Amicus Curiae Brief — Oklahoma, Applicant v. Benjamin Robert Cole

Supreme Court briefMay 28, 2021

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No. 20A167

CAPITAL CASE

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF OKLAHOMA, Applicant,

-vsBENJAMIN ROBERT COLE, Respondent.

To the Honorable Neil M. Gorsuch,

Associate Justice of the United States Supreme Court and

Circuit Justice for the Tenth Circuit

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND AMICUS CURIAE BRIEF OF THE CHEROKEE NATION

SARA HILL

Attorney General

CHRISSI ROSS NIMMO

Deputy Attorney General

CHEROKEE NATION

Post Office Box 1533

Tahlequah, Oklahoma 74465-1533

Phone: (918) 458-6998

chrissi-nimmo@cherokee.org

FRANK S. HOLLEMAN, IV

Counsel of Record

DOUGLAS B. L. ENDRESON

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street, NW, Suite 600

Washington, DC 20005

Phone: (202) 682-0240

fholleman@sonosky.com

dendreson@sonosky.com

Attorneys for Amicus Curiae Cherokee Nation

May 28, 2021

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................................................................... ii

CHEROKEE NATION’S MOTION FOR LEAVE TO FILE AMICUS

CURIAE BRIEF ........................................................................................................... 1

BRIEF OF AMICUS CURIAE CHEROKEE NATION ........................................... 3

BACKGROUND ........................................................................................................... 4

REASONS FOR DENYING THE APPLICATION ................................................. 6

APPLICANT HAS NOT SHOWN THAT CERTIORARI IS

LIKELY TO BE GRANTED, OR A FAIR PROSPECT OF

REVERSAL, IN THIS CASE. ............................................................................. 7

II.

APPLICANT DOES NOT FACE IRREPARABLE HARM, AS

THE NATION’S EFFORTS TO PROTECT THE PUBLIC SHOW.

............................................................................................................................. 9

CONCLUSION ........................................................................................................... 13

TABLE OF AUTHORITIES

CASES

California v. Taylor,

353 U.S. 553 (1957) .................................................................................................. 8

City of Springfield, Mass. v. Kibbe,

480 U.S. 257 (1987) .................................................................................................. 8

Cole v. State,

2021 OK CR 10 ......................................................................................................... 2

Cole v. State,

No. PCD-2020-332 (Okla. Ct. Crim. App. May 29, 2020) ....................................... 4

Conkright v. Frommert,

556 U.S. 1401 (2009) ................................................................................................ 7

Hogner v. State,

2021 OK CR 4 ........................................................................................................... 2

Hollingsworth v. Perry,

558 U.S. 183 (2010) (per curiam) .......................................................................... 6-7

Kenyeres v. Ashcroft,

538 U.S. 1301 (2003) ................................................................................................ 7

McGirt v. Oklahoma,

140 S. Ct. 2452 (2020) ...................................................................................... 1, 4, 8

Nken v. Holder,

556 U.S. 418 (2009) .................................................................................................. 7

Oklahoma v. Bosse,

No. 20A161 (U.S. docketed April 26, 2021) ............................................. 3, 4, 6, 8, 9

Oklahoma v. Ryder,

No. 20A168 (U.S. docketed May 21, 2021) .............................................................. 8

Rostker v. Goldberg,

448 U.S. 1306 (1980) ...................................................................................................... 7

Ruckelshaus v. Monsanto Co.,

463 U.S. 1315 (1983) ...................................................................................................... 7

Sharp v. Murphy,

140 S. Ct. 2412 (2020) (per curiam) ..................................................................... 1, 4

Spears v. State,

2021 OK CR 7 ........................................................................................................... 2

State v. Cole,

No. CF-2002-597 (Okla. Dist. Ct. Rogers Cnty. Nov. 12, 2020) .............................. 5

Whalen v. Roe,

423 U.S. 1313 (1975) ................................................................................................ 7

Worcester v. Georgia,

31 U.S. (6 Pet.) 515 (1832) ....................................................................................... 2

STATUTES

General Crimes Act,

18 U.S.C. § 1152 .........................................................................................................1-2, 3

Indian Child Welfare Act,

25 U.S.C. §§ 1901-1963 ..................................................................................................12

RULES

Supreme Court Rule 22 ................................................................................................. 1

Supreme Court Rule 33.2 .............................................................................................. 3

