6 Okla. Trib. 349, 1997 WL 33477675 (Cherokee)
Cherokee Nation Judicial Appeals Tribunal.
Paula HOLDER et al., Plaintiffs,
v.
Joe BYRD, Principal Chief; James “Garland” Eagle, Deputy Chief; Tribal Council Members Mary Cooksey, Barbara Conness, Don Crittenden, Bill John Baker, Charles “Chuck” Hoskin, Dora Mae Watie, Harold “Jiggs” Phillips, Sam Ed Bush, and Harley Terrell; and James Fields, Area Director of the Bureau of Indian Affairs, Defendants.
No. JAT–97–14.
April 24, 1997.
Syllabus*
On February 25, 1997, seeking evidence of illegal activity and acting pursuant to a valid search warrant, Cherokee Nation Marshals searched various offices at the Nation’s Complex in Tahlequah, Oklahoma, and made copies of various records housed at the Complex; the original documents remained in their original locations. Joe Byrd, Principal Chief of the Nation, subsequently attempted to fire the Marshals, but Chief Byrd’s actions were held to be invalid by the Nation’s Judicial Appeals Tribunal. The Tribunal’s decision, however, went unrecognized by Chief Byrd. At an April 15, 1997 Tribal Council meeting, the validity of which was challenged in the instant case (based, inter alia, on the asserted lack of a quorum), a majority of Council members present voted to request the Bureau of Indian Affairs to assume law-enforcement duties within the Nation. The same day, Plaintiffs filed this action with the Judicial Appeals Tribunal seeking the issuance of an emergency temporary restraining order and related declaratory and injunctive relief preventing Defendants from taking any action pursuant to resolutions purportedly adopted at the challenged April 15 meeting. That Court, per Birdwell, C.J., held that it had jurisdiction over the matter; that the challenged meeting was in fact invalid; and that actions purportedly taken at the meeting were, in consequence, legally void.
PRELIMINARY INJUNCTION AWARDED IN FAVOR OF PLAINTIFFS.
Further proceedings in related cases are reported under various captions at 5 Okla. Trib. 301 (Cherokee 1997); 6 Okla. Trib. 366, 369, 372, 375, 378, 384, 391, and 405 (Cherokee 1997); 6 Okla. Trib. 418, 424, 454, 522, 527, and 573 (Cherokee 1998); and 7 Okla. Trib. 141 (Cherokee 2000).
1.1.2. Tribal Court Jurisdiction (tribal law)
1.3.1. Powers of Elected Legislative or Legislative/Executive Branch
1.4. Separation of Powers
Judicial Appeals Tribunal of Cherokee Nation has power to declare null and void purported actions of Nation’s “Council” where such actions were taken at meeting of Council members without quorum of Council members present.
1.3.1. Powers of Elected Legislative or Legislative/Executive Branch
3. Interpretation of Tribal Constitutions
Council of Cherokee Nation is prohibited by Article V, Section 4 of Nation’s Constitution from conducting any business without at least ten of the fifteen Council members present at a duly-called regular or special meeting.
1.3.1. Powers of Elected Legislative or Legislative/Executive Branch
3. Interpretation of Tribal Constitutions
Council of Cherokee Nation may not convene in special meeting without complying with “timing-of-meeting” requirements of Article V, Section 5 of Nation’s Constitution.
1.3.1. Powers of Elected Legislative or Legislative/Executive Branch
3. Interpretation of Tribal Constitutions
23.1. Constitutionality of Tribal Statutes or Ordinances
Purported meeting of “Cherokee Nation Council” conducted without quorum on April 15, 1997 was not a valid Council meeting, and actions taken at that meeting are without legal effect and void.
1.1.30.1. Temporary Relief
Requirements for issuance of preliminary injunction in Cherokee Nation’s courts include: (1) reasonable chance of success on the merits; (2) immediate harm; (3) no adequate remedy at law; (4) irreparable harm; and (5) balancing of interests of parties and the public.
Diane Blalock appeared on behalf of Plaintiffs.
Jim Wilcoxen appeared on behalf of the Cherokee Nation Marshalls.
Chadwick Smith appeared as Amicus Curiae.
Rex Earl Star filed a document challenging the Court’s jurisdiction on behalf of Defendants Byrd and Eagle.
Clifford A. Wright filed a document challenging the Court’s jurisdiction on behalf of Defendants Cooksey, Conness, Crittenden, Baker, Hoskin, Watie, Bush, and Terrell.
