ARTICLE VII [JUDICIAL BRANCH]

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ARTICLE VII [JUDICIAL BRANCH]Section 1. [Courts]. 2. [Supreme Court]. 3. [Appellate procedures]. 4. [Chief Justice; sessions]. 5. [Decisions]. 6. [Litigation between Tribal Officers].

Section headings are editorially supplied.

§ 1. [Courts]

The Judicial power of The Muscogee (Creek) Nation shall be vested in oneSupreme Court limited to matters of The Muscogee (Creek) Nation’s jurisdic-tion and in such inferior courts as the National Council may from time to timeordain.

Cross References

District Court, see Title 26, § 2–101 et seq.

Library ReferencesIndians O214.Westlaw Topic No. 209.C.J.S. Indians § 59.

Notes of DecisionsAttorney’s fees 27Burden of proof 18Collateral attack 19Constitution, interpretation 6Construction and application 1Contempt 25Declaratory relief 22Discovery 17Distribution of tribal judicial powers 9Federal case law as precedent 8Federal law, jurisdiction 4Inherent powers, generally 2Injunctions 23Interpretation of constitution, orders and reso-

lutions 6Interpretation of treaties, jurisdiction 5Judicial notice 7Jurisdiction 3-5

In general 3Federal law 4Treaty interpretation 5

Justiciability 13Mandamus and prohibition 24Mootness 12Notice and service of process 15Orders, interpretation 6Practice of law 10Pretrial procedure 14Prohibition and mandamus 24

Recusal 16Remedies, generally 20Resolutions, interpretation 6Seizure 26Service of process 15Standing 11Temporary relief 21Treaty interpretation, jurisdiction 20

1. Construction and application[T]he Court finds Petitioner’s Application is

not ripe for appellate review and that the Courtwill not exercise original jurisdiction in thiscase. The Court notes that this action wouldhave been more properly brought before theDistrict Court, where a Special Judge would beappointed to hear it. Muscogee (Creek) NationNational Council and Trepp v. Muscogee (Creek)Election Board, A.D. Ellis and Muscogee (Creek)Constitutional Convention Commission, SC09–10 (Muscogee (Creek) 2009)

The Supreme Court finds that the Appellantsfailed to establish a right to intervene in theproceeding below. The District Court’s dismissalof Appellant’s oral Motion to Intervene is there-fore affirmed. Johnson and Johnson v. MuscogeeCreek Nation and Muscogee (Creek) Administra-

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CONSTITUTIONArt. VII, § 1Note 1

tion Review Board, et al., SC 07–03 (Muscogee(Creek) 2009)

This Court has jurisdiction to hear the abovestyled case in accordance with the Muscogee(Creek) Nation Constitution. This dispute in-volves the citizens of the Nation and elections asheld in accordance with the Muscogee (Creek)Constitution. Harjo v. Muscogee (Creek) NationElection Board, SC 07–50 (Muscogee (Creek)2007)

The Muscogee (Creek) Nation Constitution isthe Supreme Law of the Muscogee (Creek) Na-tion and allows for the reapportionment. Harjov. Muscogee (Creek) Nation Election Board, SC07–50 (Muscogee (Creek) 2007)

[T]he Muscogee (Creek) Nation’s Constitutiontakes precedence over all laws and ordinancespassed by the National Council. Harjo v. Musco-gee (Creek) Nation Election Board, SC 07–50(Muscogee (Creek) 2007)

The Court decided it had judicial power torender its decision in that case, not based on aspecific grant of power, but on the impliedpowers derived from examination of the UnitedStates Constitution. See Marbury v. Madison, 1Cranch, 137. The Court then decided, while notfollowing United States law, the United StateSupreme Court’s decision was persuasive inas-much as it was the opinion of the court that theMuscogee Nation Constitution was modeled af-ter the U.S. Constitution as to the separation ofpowers doctrine. Ellis v. Muscogee (Creek) Na-tional Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The Muscogee Nation Supreme Court wascreated by the Muscogee Nation Constitutionand as such it is subject to those limitationscontained in the Constitution. Ellis v. Muscogee(Creek) National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

