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Civil Rights Suit Filed In
Eastern District of Oklahoma


IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF OKLAHOMA

LINDA-TURNBULL LEWIS, et. al.,)
Plaintiffs,)

Case No. CIV-97-689-B Lead)

DIANE BARKER-HARROLD, et. al.,)
Defendants.)

and

CHADWICK SMITH, et. al.,)
Plaintiffs,)

Case No. CIV-97-690-B Member)

DIANE BARKER-HARROLD, et. al.,)
Defendants.)

CONSOLIDATED RESPONSE OF PLAINTIFFS TO THE DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT /DISMISSAL
AS TO QUALIFIED IMMUNITY

           The Plaintiffs herewith respond to the motions for summary judgement and dismissal filed by Defendants on grounds of qualified immunity as follows:

I. INTRODUCTION

           Plaintiffs object to the Defendants’ Motions regarding qualified immunity and submit this consolidated brief. Plaintiffs adopt the facts verified in their Complaint filed herein.

           Plaintiffs object to the characterization of the controversies of June 20, 1997 and August 13. 1997 by Defendant Norman Fisher as “uprisings.” See page 2 and 7 of Brief in Support of Summary Judgement. Perhaps Norman Fisher finds such references to be “cute” but Plaintiffs find such references to be at the least patronizing and at the worst racist. This is the attitude by local, state and federal authorities which have contributed to and perpetuated the Cherokee Nation constitutional crisis. The effort by an elected Cherokee executive to disembowel the constitutional structure of the Cherokee Nation, aided and abetted by Defendants, is a serious issue. These Plaintiffs and other Cherokees, during the course of the history of the Cherokee Nation have had family, historical and present, make great sacrifices to preserve the sovereignty and dignity of their tribal nation. The United States in covenant after covenant and promise after promise guaranteed the internal self-government of the Cherokee Nation and to honor its institutions. To make Hollywood stereotypic descriptions of this controversy is offensive but illustrative of the Defendants’ position in the current controversy.

           Defendants proceed on the flawed assumption that the arrest, detention and police actions of the Defendants were lawful from their inception and were within their lawful authority. Not only did Defendants proceeded in violation of fundamental authority during the pertinent events herein but they committed, under Oklahoma law, the crimes of “Arrest without Authority” pursuant to 21 O.S. § 535 and “Obstruction of Justice pursuant to 21 O.S. § 540.” They knew or should have known they were violating the law of the Cherokee Nation and the orders of its highest Court, state and federal law on each of the occasions which are the subject of this lawsuit. From inception, the Defendants proceeded to repress, suppress and deny the Plaintiffs exercise of federal rights to assemble, speak and exercise internal self-government. The entirety of the illegal acts of the Defendants, once seen in perspective, were a continuing effort to oust the Judicial Branch of the Cherokee Nation, thus disabling its Constitutional government. When Plaintiffs stood to protest these unpatriotic acts by Defendants, Defendants impinged on the very right which would protect the Plaintiffs’ constitutional tribal government, i.e. the freedom of speech and assembly.

           Defendants further ignore that they were charged by the Plaintiffs as a conspiracy where each acted in concert with the other. The acts of one involved in a conspiracy inure to the others. Also Defendant Norman Fisher described a similar meeting on August 12, 1997 in which local law enforcement and the BIA discussed “Ragsdale’s intention to take over the Courthouse.” On the morning August 13, 1997, Assistant District Attorney Darrell Dowty in response to notice by Attorney Charles Shipley that the Marshals were proceeding on a JAT order, stated it “made no difference to him and that he and his law enforcement officers were going to that this never happened again.” See Appendix “B”, Exhibit “J”, Affidavit of Charles Shipley. Adickes v.Kress & Co., 398 US 144 (1970); Dennis v. Sparks, 449 US 24 (1980). Defendants’ efforts to point fingers toward other Defendants is to no avail because each is equally culpable as charged.

           Defendants have the Plaintiffs at a distinct disadvantage at this stage of the proceedings because Plaintiffs responded to the discovery requests of Defendant Norman Fisher which the Defendants now use to support their motions. Discovery was stayed by this Court and Plaintiffs have been prevented from receiving their discovery requests from the federal defendants, the state defendants and the county defendants. Any Motion for Summary Judgement should be denied until Plaintiffs have the opportunity to complete discovery.

II. STATEMENT OF FACTS

           Defendants file their motions in advance of discovery, which therefore limits the “record” available to plaintiffs. The verified complaints, the appendix attached hereto and common sense support the following statements of fact.

A. Plaintiffs Response to Defendants’ Statements of Uncontested Material Facts.

1. Norman Fisher
           1. Plaintiffs admit that Norman Fisher has been the Chief of Police for the city of Tahlequah since 1989.

2. Plaintiffs admit that the Judicial Appeals Tribunal of the Cherokee Nation did enter an Order on January 27, 1998 confirming the Cherokee Nation Courthouse and surrounding grounds to be Indian Country. Before the facts giving rise to this controversy occurred, there had been no call for such a determination, as the seat of the Judicial Branch of the Cherokee Nation was originally the Cherokee Capital and it was not thought that anyone would question the old seat of tribal government being “Indian Country.”

3. Plaintiffs deny that Norman Fisher and the Tahlequah Police Department relied on, or were entitled to rely on, the Bureau of Indian Affairs administrative memorandums.

2. Federal Defendants, Fields and Proctor

           1. It is admitted that on July 2, 1990 the United States and the Cherokee Nation entered into a Compact of Self-Governance, a correct copy being attached to Federal Defendants’ Brief to their Motion to Dismiss as Exhibit 1.

           2. It is admitted that the letter was written and signed by Michael Anderson. The factual findings in said letter are disputed and are not supported by facts known to the Bureau of Indian Affairs. The letter does not constitute any type of order or process.

           3. Plaintiffs dispute that the BIA’s purpose in re-assuming law enforcement authority was to protect citizens and property and “not to take sides”.

B. Plaintiffs’ Statement of Uncontested Material Facts.
1. Since approved by referendum on June 26, 1976, the Cherokee Nation adopted a Constitution, superseding in part its Constitution of 1839, a copy appearing in the record as Appendix A, Exhibit “C” to the Complaint filed in the lead case.

2. Each of the plaintiffs is a citizen of the Cherokee Nation, as provided in Article III of the Constitution and a citizen of the United States. (Verified Complaint)

3. The Constitution of the Cherokee Nation provides, in part:

           Article IV. Distribution of Powers
           The powers the government of the Cherokee Nation shall be divided into three (3) separate departments: Legislative, Executive and Judicial; and except as provided in this Constitution, the Legislative, Executive and Judicial departments of government shall be separate and distinct and neither shall exercise the powers properly belonging to either of the others.

           Article V. Legislative
           Section 1. The legislature shall consist of one legislative body to be called the Council of the Cherokee Nation, ...

           Section 4. ... No business shall be conducted by the Council unless at least two-thirds (2/3) of the members thereof regularly elected and qualified shall be in attendance, which number shall constitute a quorum.” ...

(During all times material to this case, there were 15 members of the Council and 10 members, therefore, constituted a quorum.)

           Section 10. Members of the Council and all Executive Officers shall be bound by oath, provided in Article XIII, to support the Constitution of the Cherokee Nation, the Constitution of the United States of America, do everything within the individual’s power to promote the culture, heritage and traditions of the Cherokee Nation and to perform the duties of their respective offices with fidelity.

           Article VI. Executive
           Section 1. The executive power shall be vested in a Principal Chief, who shall be styled ‘The Principal Chief of the Cherokee Nation.’ ...

           Section 10. The Principal Chief shall cause the laws of the Cherokee Nation to be faithfully executed, and shall conduct in person and in such manner as shall be prescribed by law, all communications and business of the Cherokee Nation. ... Before the extraordinary meetings may be legally sufficient to conduct business, a quorum of the Council must be present.

           Article VII. Judicial
           There is hereby created a Judicial Appeals Tribunal composed of three (3) members all of whom must be admitted to practice law before the highest Court of the State of which they are residents, and all of whom shall be members of the Cherokee Nation, appointed by the Principal Chief and approved by the Council for such terms as the Council may provide. The purpose of the Tribunal shall be to hear and resolve any disagreements arising under any provisions of this Constitution or any enactment of the Council. The Council shall provide for a procedure which shall ensure that any litigant receives due process of law together with prompt and speedy relief, and shall generally follow that portion of the Oklahoma Statues known as the Administrative Procedures Act, Title 75, Oklahoma Statutes, 301 et seq. The decision of the Judicial Appeals Tribunal shall be final insofar as the judicial process of the Cherokee Nation is concerned.

           Article XII. Employee Rights
           No employee, who having served in a position at least one (1) year, shall be removed from the employment of the Cherokee Nation except for cause. The employee shall be afforded a hearing by the Judicial Appeals Tribunal under such rules and procedures as may be prescribed by the Council. These rules and procedures, however, must follow, as nearly as practicable, the provisions of the Oklahoma Administrative Procedures Act, Title 75, Oklahoma Statues 302 et seq.

           Article XVII. Seat of Government
           The Seat of Government of the Cherokee Nation shall be at Tahlequah, Oklahoma.

4. The Compact of Self-Governance Between The Cherokee Nation of Oklahoma And The United States of America, provides, in part: (The full text of this treaty is attached, as a “blue ribbon” authenticated copy, Exhibit 1, to the Federal Defendants’ Motion To Dismiss and/or Summary Judgment. Emphasis has been supplied.

           “Article I - - Authority and Purpose (of Compact of Self-Governance)
           Section 1 - - Authority. This agreement, denoted a Compact of Self-Governance (hereinafter referred to as the ‘Compact’), is entered into by the Secretary of the Department of the Interior (hereinafter referred to as the ‘Secretary’) for and on behalf of the United States of America pursuant to the authority granted by Title III of P.L. 100-472, and by the Principal Chief of the Cherokee Nation of Oklahoma for and on behalf of the Cherokee Nation of Oklahoma by the authority of the Constitution and Bylaws of the Cherokee Nation of Oklahoma (Hereinafter referred to as the ‘Nation’).

           Section 2 - - Purpose. This Compact shall be liberally construed to achieve the following purposes:

           (a) to carry out an unprecedented Self-Governance Demonstration Project, authorized by Title III of P.L. 100-472 which is intended as an experiment in the areas of planning, funding and program operations within the Government-to-Government relationship between Indian tribes and the United States. In fulfilling his responsibilities under this Compact, the Secretary hereby pledges that the Department will conduct all relations with the Nation on a Government-to-Government basis. ...

           (b) to enable the Cherokee Nation of Oklahoma to redesign programs, ... and to reduce the Federal-Indian service bureaucracy; and

           (c) to enable the United State to maintain its unique and continuing relationship with and responsibility to the Cherokee Nation of Oklahoma through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from the Federal domination of programs and services to an effective and meaningful participation by the Indian people in the planning, conduct and administration of those programs and services.

           Section 3 - - Applicable Law and Forums. The duly enacted laws of the Nation shall be applied in the execution of this Compact and the powers and decisions of the Nation’s Court shall be respected, to the extent that federal law, construed in accordance with the applicable canons of construction and Title III of P.L. 100-472, is not inconsistent.

           Article III - - Obligations of the United States
           Section I - - Trust Responsibility

           (a) Nothing in this Compact is intended to, nor should it be interpreted to, terminate, waive, modify, reduce or diminish in any way the trust responsibility of the United States to the Nation or individual Indians.

           Article IV - - General Provisions
           Section 13 - - Tribal Administrative Procedures. Tribal law and tribal forums shall provide administrative due process rights pursuant to the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301, et seq., that persons, or groups of persons may have with respect to services, activities, programs, and functions that are provided by the Nation pursuant to this Compact. (The term of the Compact began on October 1, 1990 and it is still in effect. )

5. Title 20 Cherokee Nation Code Annotated (CNCA) § 40 provides:

           “The Judicial Appeals Tribunal shall exercise general superintendence, direction and control over the Cherokee Nation Courthouse.” See Appendix “A” to Complaint, Exhibit “A”.

