Case 4:11-cv-00648-TCK-TLW Document 203 Filed in USDC ND/OK on 06/14/13 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA THE CHEROKEE NATION, ) ) Plaintiff, ) ) vs. ) Case No.: 11-CV-648-TCK-TLW ) RAYMOND NASH, et al., ) ) Defendants. ) MOTION FOR EMERGENCY RESTRAINING ORDER COMES NOW, Robin Mayes, by and through his counsel of record, A.J. Garcia, in and for his Application for Emergency Temporary Restraining Order, pursuant to the Federal Rules of Civil Procedure, Rule 65, and moves this Honorable Court for an Emergency Order Restraining the Plaintiff, its agents and governmental divisions, from neglecting, failing and/or refusing to process citizenship registration applications and or requests from descendents of the Cherokee Freedmen and from failing to allow those applicants to vote in the upcoming June 22, 2013 Cherokee Nation Council Election; and in support thereof, alleges and states as follows: 1. That he is a candidate for an at-large council seat for the Plaintiff, Cherokee Nation (See Exhibit A attached hereto); 2. That the election for this position is schedule for the 22 nd day of June, 2013; 3. That than Emergency Restraining Order is necessary because the Intervenor has not yet been granted Intervention in the above-styled Page 1 of 1
Case 4:11-cv-00648-TCK-TLW Document 203 Filed in USDC ND/OK on 06/14/13 Page 2 of 9 action and the response date for his Motion to Intervene expires after the Plaintiff s Council elections are to be held; 4. That Robin Mayes has knowledge, information and belief that the Plaintiff, by and through its Citizenship Registration Department, is restricting the Cherokee Freedmen from registering as Cherokee Citizens which affects their right to vote in said election (See Exhibits B and C attached hereto); 5. That Intervenor, Robin Mayes, has exhausted tribal remedies by his challenge to candidacy in Cherokee Nation Supreme Court Case number SC-13-06. (See Exhibit D attached hereto); 6. That if the Plaintiff is permitted to restrict and limit the registration of and voting rights of the Freedmen, it significantly affects the election of Robin Mayes s candidacy and circumvents the Order of the United States District Court for District of Columbia; 7. That if the Plaintiff is permitted to restrict and limit the registration of the voting rights of the Cherokee Freedmen descendents for this Cherokee Nation Council Election, the situation lends itself to an election challenge by Robin Mayes and possibly other candidates; 8. If an election challenge is lodged, it must be filed with the Cherokee Nation Supreme Court; 9. The Cherokee Nation Supreme Court has already ruled that it will stand by the Cherokee Nation Constititutional Amendment disallowing Page 2 of 2
Case 4:11-cv-00648-TCK-TLW Document 203 Filed in USDC ND/OK on 06/14/13 Page 3 of 9 Cherokee Freedmen the right to vote. (See Exhibit D attached hereto); 10. Thus a challenge of the election ratification and the Plaintiff s government may be lodged in this Court, post election, by Robin Mayes and other candidates affected by the taint of the Plaintiff s continued denial of the Cherokee Freedmen descendants to register as citizens and vote in the June 22, 2013 election 11. The United States Department of Interior, Bureau of Indian Affairs has consistently expressed the position that it never approved the May 24, 2003 ratification of the Amendment to removal approval of Cherokee Nation Constitutional Amendments. 12. Even the Plaintiff has at various times acknowledged the lack of governmental approval of that election process. BRIEF IN SUPPORT Robin Mayes is a candidate for an at-large council seat with the Plaintiff, Cherokee Nation. The Cherokee Nation Council Election is set for June 22, 2013; in fact, walk-in voting began June 13, 2013. Robin Mayes requests to intervene in the above-styled action due to the fact that the Plaintiff has been neglecting, failing and/or refusing to process Citizenship Registration from the Cherokee Freedmen class, which are the descendants of those persons held by citizens of the Cherokee Nation as slaves and were emancipated by Treaty in 1866 between the United States and the Cherokee Nation. Page 3 of 3
