of facts that has been made a part of the record. I AM GOING TO MAKE A FINDING. Based on the prosecutor’s Motion for Reconsideration, I am going to find that the 6.73 acres described as the motel and the restaurant which is a portion of the total W.W. Keeler Complex — I’m only going to rule on the 6.73 acres at this time because I think that’s all that we’re involved in with this particular case. I am going to make a ruling based on the information I have here in front of me that this 6.73 acres IS A DEPENDENT INDIAN COMMUNITY as defined by current case decisions. Do the defendants at this time have any statements to make?
TAH/QUAM: No ma’am
*From this point on the Court clarifies that the defendant was charged with public drunkeness, and the court, prosecutor and defendant work out a community service plan in lieu of jail time and the details re: same.