Cherokee Nation Registrar v. Nash, (2011)

• Decision Date: 22 August 2011
• Docket Number: SC-2011-02
• Parties: CHEROKEE NATION REGISTRAR, DEFENDANT/APPELLANTS, v. RAYMOND NASH, ET AL., PLAINTIFF/APPELLEES.
• Court: Judicial App Tribunal Court Cherokee Nation

CHEROKEE NATIONREGISTRAR, DEFENDANT/APPELLANTS, v. RAYMOND NASH, ET AL., PLAINTIFF/APPELLEES.

No. SC-2011-02

Supreme Court of the Cherokee Nation

August 22, 2011

APPEAL FROM THE DISTRICT COURT OF THE CHEROKEE NATION TAHLEQUAH, OKLAHOMA DISTRICT COURT CONSOLODATEDCASE NOS CV-07-40, CV-07-41, CV-07-42, CV-07-43, CV-07-44, CV-07-45CV-07-46, CV-07-47, CV-07-48, CV-07-49, CV-07-50, CV-07-53CV-07-56, CV-07-65, CV-07-66, CV-07-72, CV-07-78, CV-07-85CV-07-86, CV-07-99, CV-07-100, CV-07-112 ANDCV-07-116HONORABLE JOHN CRIPPS, TRIAL JUDGE

Before: Darell R. Matlock, Jr., Chief Justice, Darrell Dowty, Justice, James G. Wilcoxen, Justice, Kyle B. Haskins, Justice, Troy Wayne Poteete, Justice

Darell R. Matlock, Jr., Chief JusticeChief Justice

Standard of Review

The Court reviewed "denovo" the issues of (1) of the right of the Cherokee people to define tribal citizenship and, (2) the interpretation of the language of the 2007amendment to the Cherokee Nation Constitution which sets forth the requirements of citizenship in the Cherokee Nation.Cherokee Nation v. O'Leary SC-2006-13 & 14.

OPINION

ANATOMY OF LITIGATION

On April 17, 2007, the Cherokee Nation Registrar, pursuant to Article IV of the Cherokee Nation Constitution, filed the timely letters of the Cherokee Nation after the passage of the Constitutional Amendment on March 3, 2007, by the Cherokee people by special election.Those letters represent the appeals lodged with the Cherokee Nation District Court under the numbers set forth herein above.The Petitions allege that the action of the Registrar was, in effect, a retroactive application of the mandates of the Constitutional Amendment dated March 3, 2007; that the March 3, 2007 Constitutional Amendment is, in and of itself unconstitutional under the Cherokee Nation Constitution; that the Treaty of 1866 was a contract between the United States of America and the Cherokee Nation and the Treaty of 1866 created citizenship for the Cherokee Freedmen in the Cherokee Nation; that the Cherokee people are forever prohibited from amending their Constitution in a manner that excludes the Cherokee Freedmen's citizenship in the Cherokee Nation; and, that exclusion of the Cherokee Freedmen from citizenship in the Cherokee Nation violates federal law.The appellants identified in the Cherokee Nation District Court's Final Order dated January 14, 2011, shall hereinafter be referred to as "Appellant".

The Cherokee Nation District Court entered its order transferring "Appellees"cases to the Cherokee Nation Supreme Court under Supreme CourtCase No. SC-07-13.The Cherokee Nation Supreme Court after due consideration of all relevant facts and the law pertaining thereto remanded "Appellees"cases to the Cherokee Nation District Court for full adjudication of the cases on April 23, 2007.The Cherokee Nation District Court, after entertaining various pre-trial motions, entered a Scheduling Order on September 18, 2008, and the parties responded by filing Joint Stipulations on November 28, 2008.The parties stipulated that, among other things, "the election of March 3, 2007, was conducted in compliance with Cherokee Nation election laws and procedures"."Appellees" filed their Motion for Partial Summary Judgment, and Brief in Support, in favor of the Cherokee Freedmen on December 1, 2008."Appellant" filed its Motion for Summary Judgment and Brief in Support on December 23, 2008."Appellees" filed their Supplemental Arguments in Support on December 23, 2008."Appellees" filed their Supplemental Arguments in Support of the Motion for Summary Judgment on July 31, 2009.The District Court on July 17, 2009, entertained oral arguments by the parties and requested proposed findings of facts and conclusions of law."Appellees" filed their proposed Findings of Facts and Conclusions of Law on August 31, 2009, and "Appellants" filed its Proposed Findings of Facts and Conclusions of Law on September 3, 2009.The District Court on January 14, 2011, entered its Final Order determining that, "the Cherokee Nation Constitutional Amendment of March 3, 2007, by virtue of the treaty of 1866 and subsequent actions taken in furtherance thereof, are hereby determined to be void as a matter of law.""The Class Appellants to whom this Order extends are the original enrollees, or descendants of original enrollees, of the Dawes Commission Rolls designated Cherokee Freedmen or Cherokee Freedmen-minor children and shall have the rights as previously entitled prior to the passage of the aforesaid Constitutional Amendment."From the District Court Order this appeal has been lodged in this Court for review and relief.