6. The Cherokee Nation government is a substantial presence in Tahlequah, Cherokee County, Oklahoma by reason of the size of its physical facilities, employment, budget and activities.

7. Law enforcement officials and officers of the City of Tahlequah, Cherokee County, Adair County, Sequoyah County, District Attorney and the State of Oklahoma have a general familiarity with the fact that their authority is limited in “Indian Country” and that there is a purpose and need, at times, for the cross-deputization agreement with the Cherokee Nation.

8. The Defendants knew, because of their respective positions, that the Cherokee Nation had a Constitution providing for three branches of government, somewhat similar to the government of the United States of America.

9. At all times material to this case, Marshal Pat Ragsdale and the other members of the Cherokee Marshal Service had each been employees of the Cherokee Nation for more than one year.

10. On February 25, 1997, Principal Chief Joe Byrd filed suit in the Nation’s courts against Marshal Pat Ragsdale (CIV 97-02, JAT 97-07) generally alleging that Ragsdale employment should be terminated.

11. Various judicial orders were entered in the Byrd vs. Ragsdale litigation concerning the legal status of the Cherokee Nation Marshal Service including permitting it to use space in the Courthouse pending completion of a n investigation. See Exhibit “1", JAT Orders.

12. On March 22, 1997 Chief Joe Byrd held a press conference wherein he announced that he would not follow orders issued by the Judicial Appeals Tribunal that he deemed to be illegal or unconstitutional. These statements were widely publicized in the Cherokee Nation territory.

13. Neither before or after the early morning hours of June 20, 1997 (4:00a.m.), was there any disturbance of the peace or any person about to threaten the peace, except for the officers and officials who seized the Cherokee Nation Courthouse and ousted the Judicial Branch.

14. At 4:00 a.m. on June 20, 1997 the Defendants had received no threats that there would be any kind of disturbance of the peace as a protest to the Defendants’ seizure of the Courthouse and ouster of the Judicial Branch.

15. The fact that Defendants made elaborate preparations for a show of force in maintaining the seizure of the Courthouse on both June 20, 1997 and August 13, 1997 is evidence of “guilty knowledge” that they were violating the law and that citizens of the Cherokee Nation should and probably would, protest their illegal ouster of the Judicial Branch.

16. The overreaction of District Attorney Diane Barker-Harrold, as demonstrated by her letters of August 21, 1997 to the Governor of Oklahoma and Public Safety Commission are evidence of guilty knowledge. Those letters request the continued show of force including appearance of a SWAT team across from the Cherokee Nation Courthouse during the Cherokee holiday at the end of August, 1997, a bomb squad, bomb dogs, no-fly zone over Tahlequah, aerial patrol by BIA helicopter, uniformed and plains clothes police officers, triage and emergency evacuation sites with all the trappings of a military suppression. See Appendix “B”, Exhibit “B ”Newspaper Articles regarding Cherokee National Holiday.

17. An attorney for the Tahlequah Public Works Authority, an instrumentality of the City of Tahlequah, correctly advised that the Courthouse was under the control of the judicial branch and not the executive, on May 16, 1997. See Appendix B, Exhibit “C” Memorandum of Lloyd Cole.

18. From and after June 20, 1997 and until August 25, 1997 the Judicial Appeals Tribunal was ousted from its constitutional offices and functions as the Judicial Branch of the Cherokee Nation and ousted from its statutory seat and facilities at the Cherokee Nation Courthouse.

19. The ouster of the Judicial Appeals Tribunal was accomplished at the instigation of Principal Chief Joe Byrd and aided and abetted physically by the Defendants.

20. The ouster of the Judicial Appeals Tribunal, in fact and in law, was accomplished contrary to the Constitution and Laws of the Cherokee Nation. It was therefore illegal under Cherokee law.

21. The ouster of the Judicial Appeals Tribunal was also illegal according to federal law, particularly the compact of Self-Governance between the Cherokee Nation of Oklahoma and the United States of America, dated July 2, 1990.

22. The ouster of the Judicial Appeals Tribunal was also illegal according to 21 O.S. §§ 535 and 540.

23. The Compact of Self-Governance is a treaty between the Cherokee Nation and the United States and is therefore a law required to be followed by the United States, the state and its subdivisions.

III. ARGUMENT
A. Background

           The Defendants say they are entitled to dismissal or summary judgment under the qualified immunity doctrine as enunciated by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982). Because Elder v. Holloway, 510 U.S. 510 (1994) teaches that whether a federal right was clearly established at a particular time presents a question of law, some of the foregoing Undisputed Facts are mixed statements of law rather than facts.

           It is appropriate, to analyze whether the Defendants reasonably could be expected to understand the unlawfulness of their acts (the Defendants are all trained law enforcement officials or officers and the District Attorney is a lawyer) in Tahlequah, Oklahoma at the site of and on the grounds of the Cherokee Nation Courthouse, a place which was originally constructed as capital of the Cherokee Nation. Prior to June 20, 1997 each of the defendants would be aware or had a duty to be aware of, the following:

           1. The Cherokee Nation is a nation controlled by a constitution and laws.

           2. The Cherokee Nation Constitution was similar to the Oklahoma and United States Constitutions in that it provided for three separate branches of government, the legislative, the executive and the judicial.

           3. The Cherokee Nation Courthouse was the situs, seat and place housing the judicial branch and its officers and functionaries.

           4. It was wrong and illegal to oust the Judicial Branch from its Courthouse, its effects and the Cherokee peoples’ affairs entrusted to the Judiciary.

           5. The ouster was an attempted suspension of the Cherokee Constitution not authorized by any law.

Prior to noon on August 13, 1997 each of the defendants knew, or had a duty to be aware of, the following:

           1. That an order had been issued by the Judicial Appeals Tribunal requiring Pat Ragsdale and the Cherokee Nation Marshal Service to restore the Judicial Branch of the Cherokee Nation to the Cherokee Nation Courthouse.

           2. That order was final and binding on all parties and concerned a subject matter over which the Judicial Appeals Tribunal had final decision-making power.

           3. The fact that the Judicial Appeals Tribunal had the power to issue such an order would correspond with the power residing in the United States Supreme Court and the Oklahoma Supreme Court. Therefore, such power is not unusual and is to be expected.

           To evaluate understanding or the understanding the Defendants should have, authoritative definitions are helpful. For that purpose, Black’s Law Dictionary, Fourth Edition, is used for selected definitions and appears in Appendix “B”, Exhibit “D”. Plaintiffs append these definitions to demonstrate a “black letter” premise which the defendant officers and officials would more likely know, rather than case law which is generally more complex.

B. Elements of Qualified Immunity
           When a public official asserts qualified immunity a two part analysis is required. The plaintiff must plead a violation of a right that is clearly established and state it with particularity. The second part is whether a reasonable official could have believed under the facts alleged that his conduct was lawful. Act Up!/Portland v Bagley, 988 F.2d 868 (9th Cir. 1993). The Ninth Circuit, in Act Up!/Portland, held: "The determination of whether a reasonable officer could have believed his conduct was lawful given the totality of the circumstances is a determination of law than can be decided on summary judgement if the material facts are undisputed. Id. If, however, there is a material dispute as to the facts and circumstances that an officer knew or should have known, or as to the facts regarding what the officer or the plaintiff actually did, the case must proceed to trial." In the instant case, if a question of fact exists as to defendants’ knowledge of the pertinent law, Plaintiffs are entitled to discover the "totality of the circumstances" as to whether Defendants could have believed their conduct was lawful.

           The Fourth Circuit outlined the requirements for qualified immunity in Cromer v. Brown. 88 F.3d 1315 (4th Cir, 1996) by holding, “The linchpin of qualified immunity is objective reasonableness... Important to this reasonableness inquiry is whether the rights alleged to have been violated were clearly established at the time of the challenged actions. If the law supporting the allegedly violated rights was not clearly established, then immunity must lie. Where the law is clearly established, and where no reasonable officer could believe he was acting in accordance with it, qualified immunity will not attach. The right allegedly violated must be articulated in a "particularized" and "relevant" way. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). A plaintiff may not merely assert the violation of some "overarching entitlement" to a named right. Pinder, 54 F.3d at 1173. Instead, he must be sufficiently specific to allow us to decide whether "a reasonable official would understand that what he [did] violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. But "[it is important not to be over specific--there need not be a prior case directly on all fours with the facts presented to the official." Pinder, 54 F.3d at 1173. Still, we must be able to conclude that, in light of pre-existing law, the unlawfulness of the challenged action was apparent to the official. Anderson, 483 U.S. at 640, 107 S.Ct. at 3039; Pinder, 54 F.3d at 1173.”

The court must evaluate the evidence in the light most favorable to the non-moving party. Howard v. Dickerson, 34 F.3d 978 (10th Cir 1994). The Tenth Circuit has used a “liberal construction test” against all the defendants including private persons where conspiracy is alleged. The Tenth Circuit reasoned, “In many cases of conspiracy essential information can only be produced through discovery, and the parties should not be thrown out of court before being given an opportunity through that process to ascertain whether the linkage the thing may exist actually does.” Lessmand v. McCormick, 591 F.2d 605, 611 (10th Cir, 1979).

           The trial court may not during its course of determining qualified immunity examine whether the defendants intended to violate the plaintiffs’ constitutional rights pursuant to Harlow v. Fitzgerald, 457 U.S. 800 (1982). Wade v Hegner, 804 F.2d 67 (8th Cir. 1986). The plaintiff is not required to provide any evidence of a deliberate choice by the municipality to adopt an unconstitutional custom or policy. Berry v City of Detroit, 25 F.3d 132 (6th Cir. 1994). A single violation by a municipality of a constitutional or statutory right is sufficient if there the evidence demonstrates that the moving force was a municipal policy or custom. Vineyard v. County of Murray, Ga. 990 F.2d 1207 (11th Cir. 1993). Deliberate indifference to the rights of the Plaintiffs is a jury question if the plaintiff advances sufficient evidence to create a genuine issue of fact as the existence of an unlawful custom or policy by the government. Doe v. Clairborne County of Tennessee, 103 F.3d 495 (6th Cir. 1996).

C. Defendants’ acts were statutorily illegal
           The Defendants generally, excepting the federal Defendants, base their claim to qualified immunity on the notion that the Cherokee Nation Courthouse is not Indian Country and, therefore, comes within the law enforcement jurisdiction of the city, county and state. If that were the case, these jurisdictions still are required to recognize that the Courthouse is the place of administration of Cherokee law. There was, in fact, ongoing litigation pending before various courts of the Cherokee Nation setting at the Courthouse.

           Only a small amount of the space in the Courthouse was allocated to the Cherokee Marshals Service which was confined to the first floor of the two story building. The Marshal Service, in addition to its policing function, had the responsibility for service and enforcement of the orders of the Cherokee Courts. The Cherokee Courts had issued a series orders which the Principal Chief decided he would not obey or follow. As such, the constitutional authority of the judicial branch was much more bothersome to the executive than the Marshal Service. This is demonstrated by the fact that Chief Byrd simply hired a new "security force." As to the defense of qualified immunity, whether or not the Cherokee Nation Courthouse was "Indian Country" is of limited importance, except as to Plaintiff Smith’s claim of extrajudicial arrest in the member case.

           What is important is the ouster of the Judicial Branch of the Cherokee Nation. Oklahoma Law provides, 21 O.S. § 535 :

"Every public officer or person pretending to be a public officer, who under the pretense or color of any process or other legal authority, arrests any person, or detains him against his will, or seizes or levies upon any property, or dispossesses anyone of any lands or tenements without due and legal process, is guilty of a misdemeanor." and; 21 O.S. § 540:

"Every person who willfully delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office, is guilty of a misdemeanor."

