5 Cherokees sue courts, DAs, 30 municipalities

  • 5 Cherokees sue courts, DAs, 30 municipalities

OKLAHOMA CITY – Five Cherokees who allege they were unlawfully prosecuted for unspecified traffic offenses or misdemeanor crimes that occurred within the boundaries of the Cherokee Reservation have sued six state district courts, four district attorneys, court clerks of seven counties, and 30 municipalities in eastern Oklahoma.

The lawsuit was filed in Oklahoma’s Northern District federal court at Tulsa by Tayleur Raye Pickup, Crystal Lee Leach, and Shyanne Nicole Sixkiller, all members of the Cherokee Nation, along with Chanda Lynelle Butcher and Lindsey Reanna Butcher, both members of the United Keetoowah Band of Cherokee Indians. All five plaintiffs are residents of Mayes County.

They have asked Chief Judge John Dowdell to:

• certify their lawsuit as a class action because there are “numerous ... other persons, yet to be ascertained,” whose circumstances are similar to those of the five plaintiffs;

• declare that the Cherokee Reservation, which encompasses portions or all of 14 counties in eastern Oklahoma, has never been dissolved by Congress;

• void any conviction of any Native American prosecuted by the state or a municipality for any traffic offense or misdemeanor crime that occurred within the reservation;

• and compel the State of Oklahoma and “any of its agents or political subdivisions” to refund all fines, fees and assessments” paid by Native Americans in such cases, in an amount believed to total more than $75,000.

The five plaintiffs seek “to disgorge the State and its political subdivisions of their ill-gotten gains and to recover the monies ... that were paid as fines and costs and levied without jurisdiction to do so.”

The defendants include the district courts, district attorneys and court clerks of Nowata, Washington, Delaware, Craig and Mayes counties, the court clerk of Tulsa County, and numerous municipalities in those counties, including Claremore, Grove, Bartlesville, Nowata, Pryor, Oologah, Vinita, Choteau and Chelsea.

The lawsuit was filed less than two weeks after the U.S. Supreme Court ruled July 9 in McGirt v. Oklahoma that Congress has never disestablished the Muscogee (Creek) Nation reservation. “[A]pplying the facts relevant to the Cherokee Nation, it is easily concluded that the Cherokee Reservation has also never been disestablished by Congress and remains Indian Country today,” Tulsa attorneys Mark Lyons and John M. Dunn wrote.

Consequently, they assert, neither the State of Oklahoma nor any of its political subdivisions has the authority to “criminally charge and prosecute members of a federally recognized American Indian tribe for crimes committed on the Cherokee Reservation.”

Tribal members “are guaranteed the right by treaty and federal law to appear only before a Tribal court or in federal court,” the plaintiffs contend. “It has been long recognized that the state government has no jurisdiction over crimes committed by a Tribal member on a reservation.”

The court clerks claim that the 11th Amendment to the U.S. Constitution accords them immunity from being sued in their official capacity as an arm of the state. The 11th Amendment restricts the ability of individuals to bring suit against states in federal court.

“A court clerk is locally elected,” Dunn and Lyons responded. “A court clerk is an elected county official only for the county that person serves... They are like Sheriffs, who it is known can be sued...”

Besides being elected locally, the budget of the court clerk “is set and/or paid by the County Commissioners of their county and partly by the State court fund; and they have autonomy in how to run their offices... No one in State government governs their daily activities.”

Attorneys Andrew Lester and Anthony J. Ferate of Oklahoma City argue that the Curtis Act of 1898, a congressional amendment to the Dawes Act, “provides municipalities with authority over “all inhabitants of such cities and towns, without regard to race,” and provides individuals, including tribal members, “shall be subject to all laws and ordinances of such city or town governments.”

Thus, the municipalities sued by the five plaintiffs “were merely exercising their congressionally created grant of authority,” the attorneys contend.

Also, under state law municipal courts have the authority to prosecute only violations of municipal ordinances.

Ferate and Lester maintain that the plaintiffs “cannot show that there was no reasonable delay in asserting their claims.” They note that the concept of “laches” is a defense that “prevents the advancement of claims after an ‘inexcusable delay’ for an ‘unreasonable and unexplained length of time’.”

“At any point during the prosecution for their offenses, Plaintiffs could have asserted that the prosecuting municipality lacked jurisdiction,” the OKC lawyers contend. “Plaintiffs chose not to do so...”

Furthermore, the plaintiffs’ claims are undermined by “the doctrine of unclean hands” because “the conduct” of which they complain “is criminal in nature.”

The “entire basis” of the plaintiffs’ claims involves them “having committed criminal conduct,” the defendants’ lawyers wrote. The five are “attempting to disgorge fees they allege they paid to Municipalities over an undescribed but apparently indefinite period of time.”

In addition, the plaintiffs “never actually allege any such conviction or payment of fine,” Lester and Ferate observed.

The City of Owasso urged the court to dismiss the lawsuit, pointing out that it was filed “just seven working days” after the Supreme Court issued its McGirt ruling. They plaintiffs were in a “rush” to apply McGirt “as the means to convert their traffic citations into winning lottery tickets, to be redeemed by this Court...”

Owasso noted that McGirt applied to “one tribe and one law: the Muscogee (Creek) Nation and the Major Crimes Act.” That Act covers murder, manslaughter, kidnapping, maiming, arson, burglary, felony child abuse and the like. “It does not apply to traffic tickets in municipalities...”

Dunn and Lyons criticized Owasso’s “pejorative and condescending reference to the Plaintiffs’ assertion of the right to Indian sovereignty as ‘lottery tickets’...” 

McGirt “stands for the more fundamental principle” that tribal reservation boundaries established by treaty and approved by Congress “deprives the state of criminal law jurisdiction over a member of an Indian tribe in ‘Indian Country’,” Lyons and Dunn wrote. “The degree and nature of the crime is immaterial. It is the absence of any jurisdiction that is important.”

In McGirt, the Supreme Court declared that the State of Oklahoma, its cities and towns and other political subdivisions “have ignored Native Americans’ sovereignty rights for over 100 years,” Lyons and Dunn wrote.

For more than a century, the state and its political subdivisions “have investigated, detained, charged, arrested, imprisoned, fined and otherwise taken large sums of money from Native American people without the authority of law.”

The City of Owasso and “virtually every other municipality” that was sued “has part-time municipal judges,” Dunn and Lyons wrote. “It is doubted (though not known for a fact) these judges are federal Indian law experts. That is a highly specialized area.”

At the very least, the plaintiffs declare, the defendants “have been unjustly enriched through their unlawful actions.”

The lawsuit was still pending in Tulsa’s federal district court as of December 1.