IN THE JUDICIAL APPEALS TRIBUNAL

IN THE JUDICIAL APPEALS TRIBUNAL

OF THE CHEROKEE NATION

HAROLD DeMOSS, AS COUNCIL MEMBER

AND INDIVIDUALLY,

Petitioner,

Vv.

HARLAN JOE JONES, AS SECRETARY-

TREASURER OF THE CHEROKEE NATION;

AND THE CHEROKEE NATION OF OKLA-

HOMA, ALSO CALLED THE CHEROKEE

NATION,

Respondents,

-AND-

KARLAN RODGER HARTLEY,

Petitioner,

Vv.

HARLAN JOE JONES, AS SECRETARY-

TREASURER OF THE CHEROKEE NATION;

JOE BYRD, AS PRINCIPAL CHIEF;

GARLAND EAGLE, AS PRESIDENT OF

THE TRIBAL COUNCIL; MARY COOKSEY,

AS SECRETARY-TREASURER OF THE

TRIBAL COUNCIL; MEMBERS OF THE

CHEROKEE TRIBAL COUNCIL, WILLIAM

SMOKE, HAROLD DeMOSS, TROY WAYNE

POTEETE, PAULA HOLDER, HAROLD

PHILLIPS, DON CRITTENDEN, MIGE

GLORY, BARBARA CONNESS, BARBARA

SCOTT, SAM ED BUSH, CHUCK HOSKIN,

NICK LAY, BILL BAKER, AND DORA MAE

WATIE; AND THE CHEROKEE NATION,

ee ee (ee (i a a Se a ie SS iw Sr OS OS I OS a

JAT No. 96-01-K

CONSOLIDATED

FILED

| SEP 23 1998. |

Lr

CHEROKEE NATION

JUDICIAL APPEALS TRIBUNAL

Respondents.

FOR THE PETITIONER: Karlan Rodger Hartley, Pro Se,

Assisted By David A. Cornsilk

Route 2, Box 265

Sallisaw, OK 74955

FOR THE RESPONDENTS: James G. Wilcoxen, Esq.

Wilcoxen, Wilcoxen & Primomo

P.O. Box 357

Muskogee, OK 74402-0357

BEFORE: Ralph F. Keen, Justice

ORDER

PROCEDURAL HISTORY

Harold DeMoss, as Council member and Individually, Petitioner,

filed a lawsuit for declaratory and injunctive relief against

Harlan Joe Jones, as Secretary-Treasurer of the Cherokee Nation,

and the Cherokee Nation of Oklahoma, also called the Cherokee

Nation, Respondents. A few days thereafter, Karlan Rodger Hartley

filed a "Motion to Join Complaint for Declaratory and Injunctive

Relief." While Hartley's Motion named additional Respondents

(including DeMoss) and asked for relief in addition to that

requested in DeMoss' Complaint, both lawsuits concerned common

issues of fact and law regarding the Cherokee Nation's fiscal

budget and the budgeting process, and they were consolidated.

Petitioner DeMoss later moved to dismiss his lawsuit and his

Motion was granted. Following the dismissal of the DeMoss case,

Petitioner Hartley filed a Motion to Amend Original Petition which

involved new matters not covered by his original Petition nor the

DeMoss Petition. Mr. Hartley subsequently filed a Motion to

Dismiss all portions of his lawsuit except for the Motion to Amend

the Original Petition.’ Therefore, while the case number and

parties in the Amended Petition filed by Mr. Hartley remained the

‘Inadvertently overlooked, previously, the Motion is hereby granted.

2

same,” the reality is, the lawsuit which remained was an entirely

different case, as to the questions of fact and law being at issue,

from the original Petition.

Those remaining issues of law and fact were narrowed and

focused at the Rule 52 Status and Simplification Conference. For

and from that Conference, a Status and Simplification Report*® (the

"Report") was prepared and jointly signed by the parties.

In the Report, both parties agreed to submit the case for decision by the Court on cross-motions for summary judgment.* Both

parties filed their respective Motions for Summary Judgment and

briefs. As there is no dispute between the parties as to the

material facts, and the case only concerns a question of law, there

is no need for any hearing nor trial.