CONSTITUTIONAL PROVISIONS

Okla. Const. art. VI, § 13 ............................................................................................... 8

OTHER AUTHORITIES

Curtis Killman, Here’s How Cherokee Tribal Courts Are Handling the

Surge in Cases Due to the McGirt Ruling, Tulsa World

(May 17, 2021) ......................................................................................................... 10

Houston Keene, Oklahoma Gov. Says Dangerous Criminals Walking

Free Thanks to ‘Horribly Wrong’ Supreme Court Ruling, FOXNews

(Apr. 7, 2021).............................................................................................................. 8

Oklahoma Attorney General Mike Hunter Announces He Will Resign,

KOCO (May 26, 2021 5:42 PM) ................................................................................. 8

TRIBAL AUTHORITIES AND INTER-GOVERNMENTAL AGREEMENTS

Intergovernmental Agreement Between State of Okla. & Cherokee

Nation Regarding Jurisdiction over Indian Children Within

Nation’s Reservation (Sept. 1, 2020) ....................................................................... 12

Office of the Att’y Gen, Cherokee Nation, Tribal Code ........................................... 9-10

Okla. Sec’y of State, Tribal Compacts and Agreements ............................................. 10

iii

CHEROKEE NATION’S MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF

Pursuant to Supreme Court Rule 22, the Cherokee Nation (“Nation”)

respectfully requests leave to file the attached amicus curiae brief, to oppose the State

of Oklahoma’s (“State”) motion for an order “granting or extending a stay of the

mandate of the Oklahoma Court of Criminal Appeals (‘OCCA’)” until the Court denies

the State’s anticipated petition for certiorari or rules on the merits of this case.

Good cause exists for granting the Nation’s motion for leave to file. The State’s

request for a stay affects the Nation’s sovereign interests because it affects the

administration of justice on the Cherokee Reservation and because the Nation

submits the OCCA’s ruling that is the subject of the State’s request is correct, and

the Nation is now implementing that decision. These fundamental interests provide

good cause for the Nation to participate as amicus curiae, as the Muscogee (Creek)

Nation did in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), and Sharp v. Murphy, 140

S. Ct. 2412 (2020) (per curiam).

The State has indicated that it will seek certiorari on one or both of two

grounds, each of which implicates the Nation’s exercise of sovereignty. First, the

State has said it may seek certiorari on the question of whether the existence of

Indian country is a jurisdictional question that can be waived in applications for postconviction relief in state court. Second, the State has said it may seek certiorari on

the question of whether the State has concurrent criminal jurisdiction over crimes

committed by non-Indians against Indians on the Cherokee Reservation,

notwithstanding the General Crimes Act, 18 U.S.C. § 1152 (“GCA”), which vests such

jurisdiction in the federal government alone. The jurisdictional consequences of the

existence of Indian country and the allocation of criminal jurisdiction on the Cherokee

Reservation have long been and remain questions of great legal and practical

importance to the Nation. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

Today, the Nation has a sovereign interest in the allocation of criminal jurisdiction

within its Reservation in Oklahoma, which arises from its treaties with the United

States pursuant to which it holds the Cherokee Reservation. The Nation also has a

sovereign responsibility to protect public safety on the Reservation and to see that

those who victimize Cherokee citizens are brought to justice in a forum which lawfully

exercises jurisdiction.

The importance of these questions and their resolution has been heightened by

the Nation’s inter-governmental work to implement the OCCA’s decisions that apply

this Court’s decision in McGirt to the Cherokee Nation and its Reservation. The

Nation is committed to implementing fully the OCCA’s ruling in this case and others,

which have upheld the continuing existence of the Cherokee Reservation by applying

the reasoning of McGirt. See Hogner v. State, 2021 OK CR 4; Spears v. State, 2021

OK CR 7; Cole v. State, 2021 OK CR 10 (State’s App. at 001-021). Delay in the

issuance of the mandate in this case is delay in its implementation. And that delay

makes the Nation’s work with other governments to reallocate jurisdiction more

difficult, as it leaves the rules by which that jurisdiction is to be allocated in limbo.

As a practical matter, negotiation and cooperation between the Nation and federal,

state, and local governments in the exercise of law enforcement authority require a

clear understanding of where jurisdiction lies.

Additionally, the State has put at issue, by incorporating by reference, its

request for stay in Oklahoma v. Bosse, No. 20A161 (U.S. docketed April 26, 2021), the

extent to which the federal, state, and tribal nations’ governments’ efforts to

implement McGirt impose irreparable harm on the State. The Nation has a critical

interest in this question too—as it implicates the Nation’s ongoing work to see that

justice is served on the Cherokee Reservation.