           On June 20, 1997, the only "process or other legal authority" which Defendants allege purporting to meet the requirements of 21 O.S. § 535, was the letter of April 18, 1997 from Michael Anderson, Assistant to Assistant Secretary - Indian Affairs. (See Exhibit 2 to Federal Defendants' Brief to dismiss.) This letter would only serve as purported authorization to supplant the Marshal Service. It contains no authorization (as there would be none) which would purport to effect the judiciary.

           Plaintiffs believe that, without question, the defendant “public officer(s), without due and legal process, seized property of and dispossessed the judicial branch from its rightful place. Additionally, those acts delayed and obstructed the judges from the discharge of the duties of their offices. Defendants, on both June 20 and August 13, 1997 were engaged in the commission of a misdemeanor under Oklahoma criminal statutes.

           Norman Fisher, in his affidavit attached to his brief, says he attended a meeting on June 19, 1997 of officials from the BIA, District Attorney's office, state Highway Patrol and the Sheriff's office to plan the conduct which Plaintiffs show was obstruction of justice and in violation of criminal laws. His contention is that his officers were present to "assist in calming the disturbance of June 20, 1997." He also says he was acting "under color of law." A central and contested issue is this: Where the defendants, on June 20, 1997 and August 13, 1997 rightfully present with the design and purpose of preserving the peace? Or, where the defendants present with the design and purpose of ousting, or aiding and abetting the ouster of the Judicial Branch of the Cherokee Nation through conduct prohibited by law? The answer lies in the behavior of the Defendants, not their self-serving proclamations after the fact.

           The fact is, that but for the acts of the Defendants, there was no reason to expect any disturbance. The facts do not support the "preservation of the peace" contention of the Defendants. The acts of the Defendants were a continuing demonstration of force which began at 4:00 a.m., in the dark of night, on June 20, 1997. That was the hour when the BIA, and "security officers" went to the Cherokee Nation Courthouse and seized and sealed it for the Cherokee executive branch and BIA purposes. The other Defendants had been solicited and readily aided and abetted the ouster of, not only the marshals, but the Judicial Branch including the Judicial Appeals Tribunal, District Court and Court Clerks. No voluntary effort was made by the executive branch or the BIA to restore the Constitutional tri-parte government. Only after intervention at the end of August, 1997 by Bruce Babbit, the Secretary of Interior was the Courthouse opened. This restoration did not occur until after the Courthouse had been boarded up, and chains placed on the door, all symbolic of conquest for all to see.

           However, the conquest did not overcome the patriotic will of the citizens of the Cherokee Nation. Following August 25, 1997 the Judicial Branch peacefully returned to its lawful and rightful seat. The BIA, to this date refuses to service and enforce the orders of the Cherokee Nation Courts although it claims to have taken over all tribal law enforcement. Now, the actors in the ouster of the Judicial Branch, the Defendants, say, we were just there to keep the peace. They say a state of emergency existed. Plaintiffs say that any emergency that existed was caused by the Defendants, particularly by their ouster of the Judicial Branch of the government. Cherokee citizens were entitled to demonstrate and demand the restoration of the Cherokee Nation Courthouse to the Judicial Branch and to themselves.

           Cherokee citizens were not compelled to accede to the ouster and the obstruction of justice by the Defendants. The Defendants may not claim the defense of qualified immunity while engaged in activities which violate the laws of the Cherokee Nation, the criminal laws of the State of Oklahoma, the law created by the Self-Governance Compact, and federal statutes.

           But for the public assembly and the public speaking-out by citizens of the Cherokee Nation, it is likely that the de facto government by the executive branch, which operated for a few months during the summer of 1997, would still be in place. The public outcry caused officials, like the Defendants, to examine with greater clarity what they were doing. In other words, use of force to prop up the de facto government became embarrassing in light of publicity (freedom of assembly and speech) and public opinion, both Cherokee and non-Cherokee. When that happened, the props were pulled out form under the de facto government and the de jure government was quietly returned to power.

           The importance of the right of free speech and assembly to preservation of the constitution (tribal, state and federal) cannot have a better example. Peaceful, but publicly forceful, resistance to illegal acts by the defendants ultimately caused the restoration of the rightful government of the Cherokee Nation. Certainly, it is not the place or contention of these Plaintiffs to take the credit for this restoration, but they did, through their acts, contribute to the restoration. The Defendants, through the acts complained of, violated the constitutional rights of the Plaintiffs and are not entitled to qualified immunity defenses.

D. Pertinent Propositions of Law
           The essential question in this case is what law is applicable and pertinent in determining whether qualified immunity is available as defense. On June 20, 1997 when Defendants aided and abetted Joe Byrd’s security forces in a military style siege of the Cherokee Nation Courthouse and again on August 13, 1997 when Defendants aided and abetted Byrd’s forces in resisting opening the Courthouse as ordered by the Judicial Appeals Tribunal, the pertinent law was well-settled regarding the rights, duties and authority of the various parties involved in the Cherokee Nation Constitutional Crisis. Although there are a number of parties in this lawsuit, the essential issue is quite simple, “Are the Defendants entitled to qualified immunity where they chose to follow executive requests in contravention of judicial orders, black letter law, and the statutes of the State of Oklahoma? The answer is no.

           The pertinent inquiry involves whether certain propositions of law were well established at the time of the first event, June 20, 1997. These propositions are:

1) Plaintiffs had a First Amendment right to assemble and enter the courthouse,

2) Defendants were obligated to follow or give full faith and credit to the law and orders of the Cherokee Nation and Judicial Appeals Tribunal,

3) The Judicial Appeals Tribunal was the final arbiter of Cherokee Nation law,

4) The Judicial Appeals Tribunal had care and supervision over the Cherokee Nation Courthouse,

5) The Cherokee Nation Marshals headed by Pat Ragsdale was judicially determined by the JAT to be the law enforcement agency of the Cherokee Nation,

6) The Cherokee Nation Marshals were ordered by the court to protect evidence on June 20, 1997 and were ordered to peaceably open the Courthouse on August 13, 1997,

7) The Defendants had notice of the law and orders of the Cherokee Nation and Judicial Appeals Tribunal,

8) Pointing a firearm at the head of juvenile under arrest posing no threat to law enforcement was a constitutional violation.

9) Plaintiffs could lawfully resist the unlawful actions of the police. The resounding answer is that each of the above propositions of law was well established and the Defendants knew or reasonably should have known that they were violating these propositions of law as of June 20, 1997. As such, Defendants are not entitled to qualified immunity.

           The Cherokee Nation is a domestic dependent nation and maintains a government to government relationship with the federal and state governments. It has a three part government with a supreme court which “says what the law is.” In the instant case, an intra-tribal constitutional crisis began on March 22, 1997 when Joe Byrd, Principal Chief, stated in a press conference that he would decide which orders of the Cherokee Nation’s Supreme Court were lawful and he did not have to follow orders he believed unlawful. The media coverage of the continuing events in this crisis, intense and exhaustive, alerted all of the Defendants as to the issues and posture of a constitutionally defiant tribal executive and the response by the Judicial Appeals Tribunal (JAT). On the days in question, the Defendants knew or reasonably should have known what the pertinent law was and elected to disobey tribal law, decisions, rulings and orders. Defendants’ arrogance in ignoring tribal law catches them each in a web of federal and state law which, consonant with history, federal-tribal relations and constitutional decisions, affirms that the laws, orders and rulings of the Cherokee Nation were entitled to full faith and credit. Each of the Defendants elected to kowtow to the administrative whims of the elected Cherokee executive who recruited Defendants on June 20, 1997 to illegally seize custody of the Cherokee Nation Courthouse from its legal caretakers and occupants, the Cherokee Nation Marshals, the Judicial Appeals Tribunal and its court clerks, and to physically oust the lawful occupants. They illegally denied Cherokee citizens access to their most cherished building and symbol of the trials and tribulations of tribal survival, the Cherokee Nation Courthouse.

           Again on August 13, 1997, Defendants, after consultation and in a conspiracy, having been served with a copy of the order of the Cherokee Nation Judicial Appeals Tribunal to reopen the Courthouse entrusted to their care and custody pursuant to Cherokee Nation law, physically restrained the Court’s bailiffs, lawful Cherokee Nation Marshals and Cherokee citizens from entering the Courthouse, and with the ultimate arrogance, arrested the Director of the Marshal Service and its Prosecutor during the execution of the tribal court order.

           The facts are undisputed in this case that Defendants, each of them and in concert each with the other, choose for whatever personal or political reason, to rebuff the orders of the highest court of the Cherokee Nation. Defendants figuratively and illegally bound the hands and gagged the mouths of the lawful occupants and visitors to the Cherokee Nation Courthouse while aiding and abetting the criminals seizing the Courthouse.

           Defendants are bound under their own laws, tribal, state and federal, not only to seek to keep the peace but to follow and enforce the law. On each occasion, Defendants aiding and abetting the law breakers, exercised their power without authority of law and violated their duties under federal, state and tribal law.

E. Propositions of Law

Proposition One: The law was well-established that Plaintiffs had a First Amendment Right to assemble, enter the Cherokee Nation Courthouse and protest the actions of Defendant.

           On June 20, 1997, PlaintiffsThe Plaintiffs on August 13, 1997 include Pat Ragsdale, the Cherokee Nation Marshal having served as Acting Assistant Secretary of Interior for Indian Affairs; Lisa Tiger, Age 33.HIV-positive nationally-acclaimed youth motivational speaker and daughter of renowned artist Jerome Tiger; Danny P. Teehee, Rancher (disabled) and elder in the Cherokee Elder's Council; Paul Thomas, Oklahoma State Probation Officer- Mayes County and former Los Angeles Police Officer; Sharon Wright, Deputy Cherokee Nation Marshal and former accountant; Brian Blair, 31 year-old Cherokee Nation Deputy Marshal served six years as a municipal, state and tribal law enforcement officer; Franky Dreadfulwater, 37-year old DARE officer, since 1992 with Cherokee Nation law enforcement holds a Bachelor of Arts from Northeastern State University and Indian Police Academy certification; Felicia Olaya, NSU Administrative Assistant at the Center for Tribal Studies, Northeastern State University; Richard C. Mankiller, age 47, 21-year career Xerox employee. were denied access to the grounds and building of the Cherokee Nation Courthouse by Defendants setting up a perimeter barrier to the Cherokee Nation Courthouse and prohibiting any person not authorized by the District Attorney, County Sheriff or Chief of Police, denied employees, staff and citizens free access and entrance to the Courthouse. Defendants physically evicted Plaintiffs with their personal property and arrested or threatened to arrest Plaintiffs if they entered the grounds or Courthouse building without State or Federal authorization. On August 13, 1997, in violation of an order of the JAT, the Defendants physically restrained the Plaintiffs from entering the Courthouse and arrested the Director of the Marshal Service and the Prosecutor.

           1. Burden of establishing First Amendment right
           On June 20, 1997 the Plaintiffs in the lead case involved were: Linda Turnbull-Lewis: 51-year old grandmother of four, a partner in a marketing consulting firm which specializes in tribal gaming operations, giving seminars nationwide; Barbara Starr-Scott, business woman and Cherokee Nation Council member (dismissed as a Plaintiff); Jessup J. Bryant, Tahlequah businessman and owner of Bryant's Daylight Donuts; Kathy Carter-White, 41-year old practicing attorney with degrees from OU and TU, mother and grandmother, a member of the Indian Law Section of the Oklahoma Bar Association; Barbara Martens, Principal at Stilwell High School; Diane Blalock, holds a law degree from OU, her background is in Indian Law, Cherokee Nation Prosecutor and former Assistant Attorney General; Gina Waits, Court Clerk for the Cherokee Nation courts. The Plaintiff in the member case, Chadwick Smith, is a former attorney for the Cherokee Nation and Cherokee legal historian who taught at Dartmouth College. The Plaintiffs on August 13, 1997 include Pat Ragsdale, the Cherokee Nation Marshal having served as Acting Assistant Secretary of Interior for Indian Affairs; Lisa Tiger, Age 33.HIV-positive nationally-acclaimed youth motivational speaker and daughter of renowned artist Jerome Tiger; Danny P. Teehee, Rancher (disabled) and elder in the Cherokee Elder's Council; Paul Thomas, Oklahoma State Probation Officer- Mayes County and former Los Angeles Police Officer; Sharon Wright, Deputy Cherokee Nation Marshal and former accountant; Brian Blair, 31 year-old Cherokee Nation Deputy Marshal served six years as a municipal, state and tribal law enforcement officer; Franky Dreadfulwater, 37-year old DARE officer, since 1992 with Cherokee Nation law enforcement holds a Bachelor of Arts from Northeastern State University and Indian Police Academy certification; Felicia Olaya, NSU Administrative Assistant at the Center for Tribal Studies, Northeastern State University; Richard C. Mankiller, age 47, 21-year career Xerox employee.