Defendant Phillips appeared pro se.
Justice BIRDWELL delivered the Opinion of the Court, in which Chief Justice KEEN and Justice VILES join.
BIRDWELL
I. FACTS
On April 15, 1997, approximately 40 individual Cherokee citizens and Council members [“Plaintiffs”] filed a document styled “Complaint and Application for Emergency Temporary Restraining Order” [“Complaint”].
In that Complaint, the Plaintiffs alleged that the Defendants, Joe Byrd, Principal Chief; James “Garland” Eagle, Deputy Chief; and Mary Cooksey, Barbara Conness, Don Crittenden, Bill John Baker, Charles “Chuck” Hoskin, Dora Mae Watie, Harold “Jiggs” Phillips, Sam Ed Bush and Harley Terrell, Council members [“Defendants”], participated in an illegally constituted session of the Tribal Council on April 15, 1997. In the meeting, the Defendants voted, among other things, to request the Bureau of Indian Affairs to assume law enforcement duties within the Cherokee Nation. At its conclusion, a recess was voted upon and approved, with the meeting to reconvene on April 28, 1997. James Fields, Area Director of the Bureau o£ Indian Affairs, was [also] named as a Defendant.
The Plaintiffs assert that the meeting of April 15, 1997, was illegal because it violated the Cherokee Constitution. The bases for the argument that the meeting was illegal were that because only nine members of the 15–member Council were present for the session, a quorum was not present, and that a 10–day notice was not given calling the session. At the hearing on April 21, 1997, the Court was informed that the absent Council members received no notice whatsoever of the April 15, 1997 meeting.
The Plaintiffs requested a temporary restraining order against the Defendants from taking any action pursuant to the resolutions approved during the April 15, 1997 Tribal Council special session. Furthermore, the Plaintiffs ask this Court for a declaratory judgment finding that the session was an illegal meeting, void and without legal effect, and that any matters flowing out of the meeting are of no effect.
After careful consideration of the Complaint and allegations set forth, Chief Justice Ralph F. Keen decided that a temporary restraining order was justified, issued it, and set a hearing on April 21, 1997, at 1:30 p.m., at which time the Defendants were to appear and show cause why the temporary restraining order should not be converted to a preliminary injunction pending a resolution of all the issues in this case.
On April 21, 1997, the Judicial Appeals Tribunal conducted a hearing on this matter. Appearing for the Plaintiff was Diane Blalock, Tribal Prosecutor. Jim Wilcoxen, the attorney appointed to represent the Cherokee Nation Marshal Service, appeared on behalf of his clients insofar as they had an interest in this matter. Chadwick Smith, tribal member and attorney-at-law, filed a document styled “Application to File Amicus Brief.” Mr. Smith’s application was granted, and he also appeared at the hearing.
Neither the Defendants nor their counsel appeared at the hearing. They instead filed two substantially identical documents styled “Special Appearance Contesting Jurisdiction of the Court.” Rex Earl Starr signed the document on behalf of Principal Chief Joe Byrd and Deputy Chief James “Garland” Eagle. Clifford A. Wright signed the document for Mark Cooksey, Barbara Conness, Don Crittenden, Bill John Baker, Charles “Chuck” Hoskin, Dora Mae Watie, Sam Ed Bush and Harley Terrell. These pleadings were filed without any briefs or citations of legal or equitable authority relied upon by the Defendants or their legal counsel in support of their respective positions.
Council member Harold “Jiggs” Phillips, one of the Defendants, appeared pro se at the hearing of April 21, 1997, and asked to be dismissed. The basis for this request was the fact that he had advised the other eight Council members who appeared at the meeting, and Deputy Chief Eagle, the chair, who also appeared at the special meeting, that a quorum, as designed and required by the Cherokee Constitution, was not present, and therefore, that no business could be conducted. In support of his arguments, Council member Phillips produced a copy of the minutes of the April 15, 1997 Council meeting, which did in fact reflect his admonishment to the other Council members and to Deputy Chief Eagle that the proposed meeting was in violation of the Cherokee Constitution. Based upon his request, and there being no opposition from the Plaintiffs, Council member Phillips was dismissed from this action. James Fields, Area Director of the Bureau of Indian Affairs, did not appear.
The Court took the special appearances under advisement as well as the request for preliminary injunction. The request for a declaratory judgment will be considered at a later time.