Pursuant to the Court’s Order of April 15, 2020, the Nation has submitted this

motion and the attached amicus curiae brief on 8½ by 11-inch paper, consistent with

the formatting for requests for stay under Supreme Court Rule 33.2. The Nation

requests leave to file a brief in compliance with that Order.

BRIEF OF AMICUS CURIAE CHEROKEE NATION

This case concerns the murder of a Cherokee child by her non-Indian father on

the Cherokee Reservation. The Nation grieves the loss of an innocent child and

shares the pain of her family. Justice must be done for the heinous act that caused

that immeasurable loss, but that can only be done under the rule of law. And in this

case the GCA, 18 U.S.C. § 1152, assigns the federal government exclusive jurisdiction

over crimes committed by non-Indians against Indians in “Indian country,” which

includes the Cherokee Reservation. Delivering justice under law is important in

every case, as it legitimizes the punishment of offenders found guilty. And the Nation

is engaged in continuing efforts to see that all criminals are brought to justice under

the rule of law set forth in the OCCA’s decisions, McGirt, and the long-settled rules

that allocate criminal jurisdiction in Indian country. The State’s stay request does

nothing to realize that goal.

In its request, the State purports to seek a stay for the same reasons it did so

in Bosse. App. to Stay Mandate of the Okla. Ct. of Crim. Appeals Pending Review on

Cert. (“Br.”) at 1. To that extent, the Cherokee Nation opposes the State’s request for

the same reasons that the Chickasaw Nation opposed the State’s request in Bosse,

see Br. of Amicus Curiae the Chickasaw Nation, Oklahoma v. Bosse, No. 20A161

(“Chickasaw Bosse Br.”). But the Cherokee Nation also submits that the stay should

be denied because it would hinder the Cherokee Nation’s efforts to implement the

rulings of the OCCA recognizing the existence of the Cherokee Reservation, and those

efforts are essential to the peace and protection of all persons living on or visiting the

Cherokee Reservation. For these reasons, the stay should be denied.

BACKGROUND

Benjamin Robert Cole (“Cole”), a non-Indian, was convicted in Oklahoma state

court of murdering his child, a Cherokee citizen. Cole was sentenced to death for his

crime. His direct appeal and subsequent requests for post-conviction relief in state

and federal court failed. On August 12, 2020, after this Court decided McGirt and

Murphy, Cole filed a successive petition for post-conviction relief with the Oklahoma

Court of Criminal Appeals (“OCCA”). 1 On August 24, 2020, the OCCA remanded to

1 The State references an earlier petition for post-conviction relief which Cole filed while McGirt and

Murphy were pending. Br. at 2. The OCCA dismissed that petition shortly after it was filed,

concluding the petition was premature because neither Murphy nor McGirt was final. Cole v. State,

No. PCD-2020-332 (Okla. Ct. Crim. App. May 29, 2020), at 4, https://bit.ly/3yFzt0t. After this Court

the state district court for an evidentiary hearing on the continuing existence of the

Cherokee Reservation.

The District Court concluded that the evidence presented at the hearing

showed that the Cherokee Reservation was established by treaty, that Congress

never disestablished the Reservation, that the Reservation still exists today, and that

Cole’s crime occurred on the Reservation. See Order on Remand, State v. Cole, No.

CF-2002-597,

3-6

(Okla.

Dist.

Ct.

Rogers

Cnty.

Nov.

12,

2020),

https://bit.ly/3uu9GF8 (“Dist. Ct. Order”). The case then returned to the OCCA,

which on April 29, 2021, issued an opinion in which it relied on the District Court’s

findings of facts, applied the GCA, and found that the State lacked jurisdiction to

prosecute Cole. See State’s App. at 001-015.

The same day, the State filed with the OCCA a motion to stay the mandate

pending certiorari review. See Mot. to Stay Mandate for Good Cause Pending Cert.

Review, https://bit.ly/3upTXXP.

