Copyright © 1998 NLThomas
All Rights Reserved

Last week Brad Johnson signed a letter of intent to play football for T.U. That's a scholarship, Congratulations Brad, we all support you, so make us proud. We will be watching so work extra hard and we wish you the best!

O.G. and the Vocal Majority

This young man had to fight two battles for his college opportunities and scholarship... one battle was that of a young athlete who worked his way us as a top ball player that gained the notice of sports scouts and coaches... the other was in a legal battle to hang on to his chance for a scholarship that was almost sabotaged by Joe Byrd and the Stipe owned Tahlequah Daily Press. None of our youth should have to be put through what Brad went through! This is why O.G's news is such a great news. The following was posted on this board back in Sept./Oct. We are overjoyed that Brad has made it through his battles.. now he will begin the best one of all... college and his chance to work his way through with a sports scholarship!

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Letter to Cherokee Nation Council
"Joe Undermining Brad Johnson Case"
by Chad Smith

Copyright © 1998 C.Smith
All Rights Reserved

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Re: Brad Johnson

Dear Councilpersons,

This letter is to inform you as to the basis of the recent controversy regarding whether or not the Cherokee Nation District Court has authority and jurisdiction to issued restraining orders which allow Brad Johnson, the Sequoyah High School blue chip football player, to play football.

The Oklahoma Secondary School Activities Association (OSSAA) determines eligibility of students. They alleged Brad suited up for one scrimmage as a Freshman at Westville. If he did so he would be ineligible to play football as a fifth year senior. He repeated the ninth grade at Sequoyah. The overwhelming evidence shows that he did not and is eligible to play this, his Senior year. Brad is a student at Sequoyah and ranked 22nd in the State of Oklahoma as a college prospect football player. The Sequoyah High School Board, the coaches and the School Administration all agree.

Once Brad or any other athlete is determined ineligible he is entitled to challenge the OSSAA's decision in court. In Brad's case, we filed his appeal in the Cherokee Nation District Court. Why? I filed a similar case in the Cherokee Nation District Court titled Samuels vs OSSAA in which then Judge Diane Barker issued the Temporary Restraining Order and later the OSSAA settled the case and allowed the student fifth year eligibility. Also you will find in the enclosed Preliminary Injunction, citations to U.S. Supreme Court cases which support the proposition that the Cherokee Nation District Court has jurisdiction even over non-Indian organizations.

The only difference between the 1994 tribal court case and Brad's case is that Joe Byrd issued an unsolicited press release saying that Drew Wilcoxen was not a judge and the Cherokee Nation had no jurisdiction over the issue. This prompted the OSSAA to send threatening letters to the Sequoyah High School if they allowed Brad to play.

The long and short of it is whether or not the Sequoyah School Board is going to follow the orders of the Cherokee Nation District Court. I understand it is a difficult position for the School Board, however the Cherokee Nation District Court has jurisdiction exclusively in Indian country and its orders are entitled by state and federal law to full faith and credit outside of Indian country. What the OSSAA does not want to understand is that by state law they are required to give full faith and credit to the orders of the Cherokee Nation District Court.

(1997) Chronology of the events in this case.

September 17 - OSSAA rules Brad ineligible.

September 26 - Brad filed lawsuit in the Cherokee Nation District Court and Drew Wilcoxen issued a Temporary Restraining Order against the OSSAA and Sequoyah High School allowing Brad to play. Brad played that night against Chelsea.

October 2 - Joe Byrd issued an unsolicited press release saying that Drew Wilcoxen is not a judge and the Cherokee Nation has no jurisdiction over the OSSAA.

October 3 - Sequoyah High School Board held a special meeting without Brad present but with Joe present and voted to support the OSSAA. Dr. Sly and Coach Watt did not let Brad play against Claremore that evening.

October 6 - A hearing is held on Brad's motion for a preliminary junction which is granted. Neither OSSAA or Sequoyah appeared. Judge Wilcoxen ordered Brad be allowed to play. That evening Chad Smith appeared before the Sequoyah School Board, asked them to reconsider their vote, explained the lawsuit and answered questions by the Board. The Board delayed the request to allow Brad to play until they can talk with another attorney.

