--- Am. Tribal Law ----, 2018 WL 3854159 (Cherokee Sup.Ct.)
Supreme Court of the Cherokee Nation.
KIMBERLIE GILLILAND, Appellant,
CHEROKEE NATION, Appellee.
CASE NO.: SC-17-08
Dated this August 13, 2018.
Appeal from District Court Case of the Cherokee Nation
Case No. CRM-16-54
Honorable T. Luke Barteaux, Trial Judge
Attorneys and Law Firms
Appellant: Chad Smith for Kimberlie Gilliland, 22902 S. 494 Rd, Tahlequah, Ok 74464, Ph (918) 453-1707, firstname.lastname@example.org
Appellee: Diane Hammons for Cherokee Nation, P.O. Box 141, Tahlequah, Ok 74465, email@example.com
Before: John C. Garrett, Chief Justice James G. Wilcoxen, Justice Angela Jones, Justice Lynn Burris, Justice Mark L. Dobbins, Justice
James Wilcoxen, Justice
THIS MATTER comes before the Court on appeal challenging jurisdiction of the Cherokee District Court to hear a criminal complaint against Kimberlie A. Gilliland, a citizen of the Cherokee Nation. Gilliland worked for the Cherokee Nation Foundation, a not-for-profit Cherokee entity which provides education assistance to qualifying Cherokee students. Gilliland challenges a District Court order entered on October 11, 2017, finding that it has jurisdiction over Gilliland for an alleged embezzlement of Foundation funds. The District Court relies on the definition of Indian country in 18 U.S.C. § 1151 (a) and federal case law defining “Indian country.”
It is Gilliland’s argument that the Cherokee Nation has not formally extended its jurisdiction to fee lands within its former reservation. Gilliland argues that the constitution and statutes of the Tribe as well as its past conduct indicate that the Tribe’s jurisdiction is limited to lands held in trust for the Tribe, restricted allotments, and dependent Indian communities.
Article II of the Cherokee Constitution of 1999 defines the territorial jurisdiction of Tribe:
Territorial Jurisdiction. The boundaries of the Cherokee Nation territory shall be those described by the patents of 1938 and 1948 diminished only by the Treaty of July 19, 1866, and the Act of March 3, 1893.
Article VII § 6 further provides that District Court jurisdiction is general:
The District Courts of the Cherokee Nation shall be courts of general jurisdiction and shall be vested with original jurisdiction, not otherwise reserved to the Supreme Court, to hear and resolve disputes arising under the laws or Constitution of the Cherokee Nation in both law and equity, whether criminal or civil in nature.
Reading these two constitutional provisions together, there does not appear to be any acknowledgment of a self-imposed limitation on jurisdiction. Title 20, Sections 24 and 25, likewise do not purport to limit the jurisdiction allowed under the Cherokee Constitution.
Clearly, each case must be approached on its facts and Cherokee jurisdiction is not unlimited. Notwithstanding, the District Court does have jurisdiction over crimes of this nature which violate Cherokee law committed by Cherokee citizens within the historical boundaries of the Tribe. Murphy v. Royal, 866 F.3d., 1164 (10th Cir. 2017); Duro v. Reina, 494 U.S. 676 (1990).
In this case, Gilliland as a tribal member and employee of the Foundation subjected herself to Cherokee criminal law. The board members of the Foundation are appointed by the Chief and approved by the council. The Foundation receives substantial funding from the Tribe. Its activities are located within the historical boundaries of the Tribe and in this case its headquarters is located in Tahlequah, the traditional capital of the Cherokee Nation. All of this speaks to the fact that this conduct if true can arguably be said to have affected the Tribe’s right to govern itself thereby subjecting Gilliland to tribal jurisdiction. The Cherokee Nation can prosecute the criminal conduct of its voluntary membership for crimes occurring within the boundaries of its undiminished territory. Duro v. Reina, 494 U.S. 676 (1990). Personal jurisdiction over the criminal conduct of a tribe’s members may extend even to areas outside of Indian country. Kelsey v. Pope, 809 F.3d 849 (6th Cir. 2015). Because Gilliland is a member and her alleged conduct can arguably be said to undermine tribal self-government or internal relations, the District Court has jurisdiction here.
Finally, Gilliland complains that she is unconstitutionally being subjected retroactive prosecution. To the contrary, the tribal statutes and constitution were in effect long before her alleged conduct took place. She would be hard pressed to prevail on an argument that as a member she did not know that she might be subject to the laws of by the Cherokee Nation.
THEREFORE, IT IS HEREBY ORDERED that the Opinion of the District Court is affirmed.
Certificate of Mailing
I, Kendall Bird, certify that on the 13th day of August, 2018, I mailed, emailed and/or faxed a true copy of the above and foregoing to the following:
Chad Smith, firstname.lastname@example.org
Diane Hammons, email@example.com
Judge Barteaux, via email
Kristi Moncooyea, via email
Kendall Bird, Court Clerk
John C. Garrett, Chief Justice
Angela Jones, Justice
Lynn Burris, Justice
Mark Dobbins, Justice
--- Am. Tribal Law ----, 2018 WL 3854159