THE ISSUES

The Petitioner's lawsuit raises a question regarding the

legality of a specific piece of legislation enacted by the Council

of the Cherokee Nation. The question as posed by the Petitioner

7In the Amended Petition, Mr. Hartley stated: "Harlan Joe Jones is no longer the Secretary/Treasurer of the Cherokee Nation, and has been replaced since the initial filing of this

suit by Ms. Jennie Battles. Petitioner's suit is not directed toward Mr. Jones, or Ms. Battles

as individuals, but is directed at the office which they hold and the constitutional obligations

of the office of Secretary/Treasurer of the Cherokee Nation."

°Under JAT Rule 52, the following language is part of every Status and Simplification

Conference Report: All parties approve this order and understand and agree that this order

shall govern the conduct of this case from this point forward and shall not be amended except

by order of the Tribunal.

“In a Motion for Summary Judgment, the moving party alleges that there is no genuine

issue as to any material fact and that the party is entitled to judgment as a matter of law.

JAT Rule 21.

cannot be resolved without examining Cherokee constitutional law.

The two issues before the Court are:

1. Does a pay raise given by members of the Council of the

Cherokee Nation, to themselves, through an Act known as LA 5-95,

violate Cherokee law?

Ze What is the status of, and relationship between, two

Constitutions of the Cherokee Nation of Oklahoma approved, respectively, in 1839 and 1976?

THE FACTS

On August 14, 1995, the day on which the members of the Council of the Cherokee Nation were sworn into office, the members of

the Council of the Cherokee Nation passed an Act known as LA 5-95,

and it became law.° Petitioner objects to provisions in LA 5-95

through which the Council members gave themselves a pay raise.°®

It is not disputed by the parties to this lawsuit that under

Article III, Section 10 of the Constitution of the Cherokee Nation

of 1839,’ such legislation would be illegal. Article III, Section

10 of the 1839 Constitution is as follows:

*Monday, August 14, 1995, was a regularly-scheduled day for a Council meeting and the

agenda, including LA 5-95, had been posted by the previous Council.

°"Pay raise" is the term chosen and used by the parties in their pleadings. Legislative Act

5-95 concerned compensation for Council members, generally, and amended C.N.C.A. § 6-

3-1; the body of the language of the Act is as follows: Council members shall not receive a

salary for conducting the official duties of their office. Council members shall receive

$600.00 per month for travel, plus $100.00 per official meeting of Standing

Committees by members of the Council. No Council member shall be reimbursed for more

than eight (8) meetings per calendar month.

’The Constitution of the Cherokee Nation enacted on the 6th day of September, 1839, is

herein referred to as the "1839 Constitution."

The members of the National Council, shall each receive

from the public Treasury a compensation for their services which shall be three dollars per day during their

attendance at the National Council; and the members of

the Council shall receive three dollars per day for their

services during their attendance at the National Council,

provided that the same may be increased or diminished by

law, but no alteration shall take effect during the

period of service of the members of the National Council

by whom such alteration may have been made (emphasis

added).

As is true with other provisions of the 1839 Constitution,

there is no correspondingly similar provision to the foregoing to

be found in the constitution under which the Cherokee government is

presently operating. The Constitution under which the Cherokee

government is presently operating was approved by Cherokee voters

by referendum on June 26, 1976; it is commonly called the "1975

W8

Constitution, and it is herein referred to as such.

THE POSITIONS OF THE PARTIES AS TO THE LAW

With a considerable amount of historical explanation given by

him, Petitioner asserts that the 1975 Constitution was promulgated

by then Principal Chief Ross Swimmer on his own, without legal

authority to do so, and, in fact, it was done in direct contravention of the law then in effect, being the 1839 Constitution. In

short, Petitioner believes the adoption of the 1975 Constitution

was fraudulent. He describes the 1975 Constitution as the de facto

[as though it were legal, but it's not] organic [basic organiza-

tional] document of the government of the Cherokee Nation.

*Approved for referendum by the Commissioner, Morris Thompson, on September 5,

1975, seconded by the Principal Chief of the Cherokee Nation, Ross O. Swimmer, on October

2, 1975.

