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Cherokee Press Association
Thursday, January, 29 1998
Copyright © 1998 CPA
All Rights Reserved

IN THE JUDICIAL APPEALS TRIBUNAL
OF THE CHEROKEE NATION

BRENT CRAWFORD,

Plaintiff,

vs.               Case No. JAT- 97-36- B

DIANE BARKER HARROLD, IN HER
INDIVIDUAL AND OFFICIAL CAPACITY,
DISTRICT ATTORNEY OF CHEROKEE COUNTY;
NORMAN FISHER, IN HIS INDIVIDUAL
AND OFFICIAL CAPACITY, CITY OF
TAHLEQUAH POLICE DEPARTMENT;
DELANA GOSS, IN HER INDIVIDUAL
AND OFFICIAL CAPACITY, SHERIFF OF
CHEROKEE COUNTY, STATE OF OKLAHOMA;
BOARD OF COUNTY COMMISSIONERS,
CHEROKEE COUNTY; ADA DEER, UN-
DERSECRETARY FOR INDIAN AFFAIRS,
DEPARTMENT OF INTERIOR; JIM
FIELDS, MUSKOGEE AREA DIRECTOR
OF THE BUREAU OF INDIAN AFFAIRS;
AND JOE BYRD, PRINCIPAL CHIEF
OF THE CHEROKEE NATION,

Defendants.

ORDER GRANTING PARTIAL SUMMARY JUDGMENT

FOR THE PLAINTIFF:
Chad Smith
P.O. Box 9192
Tulsa, OK 74157-0192

FOR THE DEFENDANTS:
Betty Outhier Williams
P.O. Box 87
Muskogee, OK 74402

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

John W. Raley, Jr.
U.S. Attorney, E.D.O.
1200 W. Okmulgee
Muskogee, OK 74401

Chris Collins
Gayla I. Jones
429 N.E. 50th, 2nd Fl.
Oklahoma City, OK 73105-1815

Charles Babst
Department of Interior
7906 E. 33rd St.
Tulsa, OK 74145

Stephen C. Lewis
Peter Bernhardt
U.S. Attorney, N.D.O.
333 W. 4th St., Sta. 3460
Tulsa, OK 74103

Principal Chief Joe Byrd
Cherokee Nation
P.O. Box 948
Tahlequah, OK 74465

OPINION BY:
Justice Dwight W. Birdwell, on briefs and
other material submitted to the Court

RELEASED:
January 27, 1998

PROCEDURAL BACKGROUND

Pursuant to a Motion for Partial Summary Judgment filed on September 3, 1997, Plaintiff seeks a judgment from this Court holding that the Cherokee Nation Courthouse and its surrounding grounds are “Indian Country.” Only Defendant Joe Byrd, Principal Chief of the Cherokee Nation, has failed to submit an objection to the Plaintiff’s Motion. Defendant Byrd was properly served with regard to this action and the Plaintiff’s Motion for Summary Judgment pursuant to 20 CNC App. Rule 37(A), and, accordingly, this Court deems Plaintiff’s Motion confessed as to that Defendant. See, Local Rule 7.1 for the Eastern, Northern, and Western Districts of Oklahoma. FACTUAL BACKGROUND

The Cherokee Nation is recognized by the federal government as a dependent Indian Nation with the right of self-determination and the authority to govern the affairs of the Cherokee Nation and the Cherokee people. See, 61 Fed. Reg. 58211 (Nov. 13, 1996). The fundamental principle of federal Indian law is that Indian 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, 1005 (8th Cir. 1976). The Cherokee Nation possesses “those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of (its) dependent status.” United States v. Wheeler, 435 U.S. 313, 322 (1978).

Pursuant to the Indian Removal Act of 1834 and subsequent treaties, in 1838 and 1846 the U.S. Government issued a patent granting in fee to the Cherokee Nation a large portion of that area now known as Eastern Oklahoma:

           The United States have given and granted and by these presents do give and grant unto said Cherokee Nation two tract of land so surveyed and herein before described...to have and to hold the same... to the Cherokee Nation forever... (and) That the land hereby granted shall revert to the United States if the said Cherokee Nation becomes extinct and abandons same.

In 1909, the United States Supreme Court deemed all such property in which Indian title had not been extinguished to be “Indian Country.” United States v. Celesting, 215 U.S. 278, 30 S.Ct. 93, 94 (1909). The federal courts have continually recognized the boundaries set forth in the patents as the jurisdictional boundaries of the Cherokee Nation. UKB v. Secretary, Case No. 90 C-608-B (N.D. Okla. 1993).