Case 4:11-cv-00648-TCK-TLW Document 203 Filed in USDC ND/OK on 06/14/13 Page 4 of 9 Robin Mayes attempted to challenge the Plaintiff s neglect, failure and/or refusal to process those Freedmen applications for citizenship in his pre-election candidacy challenge with the Cherokee Nation Supreme Court in case number SC-13-06. The Supreme Court found that this issue was not properly before it in that action. As part of his challenge, Robin Mayes challenged his own candidacy in light of the enactment of the Cherokee Nation Constitution of 1999 by vote in 2003. The Supreme Court found that the 1999 Constitution was the organic law of the Cherokee Nation despite Mr. Mayes presenting evidence at hearing to show that the 1999 Constitution as it was enacted could not have been effected due to lack of approval of the Bureau of Indian Affairs. This raises the issue of whether or not the lack of BIA approval of any Constitutional Amendment that would allow for the Plaintiff to submit for vote of the Cherokee People and approval of an Amendment removing the Cherokee Freedmen from the registered citizenship of the Cherokee Nation. The Cherokee Nation Supreme Court has strongly opined that it will support the 1999 Constitution and its subsequent Amendments to the point of admonishing Robin Mayes that further such challenges could very well subject him to Sanctions pursuant to Cherokee Nation Civil Procedure. Although the Plaintiff and the Freedmen class Defendants have entered into an agreement that is Ordered to allow the Freedmen to enjoy all rights and benefits of other Cherokee Nation Citizens, the Plaintiff is not processing any new applications for Freedmen descendant registration as Cherokee Nation Page 4 of 4
Case 4:11-cv-00648-TCK-TLW Document 203 Filed in USDC ND/OK on 06/14/13 Page 5 of 9 Citizens. No action will be taken on those registrations pending this action without Order of this Court. Intervenor, Robin Mayes, submitted to the Plaintiff's Registrar a Freedom of Information Act request pursuant to 75 C.N.C. 1, et seq. (LA 25-01, 2001). Although only permitted to gain access to statistical data through such a request, Intervenor is attempting to further support his contention that no such Freedmen registrations are being processed; additional time will be necessary to gather such information from the Plaintiff. Plaintiff's registration data and records would contain information with regard to exactly when in the process of enacting Constitutional Amendments depriving the Freedmen descendants of Cherokee Nation Citizenship that it ceased processing such registration applications. The Treaty of 1866 established emancipation and rights for the slaves held by citizens of the Cherokee Nation. It firmly established as a binding and enforceable agreement between the Cherokee Nation and the United States that slaves of the citizens of the Cherokee Nation would be treated as Citizens of the Cherokee Nation and enjoy all rights benefits and privileges of a Cherokee Nation Citizen. This right remained in place until the Plaintiff began the process of removing these rights by submitting for vote of the Cherokee citizens an Amendment to the 1975 Cherokee Nation Constitution that would remove approval of the United States from any Amendments to the Cherokee Nation Constitution. Prior to submission to the Cherokee People for approval, Mr. Neal McCaleb with the United States Department of Interior, Bureau of Indian Affairs Page 5 of 5
Case 4:11-cv-00648-TCK-TLW Document 203 Filed in USDC ND/OK on 06/14/13 Page 6 of 9 issued a letter stating that he was prepared to approve the Amendment with certain provisions and restrictions to apply; namely, that all Cherokee Freedmen Descendants must be provided an equal opportunity to vote in the election and that no amendment of the Cherokee Nation Constitution would eliminate the Freedmen from membership in the Cherokee Nation absent Congressional approval (See Exhibit E, attached hereto); although this letter was subsequently recanted by Mr. Neal McCaleb. During this election for Amendment to the 1975 Constitution, Freedmen descendants were restricted from voting. (See Exhibit F, attached hereto) Additionally, neither the United States Department of Interior, Bureau of Indian Affairs nor any other agent of the President of the United States approved this Amendment. In fact, as the U.S. Department of