II. DISCUSSION
A. Jurisdiction
This Court is dismayed with the Defendants’ argument that the Judicial Appeals Tribunal does not have jurisdiction over them in their official capacities or duties. We are more than dismayed with their legal counsel, who failed to provide the Court with any authority whatsoever in support of the position taken by their clients in the special appearances. This may be an admission that no such legal or equitable authority exists which would support the arguments of the Defendants. Regardless, this Court has no choice but to disregard these unusual pleadings. In the future, lawyers filing motions or other pleadings with this Court that contain unique arguments are urged to file briefs and provide references to legal authorities that support their positions. Under the Federal Rules of Civil Procedure [FRCP] adopted by this Court, there is no such pleading as a special appearance.
The Cherokee Nation Constitution is the highest legal authority within the Cherokee Nation. Article VII of the Constitution provides for the Judicial Appeals Tribunal. It states in part:
The purpose of this Tribunal shall be to hear and resolve any disagreements arising under any provisions of this Constitution or any enactment of the Council.
CHEROKEE CONST. art. VII (emphasis added).
Clearly, pursuant to the Cherokee Nation Constitution, this Court has the jurisdiction to determine this controversy, and also has jurisdiction over the Principal Chief, Deputy Chief, and Council members in order to bring about a resolution of such dispute.
THEREFORE, THIS COURT FINDS that it has jurisdiction in this matter and jurisdiction over the Principal Chief, Deputy Chief and the Council members pursuant to the Cherokee Constitution, especially when the subject of the matters includes resolving “any disagreements under the Constitution” or “any enactment of the Council.”
It would defy all logic, common sense and reality to argue that the framers of the Constitution, and the Cherokee citizens who approved it, would have intended the highest Court in the Cherokee Nation to not have jurisdiction over controversies arising out of the conduct of the Principal Chief, Deputy Chief, and Council members while acting in their official capacities. THE SPECIAL APPEARANCES CONTESTING JURISDICTION OF THE COURT ARE HEREBY DISREGARDED, AND SINCE DEFENDANTS ELECTED TO STAND ON THESE TWO PLEADINGS, THEY ARE DEEMED TO BE IN DEFAULT BY REASON OF THEIR FAILURE TO APPEAR. SeeFRCP 7(c).
B. Preliminary InjunctionThe Plaintiffs have requested a preliminary injunction enjoining the Defendants from taking any action as a result of the purported Council meeting of April 15, 1997. Before the request for a preliminary injunction is considered, the relevant provisions of the Cherokee Constitution relating to regular, special, and extraordinary Council meetings must be analyzed.
As to regular Council meetings, Article V, Section 4 provides in part:
No business shall be conducted by the Council unless at least two-thirds (2/3) of the members thereof regularly elected and qualified shall be in attendance, which number shall constitute a quorum.
CHEROKEE CONST. art. V, § 4 (emphasis added). This provision is clear and unambiguous. It means exactly what it says: no business can be conducted by the Council unless two-thirds, or 10 members are present of the total 15–member Council. In essence, a quorum is defined as the presence of at least 10 Council members.
Special Council meetings are authorized by Article V, Section 5, as follows:
Special meetings of the Council may be called: (A) by the Principal Chief, (B) by the Deputy Principal Chief when he has the full powers of the Principal Chief as elsewhere defined, (C) upon written request of fifty-one percent (51%) of the members of the Council, or (D) upon the written request of ten percent (10%) of the registered voters of the Cherokee Nation. The purpose of said meeting shall be stated in a notice published not less than ten (10) days prior to the meeting and the Council may not consider any other subject not within such purposes. No special meetings may convene until thirty (30) days have elapsed after the adjournment of a prior session or meeting unless called pursuant to (A) and (B) above.
CHEROKEE CONST. art. V, § 5 (emphasis added).