The Supreme Court has the power to enforceits orders, and judgments subject to the rules ofprocedure as to ‘‘due process’’ which it hasadopted. Ellis v. Muscogee (Creek) NationalCouncil, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

Indian tribes were not made subject to theBill of Rights. However, the laws of the Musco-gee Nation are subject to the limitation imposedupon the tribal governments by the Indian CivilRights Act of 1968, as amended, found at 25U.S.C. § 1301 et seq. This limits the powers oftribal governments by making certain provi-sions of the Bill of Rights applicable to tribalgovernments. Ellis v. Muscogee (Creek) NationalCouncil, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The Judicial Branch of the Muscogee (Creek)Nation, like the Executive Branch and the Na-tional Council, is a Constitutional body and aco-equal branch to the Legislative and Execu-tive branches of this Nation. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

Due Process allows for a court to have acertain amount of discretion in fashioning indi-rect civil contempt sanctions as long as thesanction(s) imposed has comported with notionsof fair play and justice. Ellis v. Muscogee (Creek)Nation National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

Courts are required to hear actual cases andcontroversies and not hypothetical ones. How-ever, the U.S. Supreme Court has stated a veryimportant exception to this rule: if a case iscapable of repetition, yet evading review, theCourt should and could hear and decide thecase. Oliver v. Muscogee (Creek) National Coun-cil, SC 06–04 (Muscogee (Creek) 2006)

In cases of original jurisdiction such as theinstant case, the duty of this Court is to inter-pret the laws and determine what statutes areconstitutional or unconstitutional-it is not theNational Council’s duty to make such determi-nations. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

The Constitution of the Muscogee (Creek) Na-tion ‘‘must be strictly construed and interpretedand where the Constitution speaks in plain lan-guage with reference to a particular matter, theCourt must not place a different meaning on thewords.’’ (Citing Cox v. Kamp, 4 Mvs. L. Rep. 75(Muscogee (Creek) 1991)) Ellis v. Muscogee(Creek) Nation National Council, SC 05–03/05(Muscogee (Creek) 2006)

TTT the Court is also mindful of as our role asarbitrator of disputes and there are times thatadditional clarification to the Constitutionmeaning is needed. Ellis v. Muscogee (Creek)Nation National Council, SC 05–03/05 (Musco-gee (Creek) 2006)

The Courts of this Nation exercise generalcivil jurisdiction over all civil actions arisingunder the Constitution, laws or treaties whicharise within the Nation’s Indian country, re-gardless of the Indian or non-Indian status ofthe parties. 27 Muscogee (Creek) Nation Code.Ann. § 1–102(B)(Civil Jurisdiction). Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)

[T]he Nation’s courts possess civil adjudicato-ry jurisdiction over forfeiture proceedings in-cluding the forfeiture of (1) controlled danger-ous substances; (2) vehicles used to transport orconceal controlled dangerous substances; and(3) monies and currency found in close proximi-ty of a forfeitable substance. Muscogee (Creek)Nation v. One Thousand Four Hundred SixtyThree and 14/100; Methamphetamine; and a2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)

Under traditional Mvskoke law controversieswere resolved by clan Vculvkvlke (elders). Theirintegrity was considered beyond reproach. Theywere obligated by the responsibilities of theirposition to decide cases fairly, and honestly,regardless of clan or family affiliation. In Re:

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JUDICIAL BRANCH Art. VII, § 1Note 1

The Practice of Law Before the Courts of theMuscogee (Creek) Nation, SC 04–02 (Muscogee(Creek) 2005)

Fairness by judges to all is essential to main-tain and foster respect for the tribal courts. InRe: The Practice of Law Before the Courts of theMuscogee (Creek) Nation, SC 04–02 (Muscogee(Creek) 2005)