However, Petitioner does not ask the Court to find the 1975

Constitution to be void. Rather, he basically asks the Court to

construe it as being an amendment of the 1839 Constitution. The

Petitioner maintains that the 1975 Constitution, by its own provi-

sions, did not and could not totally supersede the 1839 Constitution. Mr. Hartley asserts that the 1975 Constitution only superseded those provisions common to both constitutions and left intact

and operative those provisions of the 1839 Constitution for which

there is no corresponding provision in the 1975 Constitution.

Respondents' reply to Petitioner is simple and straightforward. The words of Article XVI of the 1975 Constitution provide:

The provisions of this Constitution overrule and super-

sede the provisions of the Cherokee Constitution enacted

the 6th day of September 1839.

Respondents state that the only reasonable interpretation that can

be given Article XVI of the modern Constitution is that it was intended by the people to be the governing document of the Cherokee

Nation instead of the Constitution of 1839; there is no authority

or argument which can be made to the effect that in 1976 the

Cherokee people intended to be governed by two separate constitutional documents; and there is no rational basis for the concept

that a constitutional government be founded on two separate consti-

tutions.

CHEROKEE CONSTITUTIONAL LAW

"As used herein, the word 'constitution' means a declaration

of fundamental laws or principles for the government of a nation or

state. A constitution represents the supreme written will of the

people regarding the framework for their government. Where a constitution asserts a certain right, or lays down a certain principle

of law or procedure, it speaks for the entire people as their

supreme law, and it is the paramount authority for all that is done

in pursuance of its provisions. A constitution thus embodies

fundamental values and articulates the citizens' common aspirations

for constitutional governance. "’

Subject only to the limitations of the Constitution of

the United States of America, the Constitution of the

Cherokee Nation is the supreme law of the Cherokee people

regarding the framework of their Cherokee government.

A central issue before the Court concerns the meaning of Article XVI of the 1975 Constitution. Should Article XVI be interpreted as requested by the Petitioner, or the Respondents, or in some

other way? The correct and proper rules for interpretation of constitutional provisions in other jurisdictions have been the subject

of much litigation, and scholarly discourse and writing, for many

years. The Oklahoma Supreme Court has stated a clear and succinct

rule for interpretation of the Oklahoma Constitution:

In interpreting an Oklahoma constitutional provision our

goal is to give effect to the intent of its framers and

the people adopting it. To determine this intent we look

to the instrument itself and when the text of a constitutional provision is unambiguous, the courts, in constru-

°16 Am Jur 2d Constitutional Law § 1.

*°Article I of the Constitution of the Cherokee Nation of Oklahoma, approved by

referendum on June 26, 1976.

ing it, are not at liberty to search for meaning beyond

the instrument’ (citations omitted).

This Court finds logic, reason and merit in the rule of con-

stitutional interpretation used by the Oklahoma Supreme Court, and,

substituting the words "a Cherokee" for "an Oklahoma," hereby

adopts it.

The rule the Court adopts today is consistent with the rule

described, as being correct, by many legal scholars and commentators.

"Words or terms used in a constitution, being dependent on

ratification by the people voting upon it, must be understood in

the sense most obvious to the common understanding at the time of

its adoption, although a different rule might be applied in inter-

preting statutes and acts of the legislature. Thus, it is a wellsettled rule, and one said to be in accord with obvious good sense,

that words appearing in a constitution are presumed to have been

used according to their ordinary, plain, natural, and usual signi-

fication and import."?”

It is presumed by the Court that the framers of the 1975 Cherokee Constitution, and the Cherokee people who voted in the referendum on its approval, had a knowledge of the meaning of the words

"overrule" and "supersede." Definitions for these words in Web-

“First American Bank and Trust Company of Purcell v. Oklahoma Industrial Finance

Authority 1997 OK 155 1 10; 951 P.2d 625, 629 (Okla. 1997).

1216 Am Jur 2d Constitutional Law § 71.

8

ster's New Collegiate Dictionary, G. & C. Merriam Co., 1973, are as

follows:

OVERRULE: 1. to rule over: GOVERN, 2. to prevail over:

OVERCOME, 3.a: to rule against, b: to set aside: REVERSE.