October 10 - Next game for Brad at Sequoyah.

There are two issues in Joe Byrd's press release.

1) When does Drew Wilcoxen's term expire.

Wilcoxen was appointed in February 1995 by Wilma Mankiller and confirmed by the Council on a Motion by Don Crittenden to a four year term which expires in February 1999. The statute providing for a District Judge or Associate District Judge states they shall be "appointed for a term of four (4) years." See 20 OS section 13. Unlike elected offices which have a term which begins and ends on a certain date such as the Principal Chief, the judges have a four year term regardless of when they start. Judge Wilcoxen was appointed to a four year term. Enclosed is the Council meeting minutes in which Wilcoxen was appointed and there is nothing in those minutes which suggest he was appointed to less than a four year term. A press release at the time stated that Wilcoxen was appointed to a four year term. Joe argues in his press release that Wilcoxen was appointed to the unexpired term of Diane Barker- Harrold. However, if you read the statute (a copy is enclosed) there is no provisions for date-to-date terms. There is no unexpired term when a judge leaves office. The newly appointed judge begins a new four year term. The statute is simple and clear. Therefore, Drew Wilcoxen's term is over in 1999. Further, it is not Joe's place to say who is and who isn't a judge. If he believes Wilcoxen's term has expired he should go to court and let the court decide when Wilcoxen's term expires. The Cherokee Constitution says it is the purpose of the Tribunal "to hear and resolve any disagreements arising under any provision of this Constitution or any enactment of the Council." Article VII. Interpretation of the statute providing for the term of judges certainly is a disagreement arising under an enactment of the Council.

2) May the Cherokee Nation Courts assert jurisdiction over the Sequoyah High School and the OSSAA.

The Cherokee Nation court have asserted jurisdiction over Sequoyah High School for years. Look at all the juvenile and criminal cases the Cherokee Nation courts have taken since 1991 which occurred at Sequoyah. The other question is whether or not the Cherokee courts may assert jurisdiction over a non-Indian organization that has contacts with Brad Johnson and Sequoyah High School.

The Cherokee courts have proper jurisdiction because Brad resides at Sequoyah High School as a boarding student. Sequoyah High School is a member of the Oklahoma Secondary School Athletic Association, and the activities and actions of Brad and the OSSAA and Sequoyah form a connection with Indian country under the jurisdiction of the Cherokee Nation. In 1855, the U.S. Supreme Court held that the Cherokee Nation was entitled to exercise jurisdiction over non-Indian creditors. See Mackey v Coxe, 59 U.S. 103 (18 How.) 100 (1855). In 1893, the federal court of appeals held that the Cherokee Nation may exercise jurisdiction over non- Indian tenants. See Medlin v Ice, 56 F. 12 (8th Cir Indian Terr. 1893). Recently, the U.S. Supreme Court has ruled in several cases that tribes may exercise jurisdiction over non-Indians connected with Indian country. See National Farmers v Crow Tribe, 471 U.S. 845 (1985); and Iowa Mutual v LaPlante, 480 U.S. 9 (1987). Also see World Wide Volkswagen Corp v Woodson, 444 U.S. 286.

Diane Barker-Harrold, as a District Court Judge in 1994, assumed and asserted jurisdiction over the same Defendants in a different case involving similar facts titled Samuels vs OSSAA and Sequoyah High School, C 94-07 in which she issued a TRO and the case was ultimately settle allowing Samuels fifth year eligibility. See a copy of that TRO attached. Therefore, the Cherokee Nation District Court may not only assert jurisdiction but has successfully asserted jurisdiction in the past over the same parties. It is worthy of note that the OSSAA did not appear and challenge jurisdiction at the hearing in Brad's case on October 6, 1997.

Again it is improper while Brad's case is pending for Joe to attempt to sabotage it by declaring that the Cherokee Nation's court has no jurisdiction over non-Indians. It is the court to determine its jurisdiction under the concept of "separation of powers".

Enclosed are the following exhibits which clarify the issues in this controversy.