Appeal Procedural Record

THE APPEAL TO THIS COURT was lodged on January 25, 2011.The parties timely filed their respective pleadings.The Appellant, pursuant to Rule 60 of the Cherokee Nation Supreme Court rules, timely filed a motion for extension of time to file its reply brief which in part was required by the belated service of the Appellees' Answer Brief.There was no objection to the extension of time granted by this Court as ordered on June 21, 2011.The Appellant filed it reply brief on July 1, 2011, and the appeal became ripe for decision.

Court's Findings

The Court makes the following findings in conjunction with its denovo review of the issues raised by the record and those taken by Judicial Notice:

1.The Amendment approved by the Cherokee People on March 3, 2007, provides: Notwithstanding any provisions of the Cherokee Nation Constitution approved on October 2, 1975, and the Cherokee Nation Constitution ratified by the people on July 26, 2003, upon passage of this Amendment, citizens of the Cherokee Nation shall be only those originally enrolled on, or descendants of those enrolled on, the Final Rolls of the Cherokee Nation, commonly referred to as the Dawes Rolls, for those listed as Cherokees by Blood, Delaware Cherokees pursuant to Article II of the Delaware Agreement dated the 8th day of May, 1867, and the Shawnee Cherokees pursuant to Article III of the Shawnee Agreement dated the 9th day of June, 1869.

2.The election of March 3, 2007, was conducted in compliance with Cherokee Nation election laws and procedures.

3.The proposed amendment was approved by a majority vote of the Cherokee people on March 3, 2007.

4."Appellant" interpreted the amendment language as applying the new criteria for citizenship to existing, enrolled citizens of the Cherokee Nation.

5."Appellant" notified "Appellee" Class of its determination of ineligibility for continued membership in March of 2007.

6."Appellees" Class was removed from the citizenship rolls of the Cherokee Nation, effective March 16, 2007, and was thereafter reinstated pursuant to the Cherokee Nation District Court Temporary Injunction Order dated May 14, 2007.

7."Appellees" Class during period of disenrollment was denied tribal services and rights as Cherokee citizens, except for a small number of critically ill people who continued to receive health services, paid for by tribal funds.

8.All unprocessed applications for citizenship in "Appellant's" possession received from "Appellees" Class members are being held, in abeyance, without further processing pending the decision of this Court.

9.There is no subject matter jurisdiction for the Cherokee Nation District Court, or this Court, to determine that the March 3, 2007, Amendment to the Cherokee Nation Constitution is unconstitutional.And, subject matter jurisdiction cannot be waived.

10.There are Cherokee Freedmen, who are also descendants of Cherokees listed on the Dawes Rolls as Cherokee by Blood, who are citizens of the Cherokee Nation and who are entitled to be citizens of the Cherokee Nation.

11.There is no subject matter jurisdiction for the Cherokee Nation District Court, or this Court, to determine that the March 3, 2007, Amendment to the Cherokee Nation is void.

12.The Cherokee Nation District Court's finding that the Treaty of 1866, between the United States of America and the Cherokee Nation, by its provisions guaranteed citizenship to the Cherokee Freedmen in the Cherokee Nation would, in effect, deprive "Appellees" standing in these proceedings and consequently necessitate that the proper party would be the United States of America.

Discussion

The Trial Court's Order entered on January 14, 2011, raises an issue of Cherokee Nation Constitutional import and one that does not appear in United Sates Federal Jurisprudence or State Jurisprudence.

Simply put, do the Cherokee Nation Courts, or does any Court, have the jurisdiction or power to order what the constituents of a sovereign can set forth in their organic documents.

The Cherokee Nation Constitution in Article XV Initiative Referendum and Amendments sets forth in Section 1"Notwithstanding the provisions of Article VI, the People of the Cherokee Nation reserve to themselves the power to propose laws and amendments to this Constitutionà"

The declaration of the Constitutional Amendment, enacted by the Cherokee people on March 3, 2007, as void is not within the District Court's power, as such has not been delegated by the Cherokee Nation Constitution.

The Cherokee Nation Constitution in Article VIII Judicial Section 6 only grants the District Court jurisdiction to resolve disputes under the Constitution.

This Court has previously held in Allen v. Cherokee Nation, JAT-04-09(March 7, 2006) that the Cherokee people do have the right to make citizenship determination (whether to exclude Freedmen and intermarried white descendants) for themselves.

The latest sovereign expression of the Cherokee people concerning the Freedmen is found in their amendment dated March 3, 2007, to the Cherokee Nation Constitution.

"Appellees"...