On each pertinent occasion, the Plaintiffs’ right to assemble and speak was denied without lawful authority. The Defendants bear the burden of showing that the Plaintiffs’ First Amendment rights were not clearly established. Burnham v Iannit, 119 F.3d 668 (8th Cir. 1997). In determining qualified immunity, speech of a critical nature against the government, like complaints of fraud and corrupt practices and mis-allocation of public funds are entitled to “greater weight” under the Pickering analysis. Piesco v. City of New York, 933 F.2d 1149 (2nd Cir. 1991). In the instant case, the presence of the Plaintiffs at the Courthouse on June 20, 1997 was in response to an unlawful siege and seizure of the Cherokee Nation Courthouse and on August 13, 1997 was in response to the illegal holding of the Courthouse. Both were events of protest of governmental unlawful activities which are entitled greater deference.

           2. Public places are entitled to freedom of assembly
           Public places such as sidewalks, streets and parks, historically associated with the free exercise of expressive activity are considered to be “public forums” where the government’s ability to permissibly restrict expressive conduct is very limited. The fact that speech arouses some people to anger is simply not enough to amount to fighting words in the constitutional sense. Cannon v. City and County of Denver, 998 F.2d 867 (10th Cir. 1993).

           3. Protests are entitled First Amendment protection
           The United States Supreme Court, in Perry Ed. Assn v. Perry Local Educators’ Assn, 460 U.S. 37 (1983), summarized the law regarding freedom of assembly and expression by holding: “In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which “have immemorially been held in trust for the use of the public and, time of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v CIO, 307 U.S. 496, 515 (1939). ..A second category consists of public property which the State has opened for use by the public as place for expressive activity.”

The United States Supreme Court, in Perry, stated,

“Activities such as demonstrations, protest marches, and picketing are clearly protected by the First Amendment. Edwards v. South Carolina, 372 U.S. 229 (1963); Thornhill v. Alabama, 310 U.S. 88 (1940); NAACP Western Region v, City of Richmond, 743 F.2d 1346 (9th Cir. 1984). It has been clearly established since time immemorial that city streets and sidewalks are public fora. E.g. United States v. Grace, 461 U.S. 171, 177 (1983); Hague v. C.I.O., 307 U.S. 496, 515 U.S. 171, 177 (1983) (opinion of Roverts, J.); accord Gaudiya Vaishnava Society v. City and County of San Francisco, 952 F.2d 1059, 1065 (9th Cir.1990). Restrictions on First Amendment activities in public fora are “subject to a particular high degree of scrutiny.” NAACP Western, 743 F.2d at 1355. The law is also clear that the government may not prohibit angry or inflammatory speech in a public forum unless it is (1) “directed to inciting or producing imminent lawless action” and (2) “likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curium); see also Hess v. Indiana, 414 U.S. 105, 108 (1973) (per curium). Speech that stirs passions, resentment or anger is fully protected by the First Amendment. Terminello v. Chicago, 337 U.S. 1, 4 (1949) (“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”)

The freedom of assembly and speech were exercised by Plaintiffs on these occasions, including their right to enter the Cherokee Nation Courthouse, are a form of political expression and speech.

           4. Freedom of speech on private property
           The Cherokee Nation Courthouse is property owned by the Cherokee Nation. The law is equally clear that people may express their First Amendment rights on private property. The law was clearly established in 1988 that local officials could not go onto private property without permission and seize property which offended their associates. Nelson v Streeter 16 F.3d 145 (7th Cir. 1994). In Nelson, the Seventh Circuit denied qualified immunity where local government officials went onto private property without invitation (the aldermen had not been invited to the exhibition of student work), seized a painting that they did not like because it vilified a public official with whom they had been associated, and wrapped it in brown paper and removed it so that no one could see it. A parallel exist in the instant case. Defendants, who were not invited on private property by the statutory custodians of the Courthouse, the JAT, seized the Cherokee citizens and their property who objected to the unlawful acts of the police and Byrd administration. The Seventh Circuit in Nelson, further stated, “To ask the question is pretty much to answer it. As Chief Justice Warren said in another case involving an effort to suppress public criticism of a mayor of Chicago, "This is a simple case." Gregory v. City of Chicago, supra, 394 U.S. at 111, 89 S.Ct. at 946... The City does not own the Art Institute, and its officials have no more right to enter it uninvited and take the art off its walls than they would have to enter a private home and take "offensive" art off its walls. Cf. Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam).” The Defendants herein, as the Defendants in Nelson, had no authority to regulate the activities of Plaintiffs on the property of the Cherokee Nation.

           5. Freedom of Speech includes angry speech
           In Collins v. Jordon, 102 F.3d 406 (9th Cir. 1996), the Ninth Circuit held the fact that the court order stated officers were to disperse and arrest those they had “reason to believe were endangering or likely to endanger person or property” did not excuse officers from understanding this could only be done when these person constituted “a clear and present danger” to life or property. The only danger created was by the Defendants assaulting the Plaintiffs.

           The law regarding First Amendment rights to assemble for political expression on private or public policy was not only well-established in 1997 but it is the cornerstone of our constitution since its inception.

Proposition Two: The Defendants were obligated to follow or give full faith and credit to the law and orders of the Cherokee Nation and Judicial Appeals Tribunal.

           The decisions of the Judicial Appeals Tribunal are entitled to full faith and credit by the federal and state governments.

           1. Federal full faith and credit
           The United States has recognized the Cherokee Nation courts since 1855 and acknowledged that the proceedings and judgements of its courts are on the same level and afforded the same full faith and credit as federal territorial courts. See Mackey v. Coxe 18 How. 100 (1855) and Medlin v. Ice, 56 F. 12 (8th Cir. 1893). The Eighth Circuit, in Medlin, held, "The proceedings and judgements of the courts of the Cherokee Nation in cases within their jurisdiction are on the same footing with proceedings and judgements of the courts of the territories of the Union and are entitled to the same faith and credit." The comity and full faith and credit afforded the Cherokee Nation courts as recognized by the United States Supreme Court and Eight Circuit is based on the fundamental issue of sovereignty. "Because the Tribe retains any inherent attributes of sovereignty that have not been divested by the Federal Government, the proper inference from silence.. .is that the sovereign power remains intact.'" Merrion v. Jicarilla Apache Tribe, 455 U.S. 148, n. 14 (1982).

           In the case of Raymond v. Raymond, 83 F.d 721, (8th, ), the court declared:

           The Cherokee Nation...is a distinct political society, capable of managing its own affairs and governing itself. It may enact is own laws, though they may not be in conflict with the constitution of the United States. It may maintain it own judicial tribunals, and their judgments and decrees upon the rights of the persons and property of members of the Cherokee Nation as against each other are entitled to all the faith and credit accorded to the judgment and decrees of territorial court. (At page 722).

Also see Nofire v, United States, 164 U.S. 657 (1897).

           As Federal Defendants correctly point out the Cherokee Nation and the federal government entered into the “Self-Governance Compact.” This government to government agreement, negotiated and administered by the BIA, provided in Article I, Section 3 that “the powers and decisions of the Nation’s Court shall be respected, to the extent that federal law, construed in accordance with the applicable canons of construction and Title III of P.L. 100-472, is not inconsistent.” The federal government statutorily reaffirmed full faith and credit or comity to the powers and decisions of the JAT.

           For one hundred forty seven years since Mackey, the United States Supreme Court and since 1990, the federal Congress has recognized its obligation to afford full faith and credit to the proceedings of the Cherokee Nation courts and nothing about the instant case falls within an exception to that principle.

           2. State full and faith
           The State of Oklahoma is also obligated to extend full faith and credit under state authority. The orders of the Judicial Appeals Tribunal are entitled to full faith and credit by the State of Oklahoma and its political subdivisions. The Oklahoma Legislature enacted provisions to extend full faith and credit to tribal court orders and judgements. Oklahoma statute Title 12 § 728 affirms the power of the Oklahoma Supreme Court to extend full faith and credit to the records and judicial proceedings of any court of any federally recognized Indian nation. The Cherokee Nation is one of the Indian nations that the Oklahoma Supreme Court extends full faith and credit. See Appendix "A", Exhibit "H", "Judicial Appeals Tribunal Administrative Order 95-01" filed with the Oklahoma Supreme Court attached to the Complaint filed herein.

           Therefore, the laws of the Cherokee Nation and orders of its highest court were entitled to full faith and credit at the time of the subject events. For the purpose of qualified immunity, pertinent laws of the Cherokee Nation would include 20 CNCA § 40 which provides that the Cherokee Nation Courthouse is under the control and supervision of the JAT, the Constitution of the Cherokee Nation provides that the JAT is the final arbiter of the law, and that the JAT is the final arbiter as to employment disputes. The orders of the JAT entitled to full faith and credit includes its decisions that Pat Ragsdale and his staff were the lawful Marshals of the Cherokee Nation and bailiffs of its Court, that no person interfere with the Marshal’s custody of evidence gathered against the Byrd administration, and that the Courthouse be opened.

Proposition Three: The authority of the Judicial Appeals Tribunal as the final arbiter of the law within the Cherokee Nation was well established.

1. Status of Cherokee Nation
           A priori, the Cherokee Nation has inherent jurisdiction and sovereignty over its domain. Treaties with the United States were not grants to the Cherokee Nation of rights, jurisdiction or sovereignty but, on the contrary, are grants from the Cherokee Nation to the United States of those rights. As the U.S. Supreme Court explained in 1905, a treaty is not a grant of rights to Indians but a taking of rights from them. If a treaty is silent on the subject of territorial rights, then these rights are not limited by the treaty and still exist in full force. The fundamental principle of federal Indian law is that Indian tribes and nations retain all powers of government unless explicitly ceded or taken by federal legislation. Abrogation of rights secured by treaty will not be deemed accomplished absent a clear expression of Congressional purpose. United States v. Winnebago Tribe, 542 F.2d 1002, (8th Cir.1976). The Cherokee Nation possesses, as other Indian tribes do, "those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of [its] dependent status." See United States v. Wheeler, 435 U.S. 313, at 322-323 (1978).

           In Wheeler v. Swimmer, the Tenth Circuit specifically affirmed the Cherokee Nation's status and right of self-government. The Court held: None of the provisions relied upon however, suggest that the Cherokee Nation intended to surrender any of the inherent rights of self governance reserved to all Indian tribes. Nor do they suggest that the federal government intended to withdraw or any way abrogate that right. Further, a holding in the companion case [Wheeler 1] precludes any claim that the Cherokee Nation is to be treated as enjoying any fewer rights to internal self government than other tribes.

           Congress has never divested the Cherokee Nation of its jurisdiction by treaty or statute over its internal affair nor did Oklahoma statehood. The sovereign power and jurisdiction of the Cherokee Nation over its internal affairs remains unscathed.