This section is also unambiguous. It prohibits any special Council meeting unless notice and an agenda are published at least 10 days prior to the special meeting. It is important to note that in Article V, Section 5, the Council may only convene a special meeting when 30 days have elapsed after the adjournment of a prior session or meeting. However, the same restriction does not apply to the Principal Chief or Deputy Chief, when acting as Principal Chief. A special meeting may be called by those officers when only 10 days have elapsed after the adjournment of the last meeting. The 10 day requirement is due to the constitutional mandate of publishing notice of the meeting, and the purposes (agenda) therefor. Naturally, without an agenda, no meeting of the Council or any committee thereof may occur. Moreover, only matters on the agenda can be considered, unless new or additional items brought before such Council or committee meeting are insignificant and have no substantial impact on the business of the Cherokee Nation. Article VI, Section 8, states:
The Principal Chief may on extraordinary occasions convene the Council at the seat of government pursuant to Article V, Section 5, and such notice and other laws as may be prescribed by the Council. The purpose of said meetings must be stated and the Council may consider only such matters as are specified in the call of the extraordinary meetings. Before the extraordinary meetings may be legally sufficient to conduct business, a quorum of the Council must be present.
CHEROKEE CONST. art. VI, § 8 (emphasis added).
Obviously, this section is a further definition of the circumstances under which the Principal Chief or Deputy Chief may call meetings as provided for in Article V, Section 5. It can only be read and applied as an extension of Article V, Section 5, and cannot be interpreted as a separate grant of power or as a broader grant of power than already provided. In other words, the Principal Chief or Deputy Chief may call meetings under special or extraordinary circumstances, but the requirements of Article V, Section 5 must be satisfied, and a quorum of the Council must be present before any business can be conducted. Article VI, Section 8 cannot, under any circumstances, be construed as standing alone so as to permit a special or extraordinary meeting until at least 10 days hove passed since the adjournment of the last meeting. Moreover, notice of the meeting and the purposes (agenda) must be published at least 10 days prior thereto, and a quorum must be present to address the business at hand.
At this point, the question must be answered as to what constitutes a quorum for special or extraordinary meetings. Article V, Section 4, of the Cherokee Constitution defines a quorum as the presence of at least two-thirds (10) members of the 15–member Council. While this constitutional Article and Section deals with regular meetings, it is obvious, for definition purposes, that the Cherokees who drafted and ratified the Constitution intended for the word “quorum” to mean, for all purposes, the presence of at least 10 Council members. Therefore, no Council meeting, whether regular, special or extraordinary, may take votes unless 10 of the 15 Council members are present.
It has been suggested that inasmuch as 19 C.N.C.A. § 35 permits the use of Robert’s Rules of Order, then it is not required that 10 members of the Council be present at special or extraordinary meetings. Under certain limited, specified circumstances, Robert’s Rules of Order provide that a simple majority of those present may act. It is important to note that 19 C.N.C.A. § 35 further provides that the use of Robert’s Rules of Order is prohibited when such use would violate or conflict with the Cherokee Constitution. Here, the conflict is obvious, because the Constitution requires the presence of 10 members, rather than a simple majority, to constitute a quorum. Therefore, the use of Robert’s Rules of Order is inapplicable in this or in any other situation where such use would violate the Cherokee Constitution. See Cornsilk v. Cherokee Nation Tribal Council, Case No. JAT–96–15[, 5 Okla. Trib. 185, 190–91 (Cherokee 1996) ].
Inasmuch as the required 10 day notice was not published for the Council meeting of April 15, 1997, and having further determined that a quorum was not present, THIS COURT HAS, AT THIS TIME, NO CHOICE BUT TO FIND THAT ALL DECISIONS RENDERED AT SUCH MEETING ARE VOID AND ILLEGAL, INCLUDING THE CALL FOR A MEETING ON APRIL 28, 1997. Moreover, since the meeting of April 15, 1997 was recessed and not adjourned, THIS COURT FURTHER FINDS THAT NO OTHER SPECIAL OR EXTRAORDINARY COUNCIL MEETING CAN BE CONVENED FOR A PERIOD OF AT LEAST 10 DAYS FROM AND AFTER April 28, 1997. This is the earliest date the illegal meeting of April 15, 1997, would have been officially adjourned had the meeting of April 28, 1997, occurred. Consequently, the earliest date any future special or extraordinary meetings can legally occur is May 8, 1997.The requirements for the issuance of a preliminary injunction include the following:
1. likelihood of prevailing on the merits;
2. immediate harm;
3. no adequate remedy at law;
4. irreparable harm; and
5. balancing of interests, including that of the public.
See Glenn v. Fox, 853 P.2d 779 (Okla.App.1993); Great Lakes Higher Education v. Cavazos, 698 F.Supp. 1464 (W.D.Wis.(1988); Roberts v. Van Buren, 731 F.2d 523 (8th Cir.1984); Westinghouse v. Dukakis, 409 F.Supp. 895 (Mass.1976); Sunray v. Cortez, 188 Okla. 690, 112 P.2d 792 (1941); 42 AM.JUR. Injunctions § 1 et seq.
