Copyright © 1998 NLThomas
All Rights Reserved

Cherokee Press Association
Wednesday, January, 28 1998
Copyright © 1998 CPA
All Rights Reserved

PRESS RELEASE - TAHLEQUAH
January 28, 1998

TRIBAL COURT GIVES BACK TO CHEROKEE WHAT CHIEF TRIED TO GIVE AWAY

Unbelievably the Chief of the Cherokee Nation has taken the position in Federal court in Oklahoma that the Cherokee Tribal Courthouse, which was originally erected by the Cherokee Nation more than sixty years before Oklahoma statehood, is not “Indian Country” which means the Cherokee tribe’s court and police do not have primary law enforcement jurisdiction at their court house. Today the Cherokee Judicial Appeals Tribunal, the equivalent to the Supreme Court of the United States, issued a 16-page opinion holding that, contrary to Chief Joe Byrd’s legal position, the historic tribal courthouse is “Indian Country” and that by analogy so is the Cherokee Tribal Complex which houses the Executive and Legislative branches of the Cherokee government in Tahlequah, Oklahoma.

At a recent dedication held at the Tribal Courthouse, ex-Chief Wilma Mankiller was quoted as saying that “it is beyond stupid to say that a smokeshop on a highway is Indian Country, but our historic Tribal Courthouse is not.” No doubt, the vast majority of Cherokees would agree with her.

“The ramifications of today’s Opinion by the JAT are nationwide in importance and are particularly extensive here in Oklahoma and in the Cherokee Nation,” said Chuck Shipley, a Tulsa attorney who has represented the three Justices of the JAT in litigation with the BIA. “Most people do not understand that the apparently crazy legal position concocted by Chief Joe Byrd and his handlers at the BIA was required in order to continue the BIA’s military support for Joe Byrd’s dictatorship. In order for the BIA to have reneged on its August 12th agreement to assist Pat Ragsdale, acting as the bailiff for the JAT, in implementing the JAT’s Order to recover possession of the Tribal Courthouse on August 13, 1997, the BIA and Joe Byrd’s Washington law firm came up with the counterfeit legal theory that the Tribal Courthouse was not Indian Country. This allowed the BIA, which is charged with the knowledge that the Cherokee Nation’s constitution and statutes grant the exclusive right to occupancy to the Tribal Courthouse to the JAT, to sidestep its responsibility in assisting the Tribal court to recover occupancy of the Courthouse. The BIA claimed since the Tribal Courthouse was not Indian Country, they had no jurisdiction to be at the Tribal Courthouse except when invited by the Sheriff of Cherokee County, Oklahoma. In a recent hearing before U.S. District Court Judge Brett addressing this situation, Judge Brett scoffed at this theory when it was offered to him by Chief Joe Byrd’s lawyers,” said Shipley.

Judge Brett has now transferred the federal case for abuse of civil rights arising out of the BIA’s actions and the actions of various state and local police officers in the confrontations at the Tribal Courthouse in Tahlequah on June 20th and August 13th, 1997 to Judge Burrage in the U.S. District Court for the Eastern District in Muskogee for a decision. The Tribal Court’s decision on Indian Country will affect the pending federal court cases as well as state criminal charge against Chad Smith regarding his alleged resisting arrest by a BIA officer and Cherokee County Deputy Sheriffs at the June 20th confrontation at the Tribal Courthouse. On Monday of this week the U.S. Supreme Court refused to overrule a 1997 opinion by the U.S. Court of Appeals for the Tenth Circuit which held that a Navajo court should have the first opportunity to interpret its own jurisdictional limitations before a federal court could review the same issue (Kerr-McGee Corporation vs. Farley, decided by the Tenth Circuit on June 25, 1997.)