The Cherokee Nation Courthouse, formerly known as the “Old Cherokee Capitol Building,” was built by the Cherokee Nation in 1847 on a portion of that property transferred to the Cherokee Nation.* It is the Cherokee nation Courthouse and its adjoining grounds which are the subject matter of this motion.

*(Described in particular as Block 75 in the City of Tahlequah, Oklahoma, according to the official plat thereof.)

In 1913, the Cherokee Nation, with permission from the Bureau of Indian Affairs, conveyed certain portions of the patented property, including that portion upon which the Cherokee Nation Courthouse stands, to Cherokee County. During the County’s term of ownership that building and it grounds remained an important historic and cultural symbol for the Cherokee Nation.

In 1978, Cherokee County agreed, in exchange for the Cherokee Nations’ $910,000 contribution for the development of a City-County Complex, to transfer the property upon which the Cherokee Nation Courthouse, the Cherokee Nation Supreme Court, and the Cherokee National Jail were located back to the Cherokee Nation. The $910,000 contribution was derived from funds provided to the Cherokee Nation by the federal government. This transfer was authorized by the District Court in and for Cherokee County, State of Oklahoma, and was characterized by that court as coming “within the purview of Title 19, Oklahoma Statutes Paragraph 349, where by 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 that such a conveyance to the Cherokee Nation of Oklahoma, is in effect a conveyance to the United States of America.” City of Tahlequah, et al, v Board of County Commissioners of Cherokee County. Case No. C-78-327, Cherokee County District Court, State of Oklahoma. A warranty deed effectuating that court’s order was subsequently filed of record.

The Cherokee Nation Courthouse was dedicated to its new role in 1991, but at all times since its original construction in 1847, including the term of ownership by Cherokee County, the building and its surround grounds have been regarded as an important historical and cultural symbol of the Cherokee Nation. Article XVII of the Cherokee Nation Constitution of 1975 provides that the City of Tahlequah is the seat of the government of the Cherokee Nation. The only Cherokee Nation-owned building located within the city limits of the City of Tahlequah which functions as a seat of the Cherokee Nation government is the Cherokee Nation Courthouse. With the exception of 1997, when an unjustified fear of conflicts prevented it, every annual State of the Nation address since 1954 delivered by the Principal Chief of the Cherokee Nation has been delivered at the Cherokee Nation Courthouse.

Currently, the Cherokee Nation Courthouse houses the offices of the three Justices of the Judicial Appeals Tribunal, the highest or supreme court of the Cherokee Nation, the official offices of the legitimate Cherokee Nation District Court and the Cherokee Nation Court Clerk. All of the staff are citizens of the Cherokee Nation. The exclusive authority for the physical operation, supervision and control of the Cherokee Nation Courthouse is held by the Judicial Appeals Tribunal pursuant to Cherokee Nation statute, 20 CCA Section 40.

At no time have ad valorem taxes been paid on the Cherokee Nation Courthouse by the Cherokee Nation and at not no time have ad valorem or personal property taxes been assessed against the Cherokee Nation by the Cherokee County Assessor’s Office or the State of Oklahoma. Neither the State of Oklahoma nor nay of its political subdivisions provide any funding or services to the Cherokee Nation Courthouse or the grounds. The City of Tahlequah and the Cherokee County Sheriff’s offices have, since 1991, recognized the criminal and civil jurisdiction of the Cherokee Nation over criminal acts occurring at the Cherokee Nation Courthouse and its grounds.

During the Cherokee Nation’s term of ownership of the Cherokee Nation Courthouse, no state, county or city funds have been used for it maintenance and upkeep. Tribal or federal funds have been used to exclusively maintain the Cherokee Nation Courthouse, to pay the salaries of court personnel, and to support the functions of the judiciary. As of the fiscal year 1997, the federal government has granted the Cherokee Nation $781,275.00 to re-establish and operate its judicial court system at the Cherokee Nation Courthouse.

LEGAL ANALYSIS
THE CHEROKEE NATION COURTHOUSE AND ITS GROUNDS ARE INDIAN COUNTRY.

The Cherokee Nation Courthouse and its surrounding grounds are without a doubt Indian Country as that term is defined by federal statute, case law, and history.