In its motion, the State argued that the OCCA

should grant an indefinite stay until this Court decided the State’s forthcoming

petition for certiorari, relying on the OCCA’s decision to grant a limited, forty-five

day stay in Bosse, and asserting that the State’s petition in this case would raise the

same issues raised in Bosse. Id. at 1-2. In its supporting brief, the State also urged

the same supposed practical concerns about the implementation of McGirt that it

raised in this Court in its stay request in Bosse. Compare Br. in Supp. of Mot. to Stay

decided McGirt and Murphy, Cole filed the petition giving rise to this case, which before the OCCA is

No. PCD-2020-529.

Mandate for Good Cause Pending Cert. Review 3-9 with App. to Stay Mandate of

Okla. Ct. of Crim. App. Pending Review on Cert. at 7-25, Oklahoma v. Bosse, No.

20A161 (“State Bosse Br.”). Cole did not oppose the motion, although he did oppose

a stay that would last beyond June 1. See Pet.’s Resp. to State’s Mot. to Stay

Mandate, at 1 (State’s App. 025). However, he stated in his response that “[f]ollowing

June 1, 2021, this Court should proceed in accordance with the course taken by the

Supreme Court in Bosse.” Id. On May 12, 2021, the OCCA issued an order staying

the issuance of the mandate, but only until June 1, 2021. State’s App. at 027-028.

The State filed the instant request for stay on May 21, 2021. Following the full

Court’s May 26, 2021 decision to stay the mandate in Bosse, the State filed a motion

and brief in support with the OCCA to stay its mandate further until the conclusion

of certiorari review, “consistent with the Supreme Court’s stay in Bosse . . . .” Mot. to

Further Stay Mandate in Light of U.S. Sup. Ct.’s Order Staying Mandate in Okla. v.

Bosse, at 2, https://bit.ly/3oTobBp. In its brief in support, the State relied on the fact

that Cole had expressly asked the OCCA to “proceed in accordance with the course

taken by the Supreme Court in Bosse,” Br. in Supp. of Mot. to Further Stay Mandate

in Light of U.S. Sup. Ct.’s Order Staying Mandate in Okla. v. Bosse, at 1, 5-6,

https://bit.ly/3wIPf9f, in addition to this Court’s decision to stay the Bosse mandate,

id. at 5. The OCCA has not yet ruled on that motion.

REASONS FOR DENYING THE APPLICATION

A stay of the mandate is an extraordinary remedy. To obtain such a stay

an applicant must show (1) a reasonable probability that four Justices

will consider the issue sufficiently meritorious to grant certiorari; (2) a

fair prospect that a majority of the Court will vote to reverse the

judgment below; and (3) a likelihood that irreparable harm will result

from the denial of a stay. In close cases the Circuit Justice or the Court

will balance the equities and weigh the relative harms to the applicant

and to the respondent.

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (citations omitted). A

“reasonable probability” of certiorari generally exists where there is a conflict in the

lower courts on a question of federal law, the question is important, and the posture

of the case is appropriate for certiorari review. See Conkright v. Frommert, 556 U.S.

1401, 1402-03 (2009) (Ginsburg, J., in chambers); Kenyeres v. Ashcroft, 538 U.S. 1301,

1303-06 (2003) (Kennedy, J., in chambers). A failure to show irreparable harm is an

independently sufficient reason to deny a stay request. See Nken v. Holder, 556 U.S.

418, 438-39 (2009) (Kennedy, J., concurring); Ruckelshaus v. Monsanto Co., 463 U.S.

1315, 1317 (1983) (Blackmun, J., in chambers); Rostker v. Goldberg, 448 U.S. 1306,

1308 (1980) (Brennan, J., in chambers) (all citing Whalen v. Roe, 423 U.S. 1313, 1316

(1975) (Marshall, J., in chambers)).

The Cherokee Nation joins in full the arguments of the Chickasaw Nation in

its amicus brief in Bosse, which explain why the State should not obtain a stay in this

case. The Cherokee Nation’s own efforts to implement McGirt further support that

conclusion, for the reasons shown infra at 9-13.

APPLICANT HAS NOT SHOWN THAT CERTIORARI IS LIKELY TO BE

GRANTED, OR A FAIR PROSPECT OF REVERSAL, IN THIS CASE.