           The three branches of the Cherokee Nation government are modeled after the United States in which each branch enjoys a separation of power and each branch provides a check and balance on the other. The Cherokee Nation Constitution of 1975, Article VII, provides for the Judicial Appeals Tribunal to be the highest court of the Cherokee Nation and to decide questions of constitutional and statutory interpretation. The Judicial Appeals Tribunal is the supreme court of the Cherokee Nation and "says what the law is". See Marbury v Madison, 2 L.Ed. 60 (1803). The decisions and orders of the Judicial Appeals Tribunal are binding on the executive branch. See U.S. v Nixon, 418 U.S. 683 (1974). The Judicial Appeals Tribunal determines what the power of each branch is if there is a controversy as to the powers of each branch. See Powell v McCormack, 395 U.S. 486 (1969).

           The Treaty of July 19, 1866, 14 Stat. 799, between the Cherokee Nation and the United States Government in Article XIII provides: That the judicial tribunals of the nation shall be allowed to retain exclusive jurisdiction in all civil and criminal cases arising within their country in which members of the nation, by nativity or adoption, shall be the only parties, or where the cause of action shall arise in the Cherokee nation, except as otherwise provided in this treaty.

           In the Treaty of New Echota, December 29, 1835, 7 Stat.478, between the Cherokee Nation and the United States, Article 5 provides: The United States hereby covenant and agree that the lands ceded to the Cherokee nation in the foregoing article shall, in no future time without their consent, be included within the territorial limits or jurisdiction of any State or Territory. But they shall secure to the Cherokee nation the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people or such persons as have connected themselves with them... The United States made a covenant to secure the Cherokee Nation with the right of self-government and civil jurisdiction to determine disputes between themselves and those who associate themselves with the Cherokee Nation.

           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 which provided that:

           The Congress finds and declares that-
           (2) the United States has a trust responsibility to each tribal government that includes the protection of the sovereignty of each tribal government;

           (3) Congress, through statutes, treaties and the exercise administrative authorities, has recognized the self-determination, self-reliance, and inherent sovereignty of Indian tribes;

2. Authority of Judicial Appeals Tribunal
           It is well-established that tribal courts have exclusive jurisdiction to determine intra-tribal matters including interpretation of their constitutions and statutes. The interpretation of tribal laws are within the sole province of the tribal court. See Santa Clara Pueblo v Martinez, 436 U.S. 49, 56 L.Ed. 2d 106, 98 S.Ct. 1670 (1978). The Eight Circuit held, in Runs After. United States, 766 F.2d 347, 352 (9th Cir.1985), that “the district court correctly held that resolution of such disputes involving questions of interpretation of the tribal constitution and tribal law is not within the jurisdiction of the district court.” Also see Smith v. Babbit, 875 F.Supp. 1353 (D.Minn, 1995); Hinslaw v. Hanler, 42 F.3d 1178 (9th Cir. 1994); Sanders v. Robinson, 864 F.2d 630, 633 (9th Cir. 1988), cert. denied 490 U.S. 110, 109 S.Ct. 3165, 104 L.Ed.2d 1028 (1989); Smith v. Confederated Tribes of Warm Springs, 783 F.2d 1409 (9th Cir. 1986); Marriage of Limpy, 195 Mont. 314 P.2d 266 (1981).

           The Constitution of the Cherokee Nation, Article VII clearly sets forth that the Judicial Appeals Tribunal is the highest court of the Cherokee Nation where it provides, “The decision of the Judicial Appeals Tribunal shall be final insofar as the judicial process of the Cherokee Nation is concerned.”

           Without question, Defendants were obligated to follow the law of the Cherokee Nation and orders of the JAT regarding intra-tribal concerns.

Proposition Four: By Cherokee Nation law, the Judicial Appeals Tribunal had care and supervision over the Cherokee Nation Courthouse.

           Unequivocally, Cherokee Nation statute, places the care, custody and supervision of the Cherokee Nation Courthouse with the Judicial Appeals Tribunal. Pursuant to Cherokee Nation statute, the Courthouse is under the control and direction of the Judicial Appeals Tribunal. Title 20 CNCA § 40 provides that, "The Judicial Appeals Tribunal shall exercise general superintendence, direction and control over the Cherokee Nation Courthouse." The Judicial Appeals Tribunal is the caretaker of the Courthouse. See Appendix "A", Exhibit "A", Cherokee Nation Statute, 20 CNCA § 40 to the Complaint filed herein. The JAT had exercised complete physical superintendence over the Courthouse including granting use of the grounds for public events, supervising physical up-keep, maintenance of utilities, establishment of operating hours of courthouse. See Appendix “B”, Exhibit “I”, Affidavit of Gina Waits.

           Defendants were on notice that by Cherokee Nation statute the Courthouse was under the exclusive supervision of the JAT as evidenced by the legal opinion by Lloyd Cole, Attorney for the Tahlequah Public Works Administration. On May 16, 1997, he issued a Memorandum in response to a request by the Byrd administration to turn off the utilities to the Courthouse in an effort to force the JAT and Marshals from the building. Lloyd Cole unequivocally opined that the control of the Cherokee Nation Courthouse lay exclusively with the JAT. In that very telling he cited Cherokee Nation law, 20 CNCA § 40, found that the JAT controlled the physical premises of the Courthouse, and advised the Public Works Administration not to sever any electric service at the Courthouse as requested by the Byrd administration “without the express consent and approval of the Judicial Appeals Tribunal.” See Appendix “B”, Exhibit “C ” Memorandum of May 16, 1997 to Stanley Day. His opinion was quoted in the Tahlequah Times Journal newspaper on May 17, 1997.

           The JAT acknowledged that Cherokee citizens had an absolute right to enter the courthouse on June 20, 1997 and a number of the Plaintiffs were actually ordered to enter the Courthouse on August 13, 1997. The JAT explicitly ordered no one to interfere with the Marshals as of June 20,1997 in their conduct of an investigation of financial mismanagement by Joe Byrd. However, Defendants did so at the Courthouse by physically ousting them, seizing their computers and attempting to take boxes of evidence seized. Simply, the caretaker of the property gave its proprietary permission to the Plaintiffs to enter the Courthouse on each occasion and forbid Defendants from interfering with the Marshals at the Courthouse. This proposition is discussed in more depth later.

           Therefore, it was well-established and known to Defendants that on the dates in question, the JAT had control and superintendence over the Courthouse as a caretaker for the Cherokee Nation and had permitted the Plaintiffs to enter the Courthouse and, in fact, ordered the Courthouse opened on August 13, 1997. It was equally clear that any directives by the executive branch to the contrary was in violation of tribal law and tribal court orders.

Proposition Five: The Judicial Appeals Tribunal has exclusive jurisdiction and authority to determine the employment status of tribal staff and Cherokee Nation Marshals headed by Pat Ragsdale who were adjudicated to be the legitimate law enforcement agency of the Cherokee Nation at times in questions.

           The JAT adjudicated prior to the subject events that Pat Ragsdale and his staff were reinstated as the Marshals of the Cherokee Nation on February 25, 1997 and after hearing on March 26, 1997. See Appendix “A” to Complaint, Exhibit “B” Orders of the JAT. In the case of Byrd v. Ragsdale, JAT 97-07, a lawsuit filed by Byrd to remove Ragsdale as the Director of the Marshal’s Service, the JAT after hearing on Byrd’s motions and petition held that Ragsdale was reinstated until the completion of the criminal investigation of Byrd for diversion of tribal funds. This case and the circumstances regarding it were published widely in Tahlequah and Muskogee. The JAT is the ultimate arbiter of employment disputes within the Cherokee Nation. EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989). The Judicial Appeals Tribunal has exclusive jurisdiction over employment matters pursuant to the Cherokee Nation Constitution Article XII and had authority to issue a Temporary Restraining Order reinstating Ragsdale pursuant to FRCP Rule 65. The Cherokee Nation’s Constitution provides “for cause” status to employees employed one year. Oklahoma law acknowledges a cause of action for employment termination in violation of public policy. See Burk v. K-Mart, 770 P.2d 24 (Okla. 1989). Certainly terminating the employment of a Marshal because he served a search warrant as required by statute is in violation of public policy and actionable under Burk. The decisions regarding the employment and status of Pat Ragsdale and his staff as Marshals of the Cherokee Nation is the final word. Defendants had more than sufficient notice thought the intense press coverage to know that the JAT had reinstated Ragsdale and he and his employees were the lawful police of the Cherokee Nation.

Proposition Six: The Judicial Appeals Tribunal issued a series of orders which protected the Cherokee Nation Marshals in their investigation of diversion of funds by Principal Chief Joe Byrd, prohibited interference with the investigation and protected evidence and ordered the Cherokee Nation Courthouse opened on August 13, 1997.

           Of open record, within the Cherokee Nation Courthouse, in the case of Joe Byrd v. Pat Ragsdale, Cherokee Nation Marshal Service and Chief Justice Ralph Keen, CIV 97-02, JAT 97-07, the JAT issued the following orders:

February 25, 1997- Evidence taken pursuant to a search warrant that day be placed under guard and that the evidence not be removed or released to anyone pending order of the court.

February 27, 1997- Evidence taken pursuant to a search warrant be placed under guard.

March 5, 1997- Reaffirmed that “no one interfere with the performance of the duties of the Cherokee Nation Marshal Service” and ordered that “anyone interfering with the performance of the duties of such Marshal would be considered in contempt of Court, and charged with the crime of obstruction of justice.” The Court further ordered, “that no officer, employee, contractor and/or official of the Cherokee Nation shall take any action, directly or indirectly, which could construed as casting doubt on the fact that Pat Ragsdale is the Director of the Cherokee Nation Marshal Service and shall remain so until further Order of this Court.”

March 21, 1997- The Court ordered, “Take no further action to impanel any group of security officers or official to carry on the law enforcement service presently performed by the Cherokee Nation Marshal Service, until further Order of this Court. Moreover, if any such group is impaneled or commissioned, which attempts to interfere with or carry out the present duties of the Cherokee Nation Marshal Service, that group and the individual participants of such group will, upon appropriate motion, face contempt of court and obstruction of justice charges.”

April 10, 1997- The Court ordered, “This Court, as the Court of last resort and the highest Court within the Cherokee Nation pursuant to the Cherokee Nation Constitution, has ordered on several occasions the Cherokee Nation Marshal Service to be reinstated as such. Further, the Court ordered no person to in any way disrupt the continued operations of the Marshal Service. THIS COURT HEREBY REQUEST the vendors to not disrupt the service they provide to the Marshals until further Order of this Court.” (Emphasis added.)

           Each of the above orders were issued prior to the June 20, 1997 siege of the Courthouse and were widely reported in the local newspapers and television. See Proposition Seven. Prior to the August 13, 1997 attempt to open the Courthouse by the Cherokee Nation Marshals, the JAT issued orders which were hand-delivered to certain Defendants and discussed by them. In fact, it was the belief by the Marshals and the United States Attorney for the Eastern District, that the Defendants would assist the Marshals in opening up the Courthouse rather than physically preventing them from doing so. The JAT orders delivered to the Defendants appears below.

August 10, 1997- “The Constitution of the Cherokee Nation has given this Court final authority to interpret Cherokee law. Article VII: “the decisions of the Judicial Appeal[s] Tribunal shall be final insofar as the judicial process of the Cherokee Nation is concerned”.

           By statute, the Tribal Council has implemented Article VII and has given this Court authority: “All decisions made by the Judicial Appeals Tribunal shall have the force of law, as to the construction and application thereof, in all the courts of this Nation, until such construction or application shall be limited, altered, or in any manner amended, by the subsequent decision of a subsequent case by the Judicial Appeals Tribunal.” 20 C.N.C.A. § 54.

           The attempt to impeach these justices by the Tribal Council on May 3, 1997 was null and void, by virtue of a failure to meet the constitutional quorum requirements. (See Holder v. Byrd). Therefore, this Court, as currently constituted, is the legitimate highest court of the Cherokee Nation.