Interior, Bureau of Indian Affairs has stated consistently, that it did not approve the Amendment removing Presidential approval until 2007. However, the Cherokee Nation Supreme Court opined that because an agent or employee with the BIA at the time of the election submitted a letter claim intention to approve this Amendment, which was subsequently supported as the approval of the Amendment in an affidavit after Mr. Neal McCaleb no longer had authority to issue approval, and the claim that for 3 years the BIA took no action even after a suit for determination of the effectiveness of the 1999 Constitution was filed in the Cherokee Nation Supreme Court in 2005, JAT-05-04. Interestingly enough, the Cherokee Nation supports its decision in that case by holding that an agency of the United States government did not appear or answer in that action; the Page 6 of 6
Case 4:11-cv-00648-TCK-TLW Document 203 Filed in USDC ND/OK on 06/14/13 Page 7 of 9 doctrine of sovereign immunity prevents the Cherokee Nation Supreme Court s boot strapped confirmation of the Amendment by failure to act by a sovereign entity under no duty or obligation to act. Additionally, the Plaintiff, by and through then Principal Chief, Chad Smith, acknowledged by letter to the U.S. Department of Interior, Bureau of Indian Affairs that the letter Mr. McCaleb provided expressing intent to approve was not a final approval of the May 24, 2003 Amendment to the Cherokee Nation Constitution. (See Exhibits G and H, Attached hereto) This was also re-iterated by counsel for the Plaintiff. (See Exhibit I, attached hereto) In point of fact, even the Cherokee Nation Tribal Council expressed concern regarding the lack of Freedmen descendants being involved in the voting process. (See Exhibit J, attached hereto) The Plaintiff has systematically engaged in activities designed to eliminate the Freedmen descendants from membership and voting in the Cherokee Nation elections. These actions are contrary to Treaties with the United States, in violation of their own Constitutional provisions and are oppressive, discriminatory and detrimental to its own government and citizenship. Pending the continuation of this lawsuit, registration requests and applications submitted by Freedmen descendants must be processed by the Plaintiff rather than held in limbo. The elections to be conducted June 22, 2013 should be extended so that those persons of Freedmen descent can prove their descent and be permitted to case ballots as they choose. 26 C.N.C. 21 (B) (LA 06-10, 2010) permits original enrollees to show proof of original enrollment and residence in a precinct but not Page 7 of 7
Case 4:11-cv-00648-TCK-TLW Document 203 Filed in USDC ND/OK on 06/14/13 Page 8 of 9 on the Voting List, then may fill out a voter registration card and cast their ballot in that precinct. Those Freedmen descendants showing proof of descent from previously enrolled Freedmen could very easily be permitted to exercise voting rights in much the same manner. WHEREFORE, above premises considered, Robin Mayes respectfully moves this Court for an Emergency Restraining Order directing the Plaintiff to process Freedmen Registration applications or requests and to hold open the election for those Freedmen descendants to register and vote in the June 22, 2013 election. Respectfully submitted, /s/ A.J.Garcia A.J. Garcia, OBA#18937 504 East Willis Road Tahlequah, OK 74464 (918) 453-9949 telephone (918) 453-9949 facsimile garciaajjr@yahoo.com Page 8 of 8
Case 4:11-cv-00648-TCK-TLW Document 203 Filed in USDC ND/OK on 06/14/13 Page 9 of 9 CERTIFICATE OF SERVICE I, hereby certify that on the 14 th day of June, 2013, I electronically transmitted the foregoing document to the Clerk of Court using the ECF system for filing and transmittal of a Motion to Intervene to the following ECF registrants: Robert Allen Cherokee Nation Lisa Duke Ken Salazar U.S. Department of the Interior Kathy Washington Cherokee Friedman (Class Appellant) John Doe Raymond Nash Secretary of the Interior Larry Wasson _/s/ A.J. Garcia Page 9 of 9