SUPERSEDE: 1.a: to cause to be set aside, b: to force out

of use as inferior,’* 2: to take the place, room, or

position of, 3: to displace in favor of another: sup-

plant, syn see REPLACE.

As shown above, Article XVI of the 1975 Cherokee Constitution

states: The provisions of this Constitution overrule and supersede

the provisions of the Cherokee Nation Constitution enacted the 6th

day of September 1839.

The best argument for the Petitioner's position is that Article XVI of the 1975 Constitution is ambiguous, caused by the use,

twice, of the words "the provisions." In other words, Article XVI

does not read: This Constitution overrules and supersedes the Cherokee Constitution enacted the 6th day of September, 1839. If it so

read, and if the word "totally" came before "overrule," then the

Petitioner would have no argument possessing any degree of intellectual integrity.

On the other hand, and in support of the Respondents' position, Article XVI does not use the word "amend," nor does it state

that if there is no provision in the 1975 Constitution corresponding to the 1839 Constitution, then the 1839 provision remains in

effect.

**Definition 1.b of "supersede," to wit: to force out of use as inferior is, of course,

totally inappropriate when describing the replacement of the 1839 Constitution of our

Cherokee ancestors with the 1975 Constitution.

9

The conclusion reached by Petitioner is not clear, plain nor

obvious at first reading of the words of Article XVI. To arrive at

Petitioner's conclusion requires some lawyer-like pondering (that

is, deliberate, sober, quiet and deep thought), but colored with a

definite goal in mind (1975 only amends 1839). Petitioner's

"logic" is boot strapping "Spin" working backwards from the conclusion to find justification for it; a rationalization to explain

away the obvious.

Both parties agree that the 1839 Constitution contains wisdom'* not found in the 1975 Constitution. Notwithstanding the

honest and sincere criticism of the Petitioner which might be directed toward the drafters of Article XVI of the 1975 Constitution,

nonetheless, Article XVI is adequately clear and the Court holds

that the 1975 Constitution totally, completely and unconditionally

replaced the 1839 Constitution in its entirety; none of the provi-

sions of the 1839 Constitution remain in force or in effect.

Having found that the 1839 Constitution is no longer in force

and effect, the Petitioner's objection to the Council members' pay

raise becomes moot insofar as it is a proper matter before the

Court.

In reply to the Petitioner's objection to the pay raise itself, the Respondents note that the United States Congress has

enacted a procedure under which it can grant a pay raise to current

members. Further, Respondents state that the amount of the raise

14"Wisdom" is the word selected and used by both parties.

10

was not unreasonable in light of the duties of the members of the

Council. The Respondents are correct with the first statement and,

with the benefit of recent history as hindsight, they may well be

correct with the second. However, the issue of a pay raise for

Council members, alone, is not a matter to be decided by the Court.

The Court does not pass judgment on the wisdom of enacted legislation, within the framework of a lawsuit, but rather, on whether the

legislation can pass the test of being constitutional.*® Here, the

Court has ruled that the Council members' pay raise did not violate

the Constitution, and the Petitioner did not claim that the legislative procedure used by the Council was improper. If the Petitioner wishes to continue pursuing the matter of the Council pay

raises, he is free to do so in the "court of public opinion" where

the ultimate decisions are made by the Cherokee voters at the

ballot box.

HOLDING

THE COURT FINDS AND HOLDS:

Ls The pay raise to members of the Council of the Cherokee

Nation through enactment of an Act known as LA 5-95 does not violate Cherokee law.

2s The 1975 Constitution of the Cherokee Nation of Oklahoma

totally, completely and unconditionally replaces the 1839 Constitu-

tion of the Cherokee Nation of Oklahoma in its entirety, and none

18Phillips v. Eagle, No. JAT-98-09.

11

of the provisions of the 1839 Constitution remain in force or in

effect.

//, IT IS SO ORDERED on this FYE, say of September, 1998.

LPH F. KEEN,

JUSTICE

CHIEF JUSTICE BIRDWELL AND

JUSTICE VILES CONCUR

96-0Ol.opn

12