           The Cherokee Nation Courthouse Is Within the Limits of Indian Country as set forth Under 18 U.S.C. Paragraph 1151(a).

18 U.S.C. Paragraph 1151(a) defines Indian Country as “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including right-of way running through the reservation...” The term “Indian Country” has come to describe “federally protected Indian tribal lands” meaning those lands which Congress has set apart for tribal and federal jurisdiction. Indian Country, U.S.A., Inc. vs. Oklahoma Tax Commission, 829 F. 2d 967, 973 (10th Circ. 1987). Once the Congress has set lands apart as Indian Country, they remain so until Congress divests such lands of that character. Solem vs. Bartlett, 465 U.S. 463, 470, 104 S. Ct. 1161 (1984). “Thus for purposes of defining Indian Country, the term simply refers to those lands which Congress intended to reserve for a tribe and over which Congress intended primary jurisdiction to rest in the federal and tribal government.” Indian Country, U.S.A., supra, at 973. A Formal designation of Indian land as a “reservation” is not required for that land to have Indian Country status. United States v. McGowan, 302 U.S. 535, 538-39 (1938). Furthermore, informal reservations may exist within the Five Civilized Tribes territory, of which the Cherokee Nation is a member. Oklahoma Tax Commission vs. Chickasaw Nation, 115 S. Ct. 2214 (1995)*

*(It is also important to note that the term “Indian reservation” under the Internal Revenue Code includes the more expansive definition. “Reservation includes Indian reservations, public domain Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporation, and village corporation...” 25 U.S.C. 1452 (d); and “For purposes of this chapter, except as may be specifically provided otherwise, the term -- (10) “reservation” means Indian Country as defined in sections 1151 of title 18 and any lands, covered by such section, title which is ether held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to restriction by the United States against alienation.” 25 U.S.C. Paragraph 1903 (10).

The original boundaries of the Cherokee Nation memorialized in the Patent of 1838 constitute the reservation boundaries of the Cherokee Nation pursuant to Indian Country, U.S.A., supra, at 974. The Cherokee Nation’s jurisdictional territory has never been disestablished by Congress. See, United States vs. Wheeler, supra, at 322. When Congress created Oklahoma Territory, the lands of the Five Civilized Tribes, including those of the Cherokee, remained Indian Territory and subject to federal and tribal governance, Jefferson vs. Fink, 247 U.S. 759, 764 (1985). The Cherokee Nation Courthouse property was reacquired by the Cherokee Nation in 1978 through the use of funds provided by the federal government with the intent that the Cherokee Nation Courthouse be used exclusively for the Cherokee Nation. The fact that title to this property was transferred in fee to the Cherokee Nation does not deem that property to be outside the area historically and legally defined as a”reservation” under Section 1151 (a) and the Cherokee Nation Courthouse constitutes Indian Country under that provision. Indian Country U.S.A., at 975.

           The Cherokee Nation Courthouse Is Indian Country Under 18 U.S.C. Paragraph 1151(b).

18 U.S.C. Paragraph 1151(b) defines Indian Country as “all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state,... “Defendants have improperly attempted to limit this definition by imposing the additional limitations articulated in 18 U.S.C. Paragraphs 1154 and 1156, both of which refer to the dispensing of intoxicants and neither of which apply in this instance.*

*(The Court notes that 18 U.S.C. Paragraph 1151 expressly acknowledges that Sections 1154 and 1156 provide definitions which provided in Section 1154 and 1156 of this title, the term “Indian Country,” as used in this chapter, means...”)

Applying the process and standard set forth in United States vs. Adair, 111 F. 3d 770 (10th Cir. 1997), regarding the application of Section 1151(b), the Cherokee Nation Courthouse falls squarely within the Tenth Circuit’s definition of Indian Country.

           The Community Within Which the Cherokee Nation Courthouse
           Rests is an “Indian Community.”