The responsibility to perform judicial dutieswith impartiality extends to all cases and allpersons before the Mvskoke Courts, whetherMvskoke citizens or others, and regardless ofdegree of relationship to the Judge. This is trueunder both Traditional Mvskoke law or underthe Code of Conduct for Judges. In Re: ThePractice of Law Before the Courts of the Musco-gee (Creek) Nation, SC 04–02 (Muscogee (Creek)2005)

Article VII of the Constitution of the Musco-gee (Creek) Nation which establishes and de-fines the judicial branch of the Creek govern-ment contains all that is said regarding theSupreme Court and Inferior Courts. Bruner,d/b/a Chebon’s Indian Smoke Shop v. Muscogee(Creek) Nation, ex rel. Creek Nation Tax Commis-sion, SC 86–03 (Muscogee (Creek) 1987)

Nothing therein [Article VII of the Muscogee(Creek) Nation Constitution] mandates that saidJustices and Judges shall be full citizens of theMuscogee (Creek) Nation and as is specificallyset forth and provided for in the articles thatpertain to the elected offices of Chief, SecondChief, and members of the National Council.Bruner, d/b/a Chebon’s Indian Smoke Shop v.Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)

Article III, Section 4 of the Constitution of theMuscogee (Creek) Nation, and wherein thephrase appears: ‘‘All Muscogee (Creek) Indiansby blood, who are less than one-fourth Musco-gee (Creek) Indian by blood, shall be consideredcitizens and shall have all rights of entitlementas members of the Muscogee (Creek) NationEXCEPT THE RIGHT TO HOLD OFFICE’’, isconstrued to be of a general nature and applica-tion, and, therefore, subordinate to Article IIIwhich is controlling. [emphasis in original].Bruner, d/b/a Chebon’s Indian Smoke Shop v.Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)

From the use of the language, ’except theright to hold office’, the clear intent of theframers of our Constitution is evident since ap-pointments to office are not held as a matter ofright, but exit as an honor, and a privilege; andsaid language only applies to the elective officesof Chief, Second Chief and members of theNational Council. Bruner, d/b/a Chebon’s IndianSmoke Shop v. Muscogee (Creek) Nation, ex rel.Creek Nation Tax Commission, SC 86–03 (Mus-cogee (Creek) 1987)

The Supreme Court is a necessary and sepa-rate branch of the Muscogee (Creek) Nation

instilled with the Judicial Authority and powerof the Muscogee (Creek) Nation. Done in Confer-ence, October 31, 1986 (Muscogee (Creek) Nation(1986))

The continued operation of the Court is ofextreme importance and necessary for the pres-ervation of the rights of all of the citizens of thetribal government of the Muscogee (Creek) Na-tion. Done in Conference, October 31, 1986 (Mus-cogee (Creek) Nation (1986))

The power and authority of this Court will notbe decreased nor will this Court be diminishedby any other branch of the tribal government byits failure to perform its duties and obligationsunder the constitution of the Muscogee (Creek)Nation and this Court finds that the Justices ofthis Court should retain their position and con-tinue to perform the duties of Justice of thisSupreme Court until their successors shall beduly qualified. Done in Conference, October 31,1986 (Muscogee (Creek) Nation (1986))

It is THEREFORE ORDERED, ADJUDGEDAND DECREED that each Justice of the Su-preme Court of the Muscogee (Creek) Nationshall and do retain their position and authorityand shall continue to serve as Justice until theirsuccessor is duly qualified. Done in Conference,October 31, 1986 (Muscogee (Creek) Nation(1986))

Since this Nation’s establishment of a consti-tutional form of government in 1867, Mvskokelaw is ruled upon by appointed Judges, but theobligation under traditional Mvskoke law re-main in effect. In Re: The Practice of Law Beforethe Courts of the Muscogee (Creek) Nation, SC04–02 (Muscogee (Creek) 2005)

The Muscogee (Creek) Nation has the powerto establish Tribal Courts with civil and crimi-nal jurisdiction. Muscogee (Creek) Nation v. Ho-del, 851 F.2d 1439, 271 U.S.App.D.C. 212(1988).