Part of Legislative Act 7-95 was passed to amend 20 C.N.C.A. § 40 so that it now begins:

           The office of the Judicial Appeals Tribunal shall be located in the Cherokee Nation Courthouse, which is the former Cherokee nation Capitol Building located in Tahlequah, Oklahoma. The Judicial Appeals Tribunal shall exercise general superintendence, direction and control over the Cherokee Nation Courthouse. (emphasis added) 51 C.N.C.A. § 62 provides that “It shall be the duty of the marshal to attend upon the courts... and to take all necessary and lawful measures in the execution of the judgment of the courts committed to him to execute, and also to arrest and cause to be tried, all persons who may be charged with criminal defenses.”

           On June 20, 1997, control of the Cherokee Nation Courthouse was removed from the Judicial Appeals Tribunal by force. Such action was in violation of 20 C.N.C.A. § 40 and completely unlawful. Since that time, the Cherokee Nation Courthouse has been under the physical control of Chief Byrd’s security force. By Judicial Appeals Tribunal Order of June 23, 1997, members of chief Byrd’s security force were directed to (1) provide keys for the justices, (2) to remove the chain from the west door, (3) to refrain from hindering access to the building by authorized persons, and (4) to vacate the building. (A copy of that Order is attached hereto.) None of these actions have been accomplished.

THEREFORE, IT IS ORDERED that the Cherokee Nation Marshal Service under the direction of Marshal Pat Ragsdale is directed at noon on Wednesday, August 13, 1997, to take and maintain control of the Cherokee Nation Courthouse under the authority of the Judicial Appeals Tribunal’s previous order and this order. Marshal Ragsdale and those marshals under this direction are instructed to seek as they believed appropriate the help of local, county, and state authorities under the existing cross-deputization agreement now in effect, as well as Bureau of Indian Affairs Police, in the execution of this order and provide copies of the Order to those authorities. The Marshal Service shall use their discretion in the carrying out of this Order, but are directed to take all appropriated measures to reduce the possibility of violence in do doing.”

/S/ Ralph Keen, Chief Justice

Judicial Appeals Tribunal
August 12, 1997


The JAT issued an amended order to the August 10, 1997 order which included the following:

THEREFORE, IT IS ORDERED that Pat Ragsdale, acting as bailiff for this Court, will re-open the Courthouse to the use of this Court and the use of the [sic] Cherokee [sic] people at noon on Wednesday, August 13, 1997, under the authority of the Judicial Appeals Tribunal’s previous order(s) and this order. Bailiff Ragsdale and those helping him, under his direction, are instructed to insure the safety of the building and its access before allowing entrance to the court personnel, the Justices, and the public.”

These orders were entitled to full faith and credit by state and federal law. Even though the Defendants had shown disdain and disrespect for the laws and orders of the Cherokee Nation, each Defendant was obligated to grant full faith and credit under their respective laws. Defendants had receipt of the above orders but elected not only to ignore them but actively worked against them and physically repelled the Cherokee Nation Marshals from executing them. The ultimate insult was to arrest Marshal Pat Ragsdale and tribal Prosecutor Diane Blalock for their efforts to execute these orders.

Proposition Seven: Defendants had actual and constructive notice of the law of the Cherokee Nation and orders of the Judicial Appeals Tribunal through exhaustive media reporting and by the fact that the District Attorney was a former tribal judge and the City Attorney was the prosecutor in the illegal attempt to remove the justices.

           The events of the Cherokee Nation Constitutional crisis were extensively covered by the local and area press. Tahlequah, a city of some 16,000 population has two news papers: the Tahlequah Daily Press and the Tahlequah Times Record. The Muskogee Phoenix and Tulsa World each have substantial distribution in Tahlequah and Muskogee where the Defendants live and work.

           Articles appearing in the local newspapers gave notice to the Defendants that the authority of the Byrd Administration to terminate the Marshals was questioned, that the Marshals were reinstated by the JAT, that the JAT issued protective orders to the Marshals from interference with their duties at the Courthouse, and that the JAT had control and supervision over the Courthouse. The following sampling of numerous articles were readily available to Defendants and belie any assertion that the Defendants did not know they were violating tribal court orders and laws on June 20, 1997 and August 13, 1997. See Appendix “B”, Exhibit “B”, Newspaper Clippings to Local Law Enforcement.

March 21, 1997 Tahlequah Daily Press- “Byrd names new Marshal head” “The order states that on Feb. 25 and March 5, this Court entered orders that in this matter in which, among other thing, directed that no one shall attempt to interrupt, interfere, intimidate or disrupt the Nation Marshal Service or the prosecutor’s office in the performance of their duties.”

March 21, 1997 Tahlequah Times Record- “Cherokee chief rejects court ruling” “As principal chief, I do not recognize the authority of the courts over my marshal service,” Byrd said...The tribe’s court ordered Ragsdale reinstated and barred tribal official from interfering with the service.”

March 22, 1997 Tahlequah Times Record- “Chief defies court tribunal” “In as press conference held Thursday, Byrd said he did not recognize the authority of the tribal courts over “My marshal service,” and would not abide by as court order that he believes is illegal.” “His [Byrd’s] actions action in direct retaliation for the Marshal Service’s role in investigating financial fraud and corruption in Plaintiff’s administration, and are as continuing attempt to thwart ongoing investigations,” stated Blalock in her emergency writ.” “Birdwell’s order further stated that any more attempts to impanel or commission another group that would interfere with or carry out the present duties of the Nations’s Marshal Service would be considered as contempt of the court order and obstruction of justice.”

March 27, 1997 Tahlequah Daily Press- ”Tribunal orders end to controversies” “Justices overruled a motion filed Feb. 25 by Cherokee Principal Chief Joe Byrd asking the Tribunal to vacate their reinstatement of Pat Ragsdale who was director of the marshal service and Sharon Wright, marshal.”

March 27, 1997 Tahlequah Daily Press- “Tribunal issues arrest warrant for Byrd” “The Judicial Appeals Tribunal of the Cherokee Nation issued an bench warrant this morning for the arrest of Principal Chief Joe Byrd and Deputy Chief Garland Eagle.”

March 29, 1997 Muskogee Daily Phoenix- ” Marshals: Someone’s watching” “Byrd ignored the order saying he would obey only ordered he considers legal. In further defiance of the court, Byrd fired the other 12 marshals last week and cut off all their financial support. After ignoring an order to restore finding, Byrd was charged Thursday with obstruction of justice.”

April 12, 1997 Muskogee Phoenix- “Chief hit with more charges” “Byrd fired the top two mashals [sic] immediately after the search, sued the tribal chief justice who signed the search warrant and ignored an order reinstating the marshals from the tribe’s highest court, the Judicial Appeals Tribunal.” “ He has ignored a court order to restore the funding and put tribal administration who have tried to follow orders to do so on administrative leave. Byrd is scheduled to be tried on a charge of conspiring to obstruct justice on the April 25 docket of the tribe’s district court.”

April 18, 1997 Tahlequah, Time Record- “Dispute still troubles Cherokee tribe” “Byrd fired the marshals and later rejected the tribal court’s order to reinstate them. Instead, he hired his own armed security force and put Fishinghawk in charge. The chief believes the court over-stepped its bounds and said he will “ignore any Judicial Appeals Tribunal order he considers unconstitutional.” “Byrd has been charged in tribal court with conspiring to obstruct justice for firing the marshals.”

April 22, 1997 Tahlequah Daily Press- “Prosecutor says tribal action illegal; court weighing request” “Three Cherokee Nation judges are weighting whether the tribe’s legislature acted legally when it asked the Bureau of Indian Affairs to take over law enforcement last week.”

April 26, 1997 Tahlequah Times Journal- “Tribunal rules meeting illegal” “According to the ruling, the meeting was illegal because it was in violation of the Cherokee Constitution. Only nine tribal councilors were present at the meeting and the Cherokee Constitution defines a quorum as 10 members of the 15 member council.”

April 28, 1997 Muskogee Phoenix- “Justices say proceedings are illegal” “Byrd ignores court order and plans to go ahead with impeachments.” “Byrd fired the marshal that day after they executed a search warrant on the tribal complex and seized evidence of alleged misappropriation of funds. Byrd has since been charged in tribal court with obstruction of justice and three charges of misappropriation of tribal funds...”

May 6, 1997 Tahlequah Daily Press- "Justices refuse to recognize ouster” “But the justices maintain the action was illegal. “We have held (in Holder v. Byrd) that the meeting of the tribal council on April 15, 1997 was illegal.” “We have not been removed but are holding officer under valid appointments and valid confirmations.”

May 10, 1997 Tahlequah Times Record- "Cherokee court resumes hearings” “As Cherokee court resumed hearing cases Friday, although all threes of its justice have been ordered to leave the tribal courthouse.”“ Byrd spokeswoman Lisa Finley said Friday that the chief was out of town. She reiterated that no force would be used to remove the judges from the courthouse, but said “We don’t considered them justices.”

May 22, 1997 Tahlequah Daily Press- “Judge: Courthouse open for business” “That suspension was hand down last week, after the Byrd administration announced that Jordan would be holding court at the W.W. Keeler Complex, instead of the Cherokee Courthouse, Byrd also instructed the tribunal justices to vacate the courthouse after eight Cherokee council members. an Deputy Chief Garland Eagle, sitting as count of removal, impeached all three tribunal justices.” “In response to Keen’ statement Byrd released one of his own, once again denying the authority of the tribunal justice over any Cherokee Nation court cases.”

June 4, 1997 Tahlequah Times Record- "Cherokee council will study dispute” “Eagle is accused of violating the court’s orders by taking action linked to as tribal council meeting that the tribunal later declared illegal.”

July 1, 1997 Tahlequah Daily Press- "AG says cross-deputization stands” “One of those judges, Dwight Birdwell, said the attorney general’s opinion shows that the terminated Cherokee Nation marshals are still recognized as law enforcement officers. “I’m very happy about it,” he said. “It shows me Ms. Baker-Harrold’s advisement was completely erroneous.” August 16, 1997 Tahlequah Times Journal-”Justices Recognized as Office Tribunal Despite courthouse Controversy”

“However, Raley confirmed he has been involved in numerous discussion with the Department of Justice and the Department of Interior during the last 48 hours. “I can’t speak for the BIA but the Department of Justice recognizes the Tribunal a valid court,” he said.”

September 13, 1997 Tahlequah Times Journal- “Attorneys Orchestrate Impeachment Despite Prior Knowledge of Improper Procedures.” “According to Wright’s billing statement, as meeting was held at the home of Trial Councilor Bill Baker on April 27, 1997. Present at the meeting was Chaffin, Seymour, Tribal Councilors Baker, Mary Cooksey, Dora Maw Watie, Chuck Hoskins, Harley Terrel, Don Crittenden and Deputy Chief Garland Eagle.” “Notations on the billing statement read, “Confirmed everyone had the Order and everyone wants to move forward with he impeachment proceeding and disregard the Order of the Court relating to the Injunction. We discussed all aspects of the Order a explain by Harvey.”

Defendants were on notice that Principal Chief Byrd’s actions in the constitutional crisis were challenged on grounds he violated the tribe’s constitution and laws and his efforts to subdue the Judicial Branch were suspect.

           Also the above described events were covered extensively by Tulsa and Ft. Smith television stations. Channel 6, KOTV carried reports almost daily during the heights of the controversies.

           All of the laws of the Cherokee Nation and orders of the JAT were public record. Defendants had several principals and agents that were very familiar with Cherokee Nation law. District Attorney Diane Barker-Harrold was a former Cherokee Nation judge prior to her election in 1995 and Harvey Chaffin, is the attorney for the City of Tahlequah and was employed by Byrd loyalists on the Cherokee Nation Council to conduct an illegal removal of the JAT.

           The Defendants were put on actual and constructive notice that Principal Chief Joe Byrd had been criminally charged with obstruction of justice over his alleged efforts to thwart the investigation by the Cherokee Nation Marshals.

           A reasonable person in view of the media coverage of the Cherokee Constitutional Crisis was put on notice of the established pertinent propositions of law cited herein and that the actions of the Principal Chief to subdue the Judicial Branch was suspect and illegal.

Proposition Eight: The law was well-established that pointing a firearm at the head of juvenile under arrest posing no threat to law enforcement was a constitutional violation.