Despite a physical three and one-half mile separation from the Keeler Complex, where the legislative and executive bodies of the Cherokee Nation government function, the Cherokee Nation Courthouse is equally an integral a part of the Cherokee Nation community, as in the Complex. The Cherokee Nation Courthouse rests within the jurisdictional territory of the Cherokee Nation, whose governmental seat is designated as the City of Tahlequah. The City of Tahlequah is the county seat for Cherokee County. The “community” to be evaluated through the Adair analysis must necessarily include those areas in and around the Cherokee Nation’s government seat of the City of Tahlequah were the various branches of the tribal government reside or operate. When viewed from this perspective it can not be denied that an area which encompasses the offices of the Cherokee Nation’s executive, legislative and judicial branches, Cherokee Nation schools, Cherokee Nation shops, warehouses, a convenience store, Cherokee Nation social services programs and a source of employment for some 500 Cherokee citizens constitutes an “Indian community.” and that the Cherokee Nation Courthouse and its grounds, owned, in effect, by the United States for the Cherokee Nation*, constitute “Indian Country” over which the Cherokee Nation and the federal government, to the exclusion of the State of Oklahoma, have jurisdiction.

*See City of Tahlequah, et al. vs. Board of County Commissioners of Cherokee County, Case No. C-78-327, Cherokee County District Court, State of Oklahoma.

Although not directly contiguous to the Keeler Complex, the Cherokee Nation Courthouse and grounds are clearly an integral part of the Cherokee Nation’s governmental complex and are part of that area which exhibits the “cohesiveness... manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality” necessary for a finding of “Indian community.” United States vs. Morgan, 614 F. 2d 166, 170 (8th Cir. 1980).

Rennard Strickland, unparalleled scholar on Cherokee law, states correctly that “the Cherokee Nation Courthouse is an eminent symbol of the Cherokee Nation and recognized as a center of Indian tribal activity by both the Cherokee and non-Cherokee communities.”

           The Community Within Which the Cherokee Nation Courthouse
           Rests is a “Dependent Indian Community.”

Having satisfied the threshold issue as to the status of the community which is the subject matter of the “Indian Country” determination, the Adair court requires that the characteristics of the community be subjected to a four-point analysis to determine whether or not the community is also “dependent.”

           1. Whether the United States Retained Title to
              The Indian Land and Has Authority to Regulate
              And Protect the Land.

The federal government has exercised its authority to regulate, protect and promote the interests of the Cherokee Nation by providing the funds to reacquire the Cherokee Nation Courthouse through an exchange of money with the City of Tahlequah and Cherokee County. As was discussed previously, the federal government retains the authority to restrict the transfer of tribal property pursuant to 25 U.S.C. Paragraph 177, and the Cherokee Nation Courthouse property is similarly restricted and under the reversionary authority of the federal government. Thus, the Cherokee Nation could not sell the Cherokee Nation Courthouse without the consent of the federal government. Furthermore, pursuant to the District Court’s order of 1978, the property upon which the Cherokee Nation Courthouse is located was, in effect, “conveyed to the United States of America.” City of Tahlequah, et al. vs. Board of County Commissioners of Cherokee County, Case No. C-78-327, Cherokee County District Court, State of Oklahoma.

           2. The Nature of the Area, and the Relationship
              Of the Inhabitants to Indian Tribes and to the
              Federal Government.

The Judicial Branch of the Cherokee Nation exercises its constitutional power in the Cherokee Nation Courthouse. In 1990, the Cherokee Nation entered into the Self Governance Compact with the United States for operation of all Bureau of Indian Affairs operation previously conducted at the Tahlequah Agency. The funding under this compact for the operation of the Cherokee Nation Court system alone is in excess of many thousands of dollars.

The citizens of the Cherokee Nation, the State of Oklahoma, and the federal government deal with the Cherokee Nation Courthouse on the belief it is Indian Country. Law enforcement officers of Cherokee County, the State of Oklahoma and the federal government have treated the Cherokee Nation Courthouse as Indian Country. See Affidavit of Rennard Strickland. Prior to this case, all criminal acts occurring on the Cherokee Nation Courthouse grounds, such as intoxication offenses allegedly committed by Indians, have been prosecuted in tribal court. Tribal members seeking redress of grievance against the Tribe or other Tribal members file their cases at the Cherokee Nation Courthouse. Public discussions and celebrations of Tribal holidays are conducted at the Cherokee Nation Courthouse and on its surrounding grounds. All civil regulation of the Cherokee Nation Courthouse is under the jurisdiction of the Cherokee Nation.

The Cherokee Nation Courthouse is treated as an integral part of the Cherokee Nation government and society and has been accorded that status by the federal, state, county and city governments.

           3. Whether There is an Element of Cohesiveness
              Shown by the Economic Pursuits and Common
              Interest of the Locality.