Principal Chief of Muscogee (Creek) Nationhas responsibility to nominate, and NationalCouncil to approve, appointments to SupremeCourt of Muscogee (Creek) Nation; failure ofthose branches of government to agree on nomi-nees, however, does not constitute obstructionof justice. O.C.M.A. v. National Council, 1 Okla.Trib. 293 (Musc. (Cr.) D.Ct. 1989).

Pursuant to NCA 89–21103, the Court shallfirst apply tribal ordinances in any legal resolu-tion. If there is no applicable tribal ordinance,then the court may process to apply federal law.If no tribal or federal laws are applicable, thenthe Court shall apply Oklahoma law. Brown andWilliamson Tobacco Corp. v. District Court, 5Okla. Trib. 447 (Muscogee (Creek) 1998).

The Court may at various times, adopt certainfederal or state laws or legal concepts into Mus-cogee Nation case law. When this occurs, wemust note that the Muscogee Nation SupremeCourt is only using federal or state principlesfor the purposes of guidance and is merelyincorporating those laws into our common law.

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Brown and Williamson Tobacco Corp. v. DistrictCourt, 5 Okla. Trib. 447 (Muscogee (Creek)1998).

NCA 82–30 does not provide Supreme Courtwith the power to review non-final orders ex-cept for limited circumstances. Brown and Wil-liamson Tobacco Corp. v. District Court, 5 Okla.Trib. 447 (Muscogee (Creek) 1998).

Adherence to National Council Ordinancesand Muscogee (Creek) Nations Constitutionallimits on this Courts power is required by ourdoctrine of separation of powers. Brown andWilliamson Tobacco Corp. v. District Court, 5Okla. Trib. 447 (Muscogee (Creek) 1998).

Assuming jurisdiction over an appeal that wehave no legislative or constitutional authority tohear would amount to judicial usurpation ofpower. Brown and Williamson Tobacco Corp. v.District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).

It is a fundamental tenant of our case law thateach branch of government remains autono-mous and that each respect the duties of theothers. Brown and Williamson Tobacco Corp. v.District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).

Although federal law may serve as an infor-mative tool of guidance, procedural rules suchas our final order rule are solely matters oftribal law. Brown and Williamson Tobacco Corp.v. District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).

Because there is Muscogee (Creek) Nationcase law on final decision being appealable,there was no need for the court to engage in adetailed analysis of federal final decision opin-ions. Brown and Williamson Tobacco Corp. v.District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).

Because the codes do not specifically discussstandard for mandamus, the Court is free tointerpret its own standards for using writs.Brown and Williamson Tobacco Corp. v. DistrictCourt, 5 Okla. Trib. 447 (Muscogee (Creek)1998).

Our use of any federal authorities consideringthis matter [writs] is limited to review of that ofpersuasive value. Brown and Williamson Tobac-co Corp. v. District Court, 5 Okla. Trib. 447(Muscogee (Creek) 1998).

Whether the Court chooses to adopt legalstandards form other jurisdictions into triballaw and how those standards are interpreted issolely within the realm of the Muscogee (Creek)Nations Supreme Court’s discretion. Brown andWilliamson Tobacco Corp. v. District Court, 5Okla. Trib. 447 (Muscogee (Creek) 1998).

Following the 10th Circuit’s pronouncementin United States v. Roberts, mandamus is not anappropriate remedy when the petitioners haveadequate remedy for appeal. Brown and Wil-liamson Tobacco Corp. v. District Court, 5 Okla.Trib. 447 (Muscogee (Creek) 1998).

An aggrieved party may appeal to this Courtfrom a final judgment entered in an action orspecial proceeding commenced in Tribal Court.Kelly v. Wilde, 5 Okla. Trib. 209 (Muscogee(Creek) 1996).