1. 20 OS section 13- Statute regarding appointment of Judges
2. Council Meeting Minutes regarding Wilcoxen's appointment
3. Preliminary Injunction against OSSAA and Sequoyah
4. Temporary Restraining Order against OSSAA and Sequoyah
5. Petition against OSSAA and Sequoyah.
6. Press Release by Joe Byrd
7. TRO issued by Diane Barker-Harrold in 1994

I request that you consider approving an resolution to support Brad Johnson and the Cherokee Nation District Court and request the Sequoyah High School Board to follow the orders of our court in the Brad Johnson case. Regardless of the political climate at the Cherokee Nation, Brad Johnson should not be made to suffer and should be allowed to play football.

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Chad Smith sent following letter in response to the Tahlequah Daily Press sports writer who was complaining about tribal court issuing a Temporary Restraining Order concerning the Brad Johnson case. On October 2, 1997 Joe Byrd issue an unsolicited press release stating the Cherokee Nation had no jurisdiction over the OSSAA and that Drew Wilcoxen was not a judge. Please note in 1994 Judge Tina Jordan issued an identical order in the case of Samuels vs OSSAA and the OSSAA allowed the student to play.

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Letter In Reply
"Joe Byrd Sabotage of Sequoyah Blue Chipper"
by Chad Smith

Copyright © 1997-1998 C.Smith
All Rights Reserved

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Chadwick Smith, Attorney at Law
P.O. Box 9192 Tulsa, OK 74157-0192
Phone: (918) 446-4601
FAX: (918) 227-1588

October 3, 1997

Editor of Tahlequah Daily Press and
Dole Barlow Sports Writer
Tahlequah Daily Press Tahlequah, OK

Re: "Supreme Arrogance" or "Supreme Ignorance"

Dear Mr. Barlow,

           I have read your article in the September 30, 1997 edition of the Pictorial Press titled "Tribal Jurisdiction should not apply in Johnson case" in which you assert "for [Judge] Wilcoxen to say that Johnson does not have to follow their rulings is supreme arrogance". I represent Brad Johnson and I filed the lawsuit in his behalf in the Cherokee Nation District Court. The question may be better framed whether your article is supreme arrogance or supreme ignorance. You write that you are "fuming" because a Temporary Restraining Order was hand down by the Cherokee Nation District Court (CNDC) and it could turn eligibility for high school students in Oklahoma into chaos."

           It is well established that a high school student denied eligibility by the Oklahoma Secondary School Activities Association (OSSAA) has a right to contest the decision in court. In fact you point out in your article that Tracy Autry did so in federal court. The case decision books will report scores of lawsuits by student athletes contesting the decision of the OSSAA of which some were won by the students. Why would you have any objection for a student to contest the decision of the OSSAA in court? Issuance of Temporary Restraining Orders by courts have not created chaos in the past, so why should they now? You assert that the Cherokee Nation does not control the OSSAA. I agree, neither does the State of Oklahoma or the Federal Government.

           The OSSAA is a voluntary association not a governmental agency. The lawsuit by Brad Johnson does not purport to control the OSSAA. Courts do not control the OSSAA, courts provide a forum to resolve disputes by issuing decisions whether it is the federal, state or tribal courts. The question is whether or not the Cherokee Nation District Court has jurisdiction over this controversy. If it does then by state law the OSSAA is obligated to abide by the decision of the Cherokee Nation District Court. Since you assert that Brad Johnson's case should have been brought in state or federal court, it appears you are unaware of the judicial history of the Cherokee Nation.

           The Cherokee Nation had a Supreme and District Court established when it came to Indian Territory after the infamous Trial of Tears in 1839. The Cherokee Nation District Court was in existence some 68 years before an Oklahoma District Court ever opened a law book or courthouse door. In fact the Cherokee Nation Supreme Court building, built in 1844, was the first public building in Oklahoma. In fact, the United States Supreme Court in the 1855 case of Mackey v Coxe held that the Cherokee Nation had jurisdiction over non-Indians in civil matters. Again in the 1893 case of Medlin v Ice, the Eight Circuit federal court affirmed that the Cherokee Nation had jurisdiction over non-Indians in civil matters. Further the United States Supreme Court in two recent cases reaffirmed that tribes have jurisdiction over non-Indian in civil matters, See National Farmers Insurance Union Insurance Company v Crow Tribe (1985) and Iowa Mutual v LaPlante (1987).