The Cherokee Nation Courthouse is the seat of the tribal judicial system. There can be no greater identification of the Cherokee Nation or exercise of its sovereignty than the functioning of its court system. The apparent commonalty of interest of the Cherokee Nation Courthouse with the Cherokee Nation’s governmental community is its essential government purpose as the court of the Cherokee Nation. The first public building located in now what is the State of Oklahoma was the Cherokee Nation Supreme Court building, a building constructed in 1844. The Cherokee Nation Courthouse is located across the street from that original building, and lies within a few miles of the Cherokee governmental complex which houses the other two branches of the Cherokee Nation constitutional government. The element of cohesiveness is demonstrated by the history of the Cherokee Nation and its court, the Cherokee Nation Courthouse and its function, and the acknowledgment by the local community that the Cherokee Nation Courthouse and its function as the source of justice within the Cherokee Nation judicial system lie within Indian Country.

           4. Whether the Lands Were Set Apart for the Use,
              Occupancy and Protection of Dependent Indian
              Peoples.

From the foregoing discussion, it cannot be disputed that the Cherokee Nation Courthouse, its grounds, and the nearby Cherokee Nation governmental complex were set aside and continued to be maintained for the use, occupancy, and protection of the Cherokee Nation and its citizens. First transferred by the United States to the Nation through the 1838 patent, then returned to the Nation in 1978 by federal funds, the Cherokee Nation Courthouse has for the past 150 years been the traditional seat of government for the Cherokee Nation. The Cherokee nation Courthouse fulfills the role of one of the three branches of the Cherokee Nation’s constitutional government, serving the citizens of the Cherokee Nation with a judicial mechanism for the interpretation and application of Cherokee Nation law.

If there is a single present-day building which symbolizes the Cherokee people, the Cherokee Nation, and the Cherokee government, it is the historic Cherokee Nation Courthouse. On October 12, 1991, representatives from all branches of the Oklahoma State government, representatives from the Bureau of Indian Affairs, and representatives from county and city government attended the rededication of the Cherokee Nation Capitol Building as the Cherokee Nation Courthouse. It is impossible to conceive that now these very same governmental bodies attempt to deny that the building does not provide the most important physical representation of that which is the Cherokee Nation. Similarly these entities cannot now deny that the Cherokee Nation does not have jurisdiction over events and matters which may impact this building and its grounds. Since 1991, the Cherokee Nation has exercised criminal jurisdiction with regard to that Cherokee Nation Courthouse to the exclusion of the city, county and state. Those entities cannot now deny the Nation’s authority to do so, nor can they deny that the Cherokee nation Courthouse is Indian Country. Any application of the Adair analysis which results in a different conclusion would be wholly inconsistent with the substantive nature of the Cherokee Nation Courthouse’s relationship with the Cherokee Nation, as well as its citizens, and its role as part of the Cherokee Nation’s governmental community in Tahlequah.

The original boundaries of the Cherokee Nation memorialized in the Patent of 1838 constitute the reservation boundaries of the Cherokee Nation pursuant to Indian Country, U.S.A., supra. That jurisdictional territory of the Cherokee Nation has never been disestablished. The Cherokee Nation Courthouse, within the boundaries of the Cherokee Nation, was reacquired by federal funds for the exclusive use of the Cherokee Nation. As such, the Cherokee Nation Courthouse is Indian Country.

For the reasons reflected above, under both historical and contemporary definition, the Cherokee Nation Courthouse has retained its status as Indian Country and land reserved under the jurisdiction of the federal government and the Cherokee Nation.

THEREFORE, THIS COURT DETERMINES that the Cherokee Nation Courthouse and its surrounding grounds, located in Tahlequah, Cherokee County, State of Oklahoma, has been and shall continue to be “Indian Country” as that term is defined under federal statute and law. ACCORDINGLY, THE PLAINTIFF’S SEPTEMBER 3, 1997, MOTION FOR PARTIAL SUMMARY Judgment IS HEREBY GRANTED, insofar as determining the legal status of the Cherokee Nation Courthouse. To the extent motions to dismiss are pending which address issues other than the single issue raised by Plaintiff, such motions will be decided on or before March 20, 1998.

IT IS SO ORDERED on this 27th day January, 1998.

DWIGHT W. BIRDWELL
JUSTICE OF THE CHEROKEE NATION

CHIEF JUSTICE KEEN CONCURS IN THE DECISION.

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