           Paragraphs 62 and 63 of the Verified Complaint and the Statement of Edwin Lewis Romero attached to the lead Complaint as Appendix “A”, Exhibit “K” alleged that Plaintiff on August 5, 1997 was taken into the Courthouse by Byrd security personnel and he “took a gun out, pointed the gun at the juvenile Plaintiff” and would “blow his f____ head off.” Juvenile Plaintiff then was taken by City of Tahlequah Police and detained at the city jail for several hours. These allegations are not refuted.

           Law was clearly established in 1989 that threatening to use deadly force by holding a gun to the head of a 9-year old child and threatening to pull the trigger was objectively unreasonable given the alleged absence of any danger to the police. Eliot v. Thomas, 937 F.2d 338 (7th Cir. 1991). The Defendants are charged as operating in concert and part of a conspiracy. Defendants put Byrd and his security guards in control of the courthouse and on this particular occasion, the City of Tahlequah Police took the juvenile Plaintiff to jail and detained him for several hours. In summary, the law was well-established that the actions taken on August 5, 1997 were in clear violation of the juvenile plaintiff’s constitutional rights.

Proposition Nine: Plaintiffs were entitled to resist illegal actions by police.

           The Oklahoma Court of Criminal Appeals outlined the law regarding resistance of illegal actions by the police in Brown v. City of Oklahoma City, 721 P.2d 1346 (Okl App 1986) by holding:

           “For in the final analysis, if our government is to be in fact what we continually proclaim it to be in theory- one of laws not men- the freedom to refuse to obey a patently unlawful order of a police officer and the freedom to resist his trespasses, his unlawful efforts to seize property and effect illegal arrests, is fundamental and must remain inviolate.

In the instant case, if the Defendants prevented the Plaintiffs from exercising their First Amendment rights to assemble and enter a public building permitted by the caretaker of the building in violation of tribal court orders, then their actions of detention, rejection and interference with Plaintiffs’ rights were unlawful and Plaintiffs were entitled to resist the Defendants’ police actions. See Walters v. State, 403 P.2d 267 (Okl.Cr.1965); Davis v. State, 53 Okl.Cr. 411, 12 P.2d 555 (1932).

           The U.S. Supreme Court, in Wright v. Georgia, 373 U.S. 284, 291, 83 S.Ct. 1240, 1245-373 U.S. 284, 292 , 83 S.Ct. 1240,1245 (1963), addressed the right to resist unconstitutional and unlawful arrest in the context of local police arresting black youth at a white playground for disturbing the peace. The Court held in Wright, First, it is said that failure to obey the command of a police officer constitutes a traditional form of breach of the peace. Obviously, however, one cannot be punished for failing to obey the command of an officer if that command is itself violative of the Constitution. The command of the officers in this case was doubly a violation of Petitioners' constitutional rights. It was obviously based, according to the testimony of the arresting officers themselves, upon their intention to enforce racial discrimination in the park. For this reason the order violated the Equal Protection Clause of the Fourteenth Amendment. See New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46, affirming 5 Cir., 252 F.2d 122. The command was also violative of petitioners' rights because, as will be seen, the other asserted basis for the order--the possibility of disorder by others--could not justify exclusion of the petitioners from the park. Thus petitioners could not constitutionally be convicted for refusing to obey the officers. If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute. Cf. Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117; see also Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644.

The law is clear that if the officers were violating Plaintiffs’ constitutional and statutory rights, they were entitled to resist and object.

           Police are not entitled to qualified immunity in an illegal arrest case where the plaintiff presented evidence that he never struck the officer since, if plaintiff is believed, there was no probable cause to arrest. The officers are not entitled to qualified immunity, even though he could have arrested the plaintiff for an offense other than the ones for which he did arrest him. Santiago v Fenton, 891 F.2d 373 (1st Cir. 1989). If there was no reason to arrest the Plaintiffs, there was no probable cause to arrest him for resisting arrest. Adams v. Metiva, 31 F.3d 375 (6th Cir. 1994). Further, a factual question remains which cannot be settled on the facts presented by Defendants, that Plaintiffs violated any lawful order of the police. There is no allegation that Plaintiffs assaulted or threatened the police or other persons on either occasion which deserves the physical retaliation alleged by Plaintiffs. Keeping the peace does not entail throwing a law enforcement officer, elderly persons and women off a four foot high porch.

           If the police had no lawful authority to be on the courthouse premises, to aid and abet an executive who has blatantly refused to follow and enforce the laws of his own government, and to restrain the Plaintiffs from entering the building and grounds on the dates in question, Defendants have no qualified immunity.

           The Oklahoma Court of Criminal Appeals in Brown v. City of Oklahoma City, 721 P.2d 1346 (Okl App 1986), stated, “In contrast to the average citizen, a police officer is or should be trained to understand and recognize the legal nature, extent and limits of his official authority...The privilege to pack a gun and wear a badge carries with it the concomitant obligation to be aware of and to observe the bounds of specifically circumscribed police enforcement authority and duties ... If a law enforcer is engaged in the commission of a crime or is trespassing on one’s person or property, it makes no sense to us that the rights of the victim of such unlawful acts should be less than those he has if the wrongdoer is not a police officer.”

           Quite simply, Plaintiffs had the right to resist unlawful actions of the Defendants to restrain, detain, and prevent them from entering their own Courthouse with permission of the JAT. Quite simply, the Defendants were trespassing on the dates in question, unlawfully seized property and illegally arrested or detained Plaintiffs.

Proposition Ten: Contrary to Defendant Norman Fisher’s argument his actions were not reasonable in light of the factual circumstances.

           Defendants whip saw themselves arguing who, in their belief, had law enforcement authority and jurisdiction over the Cherokee Nation Courthouse. Some Defendants argue the BIA had primary law enforcement authority, others contend that it was state jurisdiction. County Defendants best illustrate the inconsistent position of Defendants in the Amendment to their brief where they state:

“Defendants contend that the Cherokee Nation Courthouse is not Indian Country and the Bureau of Indian Affairs had jurisdiction over the courthouse.”

State and tribal jurisdiction are exclusive. If the Courthouse was not Indian country then it was under state jurisdiction and the BIA had no jurisdiction and no authority to be at the Courthouse or to recruit local law enforcement. Only if the Courthouse was Indian country subject to tribal jurisdiction would the BIA have jurisdiction.

           In light of the well-established law demonstrated in Propositions One through Nine above, the Defendants could not reasonably rely on a federal agency staff member’s memorandum which on its face was inconsistent. The Anderson Memorandum did not challenge the Orders or the authority by the JAT. Defendants could not reasonably rely on an administrative staff member’s memorandum in degradation of state and federal law which extends full faith and credit to the proceedings and judgements of the Cherokee Nation. Defendants could not reasonably rely on an administrative staff member’s memorandum where that agency’s attorney, the Solicitor, in a published opinion generally accepted as the authority on powers of Indian tribes instructed Defendants to the contrary. Defendants, in force, elected to involve themselves and jump into the middle of an intra-tribal dispute previously resolved by the highest court of the Cherokee Nation and support the side operating in violation of law.

           The Defendants’ arguments that they could rely on an administrative staff memorandum to oust the Marshals and Justices out of their own courthouse on June 20, 1997 and then prevent them from re-entering on August 13, 1997 affronts the simplest logic. In fact, the Muskogee Phoenix, in an editorial dated December 17, 1997 stated the obvious, “Cherokee Nation Chief Joe Byrd has unleashed another whopper-that the Cherokee Nation Courthouse in downtown Tahlequah in not ‘Indian Country,’ this position is so foolish and transparent, no self respecting public official or citizen would believe it. Sadly, though, a crowd of federal, state and local officers seem ready to hide behind this claim to avoid the consequences of their support of Byrd’s seizure of the courthouse last June. The seizure of the courthouse was an outrageous defiance of the rule of tribal law. Byrd and those who supported him have to live with the consequences of their act, regardless of any fairy tales they may spin.”

Proposition Eleven: Contrary to Defendant Norman Fisher’s argument, the law was clearly established at the time he acted.

           Defendant Fisher argues that the status of the Cherokee Nation Courthouse as Indian country is essential in determining the legality of Norman Fisher’s actions on June 20, 1997. Indian country jurisdiction over the Courthouse is an issue as to Plaintiff Smith’s claim of extrajudicial arrest pursuant to Ross v. Neff, 905 F.2d 1349, (10th Cir. 1990). It does not effect the other cause of actions by Plaintiffs. The laws of the Cherokee Nation and the orders of its highest Court are entitled to full faith and credit as to intra-tribal issues, regardless of whether the Cherokee Nation Courthouse was well established as Indian country on the date in question. The law including that the JAT had statutory control over the courthouse, that the JAT was the final arbiter of Cherokee Nation law, that the JAT decided that Pat Ragsdale headed the law enforcement agency of the Cherokee Nation, that the JAT ordered that no one disturb or interfere with the Marshals at the Courthouse during their investigation and that the JAT ordered opening the Courthouse on August 13, 1997 did not depend on whether the Courthouse was Indian country. All of those questions are intra-tribal law that the JAT had exclusive authority to answer. The proprietary rights of the JAT as caretaker of the Courthouse was not subject to a previous finding Indian country jurisdiction. No one but the JAT had authority to say who came and went at the Courthouse.

Proposition Twelve: Although the decision that the Cherokee Nation Courthouse was Indian country came after the subject events the Defendants were on notice that the Courthouse was Indian country and are estopped from arguing they did not believe the Courthouse was Indian country.

           The District Court of the Cherokee Nation in 1991, Tina Jordon presiding, determined that the Cherokee Nation W.W. Keeler Complex was Indian country in the case of Cherokee Nation v. Farlan Quan, CR 91-26. This case was factually analogous to the Cherokee Nation courthouse and provided notice to the Defendants that the Cherokee Nation Courthouse was Indian country. Further, City, County and State Defendants are estopped from arguing they did not believe the Courthouse was Indian country because of judicial proceedings in 1978 in which each participated.

           In 1978, the Cherokee Nation was entitled to a grant of $910,000 from the United States Economic Development Administration. The Cherokee Nation, in a spirit of community with the City of Tahlequah and County of Cherokee, contributed that entitlement to the renovation of the old Tahlequah Hospital as a City-County Complex. Cherokee County, in return, agreed to transfer the Cherokee Nation Capitol Building, Supreme Court building and National Jail back to the Cherokee Nation. The City of Tahlequah, in a friendly suit against Cherokee County who was represented by the Cherokee County District Attorney’s Office, settled the ownership division of the new City-County Complex. See Journal Entry in Case No. C 78-327, City of Tahlequah v. Board of County Commissioners of Cherokee County. In the same lawsuit, the City and County acknowledged the contribution by the Cherokee Nation and the County was ordered to transfer the historic properties to the Cherokee Nation. There appears to have been no mechanism under state law for the County to transfer the historic properties directly to the Cherokee Nation, therefore the parties and the Court invoked Title 19, Oklahoma Statutes Chapter 10. - § 349 (1961). Section (A) provides:

A. 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 [in] 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 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)

There was no authority under state law to transfer the Cherokee Nation Courthouse to the Cherokee Nation, therefore, the City and County accepted the federal money and transferred the Courthouse to the United States with the Cherokee Nation as the equitable beneficiary. This transaction was approved by the Economic Development Administration, an agency of the federal government.

           In any event, since 1979, the City and County have acknowledged that the Courthouse was under federal supervision and set aside for the benefit of the Cherokee Nation. Never was there any mention, murmur or question that the Cherokee Nation Courthouse was not Indian country. Since 1991, all criminal jurisdiction at the Courthouse has been exclusively exercised by the Cherokee Nation. During proceedings in the tribal court case of Crawford v. Barker-Harrold, JAT 97-36 none of the Defendants herein, who were also Defendants in that case, produced any evidence on a Motion for Partial Summary Judgement that the Courthouse was Indian country that anyone other than the Cherokee Nation exercised criminal or civil jurisdiction at the Courthouse.