A threshold question in issuing a preliminary injunction includes: Is there a likelihood that the claimant will prevail on the merits? All that is required is a showing of a reasonable chance of success on the merits.
The Plaintiffs, in presenting their arguments pursuant to the Cherokee Nation Constitution and Cherokee Nation and United States Supreme Court case law, have shown this Court that they have an almost assured likelihood of prevailing on the merits. Therefore, the first requirement is satisfied.
The next requirement is whether there an immediate threat of injury or harm. Have the Plaintiffs shown some evidence that a right is about to be violated? An injunction is never granted based upon mere apprehension of injury, nor where the injury is nominal or speculative. Immediate is the operative word.
The Plaintiffs as Cherokee citizens (and some of whom are Council members) do have a serious threat of injury. The meeting of April 15, 1997 was in fact illegal, and the business conducted at that meeting is void. Any person acting upon the business of that meeting could damage the individual members of the Cherokee Nation, as well as the Nation as a whole. The Defendants, acting pursuant to the business conducted in that meeting, would bring immediate harm.
The requirements that the Plaintiffs make a showing of no adequate remedy at law and show irreparable harm will be discussed together. These requirements are generally proved by a showing that an injury or right violated is of such a nature that it cannot be adequately compensated by damages. Furthermore, if the injury is such that it is continuing or permanent, and cannot be remedied any other way, it is ripe for injunction.
The circumstances of the instant case most definitely warrant injunctive relief. The issue is not money, but whether elected officials who, by oath, have sworn to uphold the Constitution and laws of the Cherokee Nation, can conduct business without the required notice and the constitutionally-mandated quorum. If the purported meeting was illegal, then anyone acting upon the business conducted at such meeting would injure the tribal members of the Cherokee Nation in a way that money damages would not remedy.
THEREFORE, THIS COURT DETERMINES that there is no adequate remedy at law, and that irreparable harm will occur to the Plaintiffs if injunctive relief is not granted.
The last requirement is to balance the interests of the parties along with a recognition of possible harm, if any, to the public’s interest.
The hardships in this matter clearly favor the Plaintiffs. These Defendants, elected officials, have violated the Constitution by meeting and conducting business illegally, and the tribal members individually stand to lose. Moreover, the public interest of the Cherokee Nation is paramount to any other. Indeed, since the Council has met illegally, the public interest of the Cherokee Nation has and will suffer greatly.
Therefore, all requisites of issuing a preliminary injunction being met, and the Defendants having due and proper notice of this proceeding, THIS COURT HEREBY FINDS the situation being grave to the citizens of the Cherokee Nation, and ISSUES A PRELIMINARY INJUNCTION.
The Defendants in this action, Joe Byrd, Principal Chief; James “Garland” Eagle, Deputy Chief; and Mary Cooksey, Barbara Conness, Don Crittenden, Bill John Baker, Charles “Chuck” Hoskin, Dora Mae Watie, Sam Ed Bush and Harley Terrell, Council members; ARE HEREBY ENJOINED FROM ACTING UPON ANY AND ALL BUSINESS THAT WAS VOTED ON, DISCUSSED OR OTHERWISE BEFORE THE COUNCIL AT THE APRIL 15, 1997, COUNCIL MEETING. DEFENDANTS ARE FURTHER ENJOINED FROM CONDUCTING ANY SPECIAL OR EXTRAORDINARY MEETINGS PRIOR TO MAY 8, 1997, FOR THE REASONS SET FORTH ABOVE.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this injunction shall remain in full force and effect until a full hearing and/or trial on the merits can be had, or by further order of this Court. A TRIAL ON THE MERITS IS HEREBY SET FOR MAY 28, 1997, AT 1:30 O’CLOCK P.M. However, this matter appears “ripe” for motions for summary judgment. Therefore, if any of the parties to this dispute were to file such motions, then it is possible that a trial on the merits might be eliminated.
IT IS SO ORDERED.
All Justices Concur.
Footnotes |
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The syllabus and headnotes comprise no part of the opinion of the Court, and are prepared for the convenience of the reader by the Editor of OKLAHOMA TRIBAL COURT REPORTS. |
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