The State argues that the Court should issue an indefinite stay for the same

reasons that it sought a stay in Bosse. Br. at 4. In Bosse, the State represented that

it would seek certiorari on two questions, which it argued justified a stay: whether a

petitioner can be procedurally barred from raising the existence of Indian country in

a petition for post-conviction relief; and whether the State has criminal jurisdiction

in Indian country under the GCA. See State Bosse Br. at 2. The Cherokee Nation

joins the Chickasaw Nation’s explanation of why certiorari and reversal on those

points is unlikely. See Chickasaw Bosse Br. at 8-24. As to the second question, the

OCCA’s decision follows over a century of precedent holding that federal jurisdiction

under the GCA is exclusive of state jurisdiction. See id. at 20-23. Mindful of the

impending resignation of the Oklahoma Attorney General and his replacement by the

Governor with a new Attorney General, see Oklahoma Attorney General Mike Hunter

Announces He Will Resign, KOCO (May 26, 2021 5:42 PM), https://bit.ly/3yImzij; see

Okla. Const. art. VI, § 13, the Nation is also concerned that the State’s quest for

certiorari, either here or in Bosse, will frustrate the delivery of justice under the rule

of law set forth in McGirt for other reasons. 2 Neither question the State poses

justifies doing so.

2 The Governor has said that he believes there is a “legal path forward” to either narrow McGirt’s

application to the criminal context, or “‘overturn McGirt entirely’ by running potential cases ‘back up

the flagpole to the Supreme Court.’” Houston Keene, Oklahoma Gov. Says Dangerous Criminals

Walking Free Thanks to ‘Horribly Wrong’ Supreme Court Ruling, FOXNews (Apr. 7, 2021),

https://fxn.ws/3yCvCkV. The Governor has said “he believes the Supreme Court ruling was

‘100% wrong’ and that there's a 50% chance to overturn the ruling.” Id. Of course, neither Bosse nor

Cole concern the existence of the Muscogee (Creek) Reservation, and neither concerns civil jurisdiction,

and so the Court could not “overturn” or “narrow” McGirt in this manner in a ruling on either Bosse

or Cole. (The same is true of a companion case regarding the Choctaw Reservation, in which the State

has sought a stay. See Oklahoma v. Ryder, No. 20A168 (U.S. docketed May 21, 2021).). Moreover, the

State has waived any effort to challenge the existence of the Chickasaw or Cherokee Nations’

Reservations in these cases by failing to contest their continued existence below. See Dist. Ct. Order

at 2, 6. So, these possible basis for seeking certiorari provide no reason to grant a stay in this case.

See City of Springfield, Mass. v. Kibbe, 480 U.S. 257, 259 (1987) (citing California v. Taylor, 353 U.S.

553, 556 n.2 (1957)) (“We ordinarily will not decide questions not raised or litigated in the lower

courts.”).

Therefore, the State’s briefing in Bosse and here provides no reason to stay the

mandate in this case.

II.

APPLICANT DOES NOT FACE IRREPARABLE HARM, AS THE

NATION’S EFFORTS TO PROTECT THE PUBLIC SHOW.

The State’s incorporation of its briefing in Bosse includes its argument that the

State will face irreparable harm if the Bosse decision is not stayed. See State’s Bosse

Br. at 23-25. The State does not face irreparable harm here, for the same reasons

that the Chickasaw Nation explained in its amicus brief in Bosse. See Chickasaw

Bosse Br. at 25-35. The practical demands of remedying injustice by implementing

this Court’s decision in McGirt and the follow-on OCCA decisions provide no reasoned

basis for re-interpreting a statute that has a settled meaning, nor do they supply

irreparable harm. The State’s alleged “harm” is nothing more that its dissatisfaction

with McGirt and the follow-on OCCA cases and its frustration with its duty to

implement those decisions, dressed up as irreparable harm. Id. at 1-2.

The State’s allegations of harm are also overblown—as shown by the work that

the Cherokee Nation is doing to implement the opinions in McGirt and Cole to ensure

public safety and to provide justice on the Reservation in accordance with those

rulings. Immediately after this Court decided McGirt, in anticipation of the judicial

recognition of the Cherokee Reservation boundaries, the Nation’s Legislature

undertook the planning and enactment of wide-ranging legislation that revised its

criminal, traffic, and juvenile codes to address the effects of the acknowledgment of

those boundaries.

See Office of the Att’y Gen, Cherokee Nation, Tribal Code,

https://bit.ly/3un7E9L (last accessed May 28, 2021) (providing links to 2021

amendments to Titles 10A, 21, 22, and 47 of the Cherokee Nation Code). The Nation

is also now working with state and municipal law enforcement to provide access to

the Nation’s criminal codes in state and electronic ticketing, jail, and records

software. That will enable state and local law enforcement officers to charge crimes

under the revised Cherokee Nation Code in the exercise of their authority under

inter-governmental

cross-deputization

agreements

memorandums

understanding with the Nation.