“The only exceptions which the Tenth Circuit Court of Appeals spoke of in the Kerr-McGee case say that, unless a tribal court’s jurisdiction over a matter is motivated by a “desire to harass or is conducted in bad faith” or is otherwise “patently violative of express jurisdictional prohibitions”, the general rules of exhaustion of tribal court remedies being required before federal court review is upheld,” said Shipley. “The Cherokee people are fortunate to have the highly competent and independent judiciary that they do since it has been the sole institution of the Cherokee government which has consistently followed it statutory and constitutionally obligations in spite of the political pressures. The Native American community is well aware the there is no tribe on this continent which has any more highly developed Indian legal system tan does the Cherokee Nation. For those who suggest that the JAT acts in bad faith or to further a political agenda rather than following their good faith interpretation of the law, I direct them to the decision by the JAT during the 1995 elections for Cherokee Chief wherein the JAT, in a ruling which disappointed many Cherokee, disqualified the front runner in the initial elections for Chief and essentially handed the election to Joe Byrd. These guys (Justices of the Judicial Appeals Tribunal) don’t play favorites when it comes to their judicial responsibilities,” said Shipley.

“I have been asked by some tribal members if this ruling by the JAT would have any effect on the outlaw court which Chief Joe Byrd runs in his back room at the Tribal Complex,” said Shipley, “My response is that, at the present time, since today’s ruling apparently cover the Tribal Complex by analogy, and since the BIA still has sole tribal law enforcement authority in Indian Country in the Cherokee Nation, they are legally bound to execute a court order by the JAT. Therefore if the JAT were to issue an order to the BIA to go to the Tribal Complex and recover all the rogue District Curt files, equipment, robes, etc., and return them to the Tribal Courthouse, they are legally required to do so. If the BIA fails or refuses then they are duty bound to stop anyone from interfering with a bailiff appointed by the JAT to carry out its order. As a citizen, I hope that happens since the American public and the Cherokee people need to see whether or not the BIA will continue to Support Chief Byrd’s unlawful actions. It seems to me the BIA is only inclined to follow the law when they cannot avoid pubic attention. Maybe we are at that point now.”

The 16 page Opinion issued today by the JAT specifically reference an affidavit by Dean Rennard Strickland dated December 8, 1997 which recites Dean Strickland’s expert opinion that the Cherokee Nation Courthouse is Indian Country based upon his “review of the historical status, legal title, applicable statutes, evidence of federal preemption, and previous actions of the Cherokee Nation, the State of Oklahoma, Cherokee County and the Bureau of Indian Affairs...”

Dean Strickland is recognized as the foremost authority on Cherokee Nation law in America. The JAT opinion was authored by Justice Dwight W. Birdwell.

If you have any questions, please contact Justice Dwight Birdwell at 405-236-4675.

AFFIDAVIT
Eugene, Oregon
December 8, 1997

The following statement is made under penalty of perjury by Rennard Strickland

1. My name is Rennard Strickland, I am currently Dean and Phillip H. Knight Professor Law in the School of Law of the University of Oregon. Attached hereto is my vita.

2. I have taught American Indian Law, Indian Land Titles and Indian Policy for twenty five years. I served as editor-in-chief for the third edition of Felix Cohen’s “Handbook of Federal Indian Law.”

3. My primary focus as a student, teacher and researcher has been the legal, cultural and political history of the Cherokee Nation. I am the author of Fire and the Spirits” Cherokee Law from Clan to Court (University of Oklahoma Press) which details the evolution of Cherokee legal experiences. I have been involved in several federal court cases as an expert witness.

4. While I was Director of the American Indian Law and Policy Center at the University of Oklahoma, I delivered the dedicatory address on the occasion of the official return of the Cherokee National Courthouse to the Cherokee Nation. The federal, state, county and tribal officials in attendance are acknowledged in my address which attached hereto. As I indicated in this published address, the Cherokee Nation Courthouse is an eminent symbol for the Cherokee Nation and recognized as a center of Indian tribal activity by both the Cherokee and non-Cherokee communities.

5. From my review of the historical status, legal title, applicable statutes, evidence of federal preemption, and previous actions of the Cherokee nation, the State of Oklahoma, Cherokee County and the Bureau of Indian Affairs, and the citizens of the Cherokee Nation, it is my expert opinion that the Cherokee Nation Courthouse is Indian Country in which the Cherokee Nation has Jurisdiction.

6. The foregoing is true in my opinion to the best of my knowledge and belief under penalty of perjury.

Rennard Strickland
2993 Chandler
Eugene, OR 97403

EXHIBIT (F)