           The overwhelming history of this central Cherokee governmental building was enough to show this ground and building was the ultimate symbol of the survival and future of the Cherokee Nation. Since 1991, the Cherokee Nation has exercised criminal jurisdiction to the exclusion of the city, county and state. Neither the County Assessor or the State of Oklahoma has ever attempted to assess taxes against the Courthouse or the Cherokee Nation. The Cherokee Constitution and Tahlequah community espouses the Courthouse as the seat of government of the Cherokee Nation.

           Although no case decided the Courthouse was Indian country prior to the subject events, there was no question by the Defendants that the Courthouse was indeed Indian country and proceeded on that belief for years. See Appendix “B”, Exhibit “L ” Muskogee Phoenix Editorial, December 17, 1997.

           Defendant Norman Fisher now argues he is contesting the decision by the JAT in Crawford v. Barker-Harrold on grounds that the JAT was not a court of competent jurisdiction to decide that its own Courthouse was Indian country. Defendant Norman Fisher did not make that argument to the JAT prior to its decision. Further, the 10th Circuit in Enlow v. Moore, 134 F.3d 993 (10th Cir. 1998) held that a tribal court was a court of competent jurisdiction to determine whether certain lands in a fence dispute was Indian country. Defendant Norman Fisher’s argument is without merit.

           Defendants advance a second argument without merit regarding the recent U.S. Supreme Court case of Alaska v. Native Village of Venetie Tribal Government, 1998 W.L. 75038 (U.S.) which was decided after the JAT decision. The U.S. Supreme Court, in Venetie, decided that the two paramount considerations in determining whether a dependant Indian community pursuant to 11 U.S.C. § 1151 (c) were 1) federal set aside and, 2) federal superintendence of the land. As demonstrated above, the federal government provided $910,000 to purchase and set aside the Courthouse for the Cherokee Nation and the Defendants endeavored to place in trust by the United States for the benefit of the Cherokee Nation. Further, federal superintendence was evidence by some $780,000 of funding to the tribal Court since 1991. The JAT decision also found that the Courthouse could be Indian country pursuant to 11 U.S.C. § 1151 (a) which defines Indian country as tribal lands within a reservation.

           Venetie is distinguishable, Defendants correctly point out the Venetie reservation was dissolved by the federal government and their lands place into a state chartered corporation. The Cherokee Nation reservation was never dissolved and was in fact specifically perpetuated.

           All of the Defendants, since 1991, treated the Cherokee Nation Courthouse as Indian country until June 20, 1997 when they began the assault on the constitutional government of the Cherokee Nation.

Proposition Thirteen: Regardless of what theory Federal Defendants argue regarding the source of statutory authority for the BIA to reassume law enforcement, the BIA had no authority to countermand decisions of the highest Court of the Cherokee Nation on issues of intra-tribal concern.

           The Federal Defendants argue that the BIA reassumed law enforcement authority based on a finding that an emergency existed pursuant to 25 U.S.C. § 450m. That is not the issue and it does not matter if the BIA properly reassumed law enforcement pursuant to statute or not because no statute or delegation of authority allows the BIA to violate, disobey, or countermand orders of the JAT as to intra-tribal concerns.

           The BIA may, under certain circumstances, resume federal law enforcement, but the BIA did not and may not lawfully assume tribal law enforcement without the valid consent of the Cherokee Nation. The Cherokee Nation is entitled to make and enforce its own internal law as a matter of inherent sovereignty. The United States Supreme Court in Talton v. Mayes, 163 U.S. 376 (1895), held:

“By treaties and statutes of the United States the right of the Cherokee nation to exist as an autonomous body, subject always to the paramount authority of the United States, has been recognized. And from this fact there has consequently been conceded to exist in that nation power to make laws defining offenses and providing for the trial and punishment of those who violate them when the offenses are committed by one member of the tribe against one of its members within the territory of the nation.”

The Supreme Court, in Talton, further held, “It follows that as the powers of local self-government enjoyed by the Cherokee nation existed prior to the Constitution...” As previously cited, rights of the Cherokee Nation are retained unless specifically ceded away or taken explicitly by the federal government. Defendant do not and cannot show this Court that the inherent right of internal self-government and enforcement of internal laws has been taken away by the federal government from the Cherokee Nation because it has not. The undisputed authority regarding the issue of tribal powers is the October 25, 1934, Opinion of the Solicitor Re: The Powers of Indian Tribes, 55 I.D. 14. The Solicitor of the Department of Interior opines, in general, except as specifically limited, plenary civil and criminal jurisdiction rests with the duly constituted authorities of the Indian Tribe and “The Powers of an Indian tribe in the administration of justice derive from the substantive powers of self-government which are legally recognized to fall in the domain of tribal sovereignty.” Opinions of the Solicitor, Vol I, page 471. Tribal law enforcement authority and court jurisdiction are inherent only limited by the Cherokee Nation’s own Constitution and law and the federal Indian Civil Rights Act, 25 U.S.C. 1301 et seq. The federal government has concurrent jurisdiction with the Cherokee Nation for certain purposes such as enforcement of the Major Crimes Act, 18 U.S.C.A. § 1153. However, the Cherokee Nation’s authority to enforce its own laws are not dependent on the federal authority and may not be wiped out by an administrative fiat by the Department of the Interior. The only reliance on the federal government for enforcement of tribal law by the Cherokee Nation is for funds and federal deputations. Under the Self-Governance Compact, the Bureau of Indian Affairs is obligated to pay for the costs of the programs on long as there is compliance with the federal requirements for training and performance.

           Assumption of federal law enforcement by the BIA in no way effects the Cherokee Nation’s inherent right of self-government to enforce its own tribal laws. That proposition had been well-established since 1934 with the issuance of the Federal Defendants’ attorney opinion.

Proposition Fourteen: Defendant Fields and Proctor are not entitled to Qualified Immunity.

           Federal Defendants cite Fourth Amendment cases for the proposition that if an officer had probable cause that an offense was being committed then the arrest and detention was reasonable. There is no question that is a correct statement of the law. However, federal defendants fail to address what “offense” was committed. The question on June 20, 1997 was not that the Plaintiffs went under a police barricade but by what right or on what authority did the Defendants have in the first place to set up the barricade and prevent Plaintiffs from entering their Courthouse. Federal Defendants misstate the allegations of the Complaint in order to sensationalize and rationalize their conduct on June 20, 1997. The Byrd siege began at 4:00 a.m. when Byrd security guards physically forced Cherokee Nation Marshals out of the Courthouse. By 10:00 a.m., the Plaintiffs were segregated from the Courthouse by a barricade. Byrd security guards and Defendants were removing evidence, personal effects and computers from the building. There is no allegation or evidence of violence or threat of violence by the Plaintiffs before or during this time. The civilian Plaintiffs had no weapons of any kind. Federal Defendants argue that an inventory of the ammunition and weapons was removed that day from the Courthouse in an attempt to paint the Courthouse scene as unsafe. The 30-40 law enforcement officers employed by the Defendants also had an “inventory of ammunition and weapons” on their persons and in their cars. Defendants carried guns, mace, night sticks and had shot guns with “real” ammunition. So does all law enforcement agencies as did the Cherokee Nation Marshal Service. Each Marshal was approved and certified by BIA and federal law enforcement agencies as law enforcement officers. The training credentials of the Cherokee Nation Marshal Service exceeded the local law enforcement. It is transparent that the Byrd administration wished to disarm the Marshals in an attempt to subdue and disperse them as law enforcement officers who could execute orders of the Cherokee Nation courts.

           The Federal Defendants by their sensational hyperbole bring into clear focus their role on June 20, 1997 when they allude to the Courthouse has being a secure area. Yes it was secure but from whom and for what reason? It was secure from the Cherokee people who demanded a constitutional government, including Plaintiffs, and it was secured to allow Byrd security forces to take Courthouse away from its statutory caretaker under the color and apparent force of Defendants. Defendants continue to argue that it was reasonable to arrest people breaching a police line and attempt to enter a closed building where weapons were kept. Nonsense. Under that scenario, anytime a citizen attempted to enter a public building where a police department was located they would be subject to arrest.

           Federal Defendants attempt to rationalize the conduct of Defendant Proctor in his arrest of Plaintiff Smith by arguing that it was objectively reasonable for defendant Proctor to come to the assistance of the local law enforcement officers. However, if the allegations of the Complaint are unrefuted by the Defendant, the Court must accept theses allegations as true for purposes of the qualified immunity of Defendant. The allegation in paragraph 21 of the member case states, “Perry Proctor then proceeded to assist in the arrest of Plaintiff and rubbed Plaintiff’s face in the ground while Plaintiff was being hand-cuffed.” That kind of behavior is patently unreasonable and excessive force which is in violation of Plaintiff’s Fifth Amendment rights. In this case if Defendant creates question of fact as to the events that occurred, qualified immunity is not a defense.

           Further, a reasonable law enforcement officer should know that to restrict the entry of a tribal Prosecutor and Court Clerks from their own offices and restrain an attorney from filing documents at the Courthouse would be a violation of law.

Proposition Fifteen: Plaintiffs have adequately plead a cause of action for Infringement of First Amendment Rights.

           The First Amendment encompasses the right of assembly as well as the right of freedom of speech. Often the two are intertwined so that the exercise of assembly is an expression of speech. The Complaints in each case are presented in the context of Plaintiffs protesting a regime gone wild. In any event, if this Court finds further articulation is required in Plaintiffs’ notice pleading, Plaintiffs move the court for leave to amend its Complaint.

IV. CONCLUSION

           The Defendants’ failure to address the critical issues in this case leaves a deafening silence. Those issues include whether the laws and orders of the highest Court of the Cherokee Nation are entitled to be honored by Defendants. Not once in the many pages of their briefs have the Defendants attempted to explain away their brazen assault and defiance of tribal court orders as to intra-tribal affairs. Not once have the Defendants addressed the issue of holding the caretaker and guests hostage while the criminal loots their house. Not once have the Defendants addressed why on June 20, 1997, if they were only “keeping the peace”, that they did not stop at the first floor of the Courthouse with the eviction of the Marshal, but continued to the second floor to dispossess and oust the JAT, District Court, Prosecutor and Court Clerks. Not once have the Defendants explained why it is “keeping the peace” when they threw the lawful Cherokee Nation Marshals off the back porch and arrested its Director during the service of the JAT’s order on August 13, 1997. If that is “keeping the peace”, it is an illegal and unlawful peace that Plaintiffs are entitled to protest. Not once have the Defendants explained why, after receipt of the JAT’s Order to open the Courthouse, they did not seek judicial guidance from the JAT or some other court of competent jurisdiction.

           The ultimate question is whether we have governments of law or governments of personalities and money. The Constitutions and laws of the United States, State of Oklahoma and the Cherokee Nation confirm the former.

                      Defendants motions for qualified immunity should be DENIED.

                      Submitted this ___ day of April, 1998

____________________
Robert Green, OBA # 3573
2420 South Owasso Place
Tulsa Oklahoma 74114-2642
Telephone: 918 743-0515
FAX: 918 743-6577

CERTIFICATE OF SERVICE

           I, the undersigned, do hereby certify on the ____ day of April, 1998 a true and correct copy of the above and foregoing document was mailed by first class mail to the persons listed below.

                                            _____________________________ Robert G. Green

Chris Collins
Gayle I. Jones
429 NE 50th, 2nd Floor
Oklahoma City, OK 73105-1815
Betty O. Williams
Jan Marie Cunningham
P.O. Box 87
Muskogee, 74402

Bruce Green
U.S. Attorney
1200 West Okmulgee
Muskogee, OK 74401

Dianne Spellberg
Torts Branch-Civil Division
U.S. Department of Justice
1425 New York Ave., Room 8122
Washington, D.C. 20530

Robert Anthony
Assistant Attorney General
4545 N. Lincoln Blvd., Suite 260
Oklahoma City, OK 73105


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