The Nation has already entered into cross-deputization agreements with all

the county and municipal law enforcement agencies on the Cherokee Reservation, as

well as the Oklahoma Highway Patrol, Oklahoma State Bureau of Investigation, and

State Fire Marshal. See Okla. Sec’y of State, Tribal Compacts and Agreements,

https://bit.ly/3fP7brL (last accessed May 28, 2021) (enter “Cherokee” into “Doc Type”

search and select “Submit”). Since December 2020, we have entered into over twentyeight such agreements with municipal and state government authorities. See id. The

Nation is also currently working with municipalities on the Reservation to finalize

memorandums of understanding that would allow municipalities to take payment for

traffic and misdemeanor offenses committed by Indians under tribal law and share

the resulting fees and fines with the Nation.

See Curtis Killman, Here’s How

Cherokee Tribal Courts Are Handling the Surge in Cases Due to the McGirt Ruling,

Tulsa World (May 17, 2021), https://bit.ly/3fOcSq2. This will help municipalities

provide police protection within their limits on the Reservation. We also continue to

meet and communicate with local District Attorneys, city prosecutors, state, county

and municipal law enforcement, state agencies including Oklahoma Department of

Public Safety and Office of Juvenile Affairs, city and county elected officials, and

other stakeholders to discuss ways to collaborate and ensure public safety throughout

the Reservation.

The Nation has also expanded its own law enforcement capacity across the

board.

Since McGirt was decided, the Nation has hired six additional tribal

prosecutors and six criminal justice support staff, two new judges, and a new court

clerk. We also continue to hire more marshals to police the Reservation. And the

Nation’s Office of the Attorney General is hiring new investigators and probation

officers.

Cooperation and comity produce results: The Nation has executed a letter of

intent with local county commissioners and is in process of finalizing a lease that

would allow the Cherokee Nation to operate a District Courtroom in the Rogers

County Courthouse in Claremore, Oklahoma.

The Nation is also opening two

additional court locations in Jay, Oklahoma, in Delaware County, and Muskogee,

Oklahoma, in Muskogee County. This expanded criminal justice system is doing good

work: Since the OCCA acknowledged the continued existence of the Cherokee

Reservation, our prosecutors have filed approximately 1,000 criminal cases. The

Nation has also entered into detention agreements with twelve of the fourteen

counties that are entirely or partially within the Cherokee Reservation, and with

three juvenile detention centers in the Reservation, under which these facilities have

agreed to house Indians arrested in the Reservation.

The Nation is particularly committed to protecting Indian children on the

Reservation. On September 1, 2020, the Cherokee Nation and the State of Oklahoma

finalized an agreement in which the Nation agreed, pursuant to the Indian Child

Welfare Act, 25 U.S.C. §§ 1901-1963, to allow Oklahoma to exercise concurrent

jurisdiction with the Nation over Indian children domiciled on the Cherokee

Reservation for purposes of most child custody proceedings. See Intergovernmental

Agreement Between State of Okla. & Cherokee Nation Regarding Jurisdiction over

Indian Children Within Nation’s Reservation (Sept. 1, 2020), https://bit.ly/3vsbAY9.

We are also committed to ensuring that members of the public have access to

and are informed about the Nation’s criminal justice system and can obtain protection

from tribal law enforcement. We are developing an online portal for the Nation’s

court system, so that document filing and fee payment may be done online and so the

public can readily access tribal judicial records. The Nation also has established an

emergency law enforcement phone line, which is staffed by dispatch twenty-four

hours a day. And the Cherokee Nation Attorney General’s Office has established a

phone line where members of the public can call and speak to a Nation attorney,

twenty-four hours a day, about their questions regarding tribal law and jurisdiction.

The Nation stands shoulder-to-shoulder with local, state, and federal officials

and governments throughout the Cherokee Reservation, to implement measures

necessary to protect our citizens and all people who live on or visit the Cherokee

Reservation. Granting a stay would not accomplish anything different from the

results we have obtained by working with other governments to ensure that people

know the law, that the law is applied, and that criminals face justice. But it would

disrupt our ability to engage in that process, because it creates substantial

uncertainty about the results in criminal cases pending before the OCCA.

CONCLUSION

The State’s application for a stay should be denied.

Respectfully submitted,

FRANK S. HOLLEMAN, IV*