The Supreme Court has a duty to inquire intoits own jurisdiction. Kelly v. Wilde, 5 Okla. Trib.209 (Muscogee (Creek) 1996).

Court recognizes the concept of comitythrough previous order recognizing judicial pro-ceedings of other sovereigns in the Muscogee(Creek) Nations Full Faith and Credit. Grothausv. Halliburton Oil Producing Co., 4 Okla. Trib.319 (Muscogee (Creek) 1995).

Muscogee (Creek) Nation’s National Counciland not the Principal Chief has general appoint-ment powers under the Constitution of the Mus-cogee (Creek) Nation. Fife v. Health Systems, 4Okla. Trib. 319 (Muscogee (Creek) 1995).

All three branches of government of the Mus-cogee (Creek) Nation have right to employ legalcounsel to assist in accomplishing their consti-tutional responsibilities. Fife v. Health Systems,4 Okla. Trib. 319 (Muscogee (Creek) 1995).

The language of both the Muscogee (Creek)Nation Juvenile and Family Code [NCA 92–119]and the Federal Indian Child Welfare [25U.S.C.S. 1915 (b)] is mandatory regardingplacement of a juvenile and the Court is notpersuaded that a trial judge may deviate fromthe law. In re J.S., 4 Okla. Trib. 187 (Muscogee(Creek) 1994).

Muscogee (Creek)Nation is like Oklahoma Su-preme Court in finding that the trial judge is inthe best position to weight all of the evidenceand absent abuse, the Court will not overturn ordisturb the trial court decision. In re J.S., 4Okla. Trib. 187 (Muscogee (Creek) 1994).

District Court of the Muscogee (Creek) Nationhas jurisdiction to quiet title and ejectmentclaims of tribal members against non-memberswhere the land in question lies within Muscogee(Creek) Indian Country. Enlow v. Bevenue, 4Okla Trib. 175 (Muscogee (Creek) 1994).

Indian Tribes may exercise a broad range ofcivil jurisdiction over the activities of non-mem-ber Indians on Indian reservation and in whichtribes have a significant interest. Enlow v. Be-venue, 4 Okla. Trib. 175 (Muscogee (Creek)1994).

When non-Indian conduct does not affect trib-al interests, tribal jurisdiction lacks. Enlow v.Bevenue, 4 Okla Trib. 175 (Muscogee (Creek)1994).

If one party in a lawsuit is tribal member,interest of tribe in regulating activities of tribalmembers and resolving disputes over Indianproperty are sufficient to confer jurisdiction tothe court. Enlow v. Bevenue, 4 Okla Trib. 175(Muscogee (Creek) 1994).

Supreme Court of the Muscogee (Creek) Na-tion may accept a question of law certified to itby the District Court of the Nation. Reynolds v.

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Skaggs, 4 Okla. Trib. 51 (Muscogee (Creek)1994).

The decision of a Supreme Court Justice toremove himself from a case properly before theSupreme Court is a decision that a Justice canmake always taking into consideration the bestinterests of the Nation. Reynolds v. Skaggs, 4Okla. Trib. 51 (Muscogee (Creek) 1994).

District Court of Muscogee (Creek) Nationhas power to grant writ of replevin for posses-sion of personal property by creditor for non-payment of amounts due. Stedman v. LocalAmerican Bank of Tulsa, 5 Okla. Trib. 548 (Mus-cogee (Creek) 1992).

The Constitution of the Muscogee (Creek) Na-tion must be strictly construed and interpretedand where the Constitution speaks in plain lan-guage with reference to a particular matter, theCourt must not place a different meaning on thewords. Cox v. Kamp, 5 Okla. Trib. 530 (Musco-gee (Creek) 1991).

The duty of the Court is not to merely givedefinition to words within the law, but is as agroup, to determine the intent and scope behindthe words. Cox v. Kamp, 5 Okla. Trib. 530(Muscogee (Creek) 1991).