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Case 4:11-cv-00648-TCK-TLW Document 203-11 Filed in USDC ND/OK on 06/14/13 Page 1 of 6 Case 1:03-cv-01711-TFH Document 72-3 Filed 05/29/07 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MARILYN Y ANN, RONALD MOON, HATTIE CULLERS, CHARLENE WHITE, and RALPH THREAT, Plaintiffs, v. DIRK KEMPTHORNE,1 Secretary of the United States Department of the Interior, UNITED STATES DEPARTMENT OF THE INTERIOR, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 1:03CY01711 (HHK) Judge: Henr H. Kennedy Deck Type: Civil Rights (non-employment) Date Stamp: 08/11/03 I, Carl J. Arman, declare: DECLARATION OF CARL 1. ARTMAN ASSISTANT SECRETARY - INDIAN AFFAIRS 1. I am the Assistant Secretar - Indian Affairs, Office of the Secretary, U.S. Department of the Interior. 2. As the Assistant Secretary - Indian Affairs, I am the senior official within the Department primarily responsible for Advising the Secretary of the Interior on matters relating to Indian affairs. 3. I have held my position as Assistant Secretary since March 5,2007. 4. Prior to serving as Assistant Secretary, I served as Associate Solicitor for the Division of lthe plaintiffs fied this case against Gale A. Norton, in her official capacity as the Secretary ofthe Interior. She resigned her position and Dirk Kempthome assumed the position ofsecreatr. Under Fed.R.Civ.P. 25, Secretary Kempthome is automatically substituted for Secretary Norton as defendant. -1-
Case 4:11-cv-00648-TCK-TLW Document 203-11 Filed in USDC ND/OK on 06/14/13 Page 2 of 6 Case 1:03-cv-01711-TFH Document 72-3 Filed 05/29/07 Page 2 of 6 Indian Affairs within the Office of the Solicitor for the Departent ofthe Interior. 5. As the Associate Solicitor, I was the senior legal counsel within the Offce of the Solicitor primarily responsible for providing the Solicitor, the Deputy Secretary and the Secretary with legal counsel on Indian matters. 6. As a result of my service as Associate Solicitor and now as Assistant Secretary, I am aware of the Department's positions with regard to the recent actions purporting to amend the Constitution of the Cherokee Nation of Oklahoma. 7. The Deparent's position is: a. Article XV, Section 10, of the Cherokee Nation's Constitution, approved in 1975 and ratified by the qualified voters on June 26, 1976, provides: "No amendment or new Constitution shall become effective without the approval of the President of the United States or his authorized representative." b. In May 2003, the Cherokee Nation held an election that included the question of whether to remove from the face of the Cherokee Constitution the requirement for Presidential or Secretarial approval of future amendments. c. Former Assistant Secretary - Indian Affairs Neal McCaleb indicated in correspondence to the Principal Chief of the Cherokee Nation prior to the election that he intended to approve the amendment. d. The majority of Cherokee voters favored removing the requirement for Presidential or Secretarial approval of future amendments. e. The Department disapproved the 2003 amendment on May 21, 2007, as evidenced -2-
Case 4:11-cv-00648-TCK-TLW Document 203-11 Filed in USDC ND/OK on 06/14/13 Page 3 of 6 Case 1:03-cv-01711-TFH Document 72-3 Filed 05/29/07 Page 3 of 6 by the attached letter. (Attachment A). f. Subsequent to the May 2003 election, the Cherokee membership purported to adopt an amendment ofthe 1976 Constitution, which is referred to as the "1999 Constitution. " g. The adoption of the "1999 Constitution" has not been approved by the Department in accordance with Section 10 of Aricle XV of the 1976 Cherokee Constitution. h. The Department considers the 1976 Constitution to be the governing document of the Cherokee Nation for the Department's purposes. 1. The 1976 Constitution provides: "All members of the Cherokee Nation must be citizens as proven by reference to the Dawes Commission Rolls." The Cherokee Judicial Appeals Tribunal interpreted this provision to include the Freedmen roll and concluded that the Freedmen are members of the Tribe. Allen v. Cherokee Nation Tribal Council, (JAT-04-09, March 7,2006). J. The March 2007 amendment to the "1999 Constitution," which requires proof of Indian ancestry for membership effectively precluding Freedmen members from continuing their status as members, is an amendment of a Constitution that the Departent does not recognize as the governing document of the Cherokee Nation. k. The Department considers Secretarial approval of any constitutional amendment or new Constitution to be necessary before such amendment or new Constitution can be effective. -3-