           Civil jurisdiction is determined by a "nexus" or contacts test. Which ever court has most significant contacts with a civil lawsuit has jurisdiction. See the United States Supreme Court case of World Wide Volkswagen v Woodson.

           In Brad Johnson's case the most significant contacts of the case involve the Cherokee Nation District Court rather than federal or state court. The Plaintiff, Brad Johnson, and one of the Defendants, Sequoyah High, were located on Cherokee territory. The subject matter of the controversy and his eligibility was centered at Sequoyah High School. The evidence was most available at Sequoyah High School. The only piece of the litigation puzzle not associated with the Cherokee Nation was the OSSAA. So of the three courts which Johnson could have brought the action, the Cherokee Nation District Court has the greatest number of contacts. You should also be aware that both federal and Oklahoma state courts give full faith and credit to the judgments of the Cherokee Nation as does the Cherokee Nation give full faith and credit to state and federal judgments. You should also note that the Cherokee Nation District Court issued a similar TRO in the 1994 case of Samuels vs OSSAA in which the OSSAA settled the case and granted fifth year eligibility on similar facts.

           In this case, the Cherokee Nation District Court may assert and assume jurisdiction. The OSSAA has every right in the world to contest jurisdiction. If they lose in tribal court they may go to federal court. The point of your article appears that there must be something wrong with the Cherokee Nation District Court deciding an issue rather than the state or federal court. The Cherokee Nation District Court follows the same federal rules of civil procedure and evidence as does the federal court. I would remind you that Drew Wilcoxen, the District Court Judge for the Cherokee Nation has legal credentials as good or better as any Judge in Oklahoma and is a well-respected attorney in Muskogee. The quality of the Cherokee Nation District Court is not a question. I dare say that any judge in the state of Oklahoma, whether they be tribal or state, would have issue the temporary restraining order in behalf of Brad Johnson. He is the success story that every American admires.

           As a ninth grader he was from a broken home and raised by this grandparents. In his first semester his grandfather who he was very close became ill and died. He receive almost all "F"s at Westville that freshman year. He did not participate in any game or scrimmage that year according to Westville records. After he transferred to Sequoyah, with their discipline and care, he became a 3.00 grade average student and is President of the Senior Class. He is now rated 22nd in the state as a college football prospect and has a bright future. He has by his own will and bootstraps made something of himself and now the OSSAA wants to limit his prospects for a higher education scholarship. This is the kind of student that hardship exceptions were intended. The refusal of the OSSAA to grant an exception appears to be based on what you pointed out in your article, friction between area coaches. Such inter-school friction should not punish a fine young man like Brad Johnson. Neither should your ignorance about Indian jurisdiction.

           I can hear your screams of "unfair advantage" if Sequoyah had won against Chelsea rather than being soundly beaten. What is this "unfair advantage" that you allude? Are you suggesting that an Indian in the Cherokee Nation Court would have an advantage over the non-Indian OSSAA which would not exist if they were in a white state court? Perhaps you are suggesting that the OSSAA would have an advantage in state court over an Indian that it may not have in a tribal court? I certainly hope neither is your suggestion. The fascinating but common question is why do you "fume", what emotional nerve was hit by the filing of this case in tribal court? Is it a question of race or them "Indians getting away with something".

           Indian tribes face the continuing burden of educating non-Indian every time an issue arises. Why do you care if the same decision is made by an Indian judge rather than a white judge? I submit if you and the American public understood its own history there would be considerably less "fuming" about Indian issues. I submit you would look at the substantive issues in Brad Johnson's case not the forum. Ignorance leads to "One blindly or obstinately devoted to a particular creed." And according to Webster's Dictionary that is bigotry.

           I have no assurance that Judge Wilcoxen will not "throw our case out" at hearing on October 6, 1997. Perhaps Brad Johnson would have a better chance of success in state court, who knows. Maybe, you will expand your education and attend his hearing to learn of the merits. Lets see if you agree with Judge Wilcoxen regardless of what his decision is. Perhaps if you learn the law, facts and history, you will no longer have the desire to "fume" and you may decide your article was the one of supreme arrogance or supreme ignorance.

Yours,
Chad Smith