Court must look to what intent the foundersof the Constitution of the Creek Nation hadwhen using the language they used in draftingthe Constitution. Cox v. Kamp, 5 Okla. Trib. 530(Muscogee (Creek) 1991).

The Muscogee (Creek) Nation Constitution in-tended to incorporate into it the basic parts ofthe separation of powers between the threebranches of government. Cox v. Kamp, 5 Okla.Trib. 530 (Muscogee (Creek) 1991).

Each branch of the government has speciallimitations placed on it. Cox v. Kamp, 5 Okla.Trib. 530 (Muscogee (Creek) 1991).

There must be a balance of powers. Thefounders of the Muscogee (Creek) Constitutiongave unbridled authority to the executivebranch. Cox v. Kamp, 5 Okla. Trib. 530 (Musco-gee (Creek) 1991).

The National Council always has the authori-zation to amend legislation subject only to onePrincipal Chief veto or constitutional validity asdetermined by the judicial branch. Cox v. Kamp,5 Okla. Trib. 530 (Muscogee (Creek) 1991).

Court is aware of a limited range of interlocu-tory appeals are recognized in federal courtsdespite the lack of statutory provisions authoriz-ing them. No such exceptions to the final ruleorder, however, have been articulated in ourcase law. Health Board v. Skaggs and HealthBoard v. Taylor, 5 Okla. Trib. 442 (Muscogee(Creek) 1991).

NCA 89–71 is an ordinance of the Muscogee(Creek) Nation that is constitutional and mustbe followed. National Council v. Cox, 5 Okla.Trib. 513 (Muscogee (Creek) 1990).

Supreme Court of the Muscogee (Creek) Na-tion may direct tribal Chief and other tribalofficers to conform their conduct to validly en-

acted tribal laws. National Council v. Cox, 5Okla. Trib. 513 (Muscogee (Creek) 1990).

Supreme Court of the Muscogee (Creek) Na-tion may appoint District Judge as its referee toconduct fact finding hearing. National Councilv. Cox., 5 Okla. Trib. 512 (Muscogee (Creek)1990).

Judicial branch of Muscogee (Creek) Nationmay retain legal counsel to assist in its responsi-bilities under the tribal Constitution, withoutapproval of other branches, within confines offunds appropriated to judicial branch of govern-ment. Bryant v. Childers, 1 Okla. Trib. 316 (Mus-cogee (Creek) 1989).

Constitution of Muscogee (Creek) Nation es-tablishes judicial branch as necessary and sepa-rate branch of tribal government, and instills inthat branch judicial authority and power ofMuscogee (Creek) Nation. In re Supreme Court,1 Okla. Trib. 89 (Muscogee (Creek) 1986).

Power and authority of Muscogee (Creek) Na-tion’s Supreme Court may not be decreased by,nor may Court be diminished by, any otherbranch of Muscogee (Creek) Nation’s govern-ment. In re Supreme Court, 1 Okla. Trib. 89(Muscogee (Creek) 1986).

The District Court of the Muscogee (Creek)Nation has exclusive original jurisdiction overall matters not otherwise limited by tribal ordi-nance. Muscogee (Creek) Nation v. American To-bacco Co., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct.1998).

The District Court of the Muscogee (Creek)Nation has personal jurisdiction and subjectmatter jurisdiction over suits by the Nationagainst Tobacco companies with respect to theirmanufacture, marketing, and sale of tobaccoproducts where some of such activities by de-fendant and/or their agents are alleged to haveoccurred within the Nation’s Indian Countryand/or where products have entered the streamof commerce within the Nation’s territorial andpolitical jurisdiction thus creating minimumcontacts for jurisdictional purposes. Muscogee(Creek) Nation v. American Tobacco Co., 5 Okla.Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Indian Tribes have adjudicatory jurisdictionwhere party’s actions have substantial effect onpolitical integrity, economic security, or healthand safety and welfare of the tribe. Muscogee(Creek) Nation v. American Tobacco Co., 5 Okla.Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Treaty of 1856 did not divest the Muscogee(Creek) Nation of otherwise extant adjudicatoryjurisdiction over non-Indians and/or corpora-tions. Muscogee (Creek) Nation v. American To-bacco Co., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct.1998).