Case 4:11-cv-00648-TCK-TLW Document 203-11 Filed in USDC ND/OK on 06/14/13 Page 4 of 6 Case 1:03-cv-01711-TFH Document 72-3 Filed 05/29/07 Page 4 of 6 1. In consultation with the Regional Director, Eastern Oklahoma Region of the Bureau of Indian Affairs, I reviewed the procedures for selecting the Principal Chief of the Cherokee Nation as required by the Principal Chiefs Act of 1970 (84 Stat. 1091) and approved the procedures on behalf of the Department. (Attachment B). I declare under penalty of perjury that the foregoing is true and correct. EXECUTED on the ~ day of May 2007. " Carl J. Artman "' Assistant Secretary - Indian Affairs Departent of the Interior -4-
OFFCE OF THE SECRETARY WASHIGTON, D.C. 20240 a:j ~~ TAKE PRIDE INAMERlCA Case 4:11-cv-00648-TCK-TLW United States Document Case 1:03-cv-01711-TFH Document Department 203-11 Filed in 72-3 Filed of USDC the ND/OK 05/29/07 Interior on 06/14/13 Page 5 of 6 Page 5 of 6 The Honorable Chad Smith Principal Chief, Cherokee Nation P.O. Box 948 ' Tahlequah, Oklahoma 74465-0948 Dear Chief Smith: MAY 2 i 2001 The Departent of the Interior considered approval of the May 2003 amendment to the 1976 Cherokee constitution that would remove from the constitution the requirement that the Secretary approve all constitutional amendments for them to be effective. After thorough analysis, the Departent hereby disapproves the 2003 amendment. The Secretary must, therefore, still approve.constitutional amendments before they become effective. I do not make the decision to disapprove t~e 2003 amendment lightly. I recognize the Cherokee Nation as a sovereign nation capable ofmãnaging its government without oversight ofthe Federal government. I also recognize that the United States 1866 treaty with the Cherokee Nation was somewhat unusual in its requirement that the Cherokee Nation recognize the rights of individual Freedmen in exchange for amnesty and the continuation of the governent-to-government relationship between the United States and the Nation. I am concerned that approval by the Departent of the 2003 amendment at this time would be used by some as a validation or evidence of legitimacy of the Cherokee Nation's removal of its Freedmen members from the trbe in apparent violation of the 1866 treaty. Therefore, I cannot approve the 2003 amendment knowing it may provide the basis for violating the terms and intent of the i-866 treaty. In its December 16,2006, decision, the distrct coiirt in the Vann litigation stated that the Deparrent's failure to act on the 2003 amendment was final agency action for purposes of establishing the cour's jursdiction to hear the case. Nothing in the Cherokee Constitution or the Deparènt's regulations imposes a timdimit on the Departent's responsibility to approve or disapprove amendments to the Constitution. The cour's conclusion that the Departent's failure to act until now constituted final agency action does not preclude me from making a decision now on whether to approve or disapprove the 2003 amendment. In closing, I want to assure you that I have the utmost respect for the Cherokee Nation and its powers and right of self-government. As the Federal government works to honor and implement the i 866 treaty, -we trst the Cherokee Nation wil also honor the treaty that it entered into in the exercise of ifs powers of self-government. - _." cc~ Sincerely, -- Assistant Secretar - Indian Affairs Declaration of Carl J. Artman Attachment A
Case 4:11-cv-00648-TCK-TLW Document 203-11 Filed in USDC ND/OK on 06/14/13 Page 6 of 6 Case 1:03-cv-01711-TFH Document 72-3 Filed 05/29/07 Page 6 of 6 U nited States Deparment of the Interior OFFICE OF THE SECRETARY Washington, D.C. 20240. MAY 2 5 2007 Memorandum To: Jeanette Hana Regional Director, Eastern Oklahoma Region Bureau of Indian Affairs From: Car~ J. ~ ~ -: AsS~~~S Subject: Approval of Procedures for Selecting the Pricipal Chief of the Cherokee Nation After consulting with you and attorneys in the Solicitor's Office, I approve the procedures for selecting the Principal Chief of the Cherokee Nation that the Nation has provided us. Please advise the appropriate trbal offcials of my approva1. Declaration of Carl J. Artman Attachment B