Muscogee (Creek) Nation Constitution andstatutes dictate manner in which question oflaw are to be addressed by the Court. Muscogee(Creek) Nation v. American Tobacco Co., 5 Okla.Trib. 401 (Musc.(Cr.) D.Ct. 1998).

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Article I § 2 states that political jurisdictionshould be as it geographically appeared in 1900which is based on those treaties entered into bythe Muscogee (Creek) Nation and the UnitedStates of America. Muscogee (Creek) Nation v.American Tobacco Co., 5 Okla. Trib. 401(Musc.(Cr.) D.Ct. 1998).

Jurisdiction includes but is not limited toproperty held in trust by the United States ofAmerica and to such other property as held bythe Muscogee (Creek) Nation. Muscogee (Creek)Nation v. American Tobacco Co., 5 Okla. Trib.401 (Musc. (Cr.) D.Ct. 1998).

Judicial Code in NCA 82–30 defines adjudica-tory and jurisdiction of the Muscogee (Creek)Nation’s District Court as exclusive original ju-risdiction over all matters not otherwise limitedby tribal ordinance. Muscogee (Creek) Nation v.American Tobacco Co., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Civil Jurisdiction over non-members comesfrom grant in NCA 92–205 which gives theNation’s Courts general civil jurisdiction overclaims arising in the territorial jurisdiction.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct. 1998).

Personal jurisdiction shall exist when personis served within jurisdictional territory orserved anywhere in cases arising within territo-rial jurisdiction of the Muscogee (Creek) Nation.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct. 1998).

Defendant’s act of entry into the Muscogee(Creek) Nation by placing their products intothe stream of commerce within the political andterritorial jurisdiction of the Nation thus con-senting to civil jurisdiction of the Muscogee(Creek) Nation. Muscogee (Creek) Nation v.American Tobacco Co., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Court adopting the minimum contacts juris-prudence of the federal courts determines thatpersonal jurisdiction does exist against defen-dant tobacco companies. Muscogee (Creek) Na-tion v. American Tobacco Co., 5 Okla. Trib. 401(Musc. (Cr.) D.Ct. 1998).

Muscogee (Creek) Nation does not exceed itspowers as a matter of tribal law or under no-tions of federal due process if it asserts personaljurisdiction over a corporation that delivers itsproducts into the stream of commerce with theforeseeability and expectation that its productwould be consumed by the Muscogee (Creek)Nation. Muscogee (Creek) Nation v. AmericanTobacco Co., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct.1998).

Defendant’s contacts are sufficient both understatutory mandates of the Muscogee (Creek) Na-tion’s statutes and under well established mini-mum contacts jurisprudence developed in thefederal system. Muscogee (Creek) Nation v.American Tobacco Co., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Congress drafted Indian Country statute [18U.S.C.S. § 1151 (1997)] as a criminal statutebut the tribal and federal courts have appliedthe statutory definition to civil matters. Musco-gee (Creek) Nation v. American Tobacco Co., 5Okla. Trib. 401 (Musc. (Cr.) D.Ct. 1998).

Mandate of Montana [Montana v. U.S., 450U.S. 544 (1981)] recognizes a tribes regulatoryauthority if the conduct to be has or threatens tohave a substantial effect on the tribes politicalintegrity, economic security or health and wel-fare. Muscogee (Creek) Nation v. American To-bacco Co., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct.1998).

If tribal regulatory jurisdiction exists thentribal adjudicatory jurisdiction must follow.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct. 1998).

Absent express Congressional enactment tothe contrary, the jurisdiction power of the Mus-cogee (Creek) Nation remains unscathed. Mus-cogee (Creek) Nation v. American Tobacco Co., 5Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Canons of treaty construction developed bythe United States Supreme Court resolve ambi-guities in favor of Indians and that language ofan Indian Treaty is to be understood today asthat same language was understood by tribalrepresentatives when the treaty was negotiated.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Entire reading of Treaty of 1856 in light ofhistorical realities clearly indicates that theUnited States Congress has abrogated the treatyand subsequently restored the governmentalpowers of the Muscogee (Creek) Nation whichincludes the power of the Court to assert juris-diction. Muscogee (Creek) Nation v. AmericanTobacco Co., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct.1998).

No indication in the 1867 Treaty that theMuscogee (Creek) Nation gave up any right tofull adjudicatory authority. Muscogee (Creek) Na-tion v. American Tobacco Co., 5 Okla. Trib. 401(Musc.(Cr.) D.Ct. 1998).

No provision nor implication in the 1867Constitution of the Muscogee (Creek) Nationthat prohibited jurisdiction over corporationsdoing business in the Muscogee (Creek) Nation.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Muscogee (Creek) Nation reorganized theirtribal government under the Oklahoma IndianWelfare Act and adopted a new constitutionwhich was approved by the United States De-partment of Interior and organizes tribal gov-ernment into executive, legislative, and judicialbranches with no divestiture of authority overnon-Indians or corporations. Muscogee (Creek)Nation v. American Tobacco Co., 5 Okla. Trib.401 (Musc.(Cr.) D.Ct. 1998).

Even if the language of the statutes requiredpersonal service, the Court has the discretion towaive the requirement of NCA 83–69 § 102

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Rule C. Muscogee (Creek) Nation v. AmericanTobacco Co., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct.1998).

Due Process requires notice to be reasonablycalculated to give parties notice of an actionpending and giving those parties reasonabletime to appear and object. Muscogee (Creek)Nation v. American Tobacco Co., 5 Okla. Trib.401 (Musc. (Cr.) D.Ct. 1998).

District Court has exclusive jurisdiction overelections disputes by virtue of the election lawsof the Muscogee (Creek) Nation. In re Petitionfor Irregularities, 5 Okla. Trib. 341 (Musc. (Cr.)D.Ct. 1997).

District Court of the Muscogee (Creek) Nationhas power to appoint an Ahaka Mvhereuca forpurposes of mediating disputes within a Musco-gee (Creek) Nation Chartered Community. Mus-cogee (Creek) Nation v. Holdenville Indian Com-munity, 5 Okla. Trib. 551 (Musc. (Cr.) D.Ct.1992).

District Court of the Muscogee (Creek) Nationhas power to suspend control by officers ordirectors of Muscogee (Creek) Nation CharteredCommunities over such communities and theirresources where exigent circumstances exist.Muscogee (Creek) Nation v. Holdenville IndianCommunity, 5 Okla. Trib. 551 (Musc. (Cr.) D.Ct.1992).

District Court of the Muscogee (Creek) Nationhas power to direct officers of the Muscogee(Creek) Nation to provide training and technicalassistance to officers and/or directors of Musco-gee (Creek) Chartered Communities. Muscogee(Creek) Nation v. Holdenville Indian Community,5 Okla. Trib. 551 (Musc. (Cr.) D.Ct. 1992).

Where dispute threatening stability and/oreconomic well being of a Muscogee (Creek)Nation Chartered Community has occurred thatresulted in litigation, District Court may directCommunity to pay reasonable attorneys’ feesfrom Community funds. Muscogee (Creek) Na-tion v. Holdenville Indian Community, 5 Okla.Trib. 551 (Musc. (Cr.) D.Ct. 1992).

Muscogee (Creek) Constitution, article VII,section 2 mandates that newly-appointed andapproved Justices of tribal Supreme Court servefull six-year terms, even where appointment isto a vacancy which did not result from theexpiration of a previous Justice’s term. In reTerm of Office, 2Okla. Trib. 411 (Muscogee (Cr.)D.Ct. 1992).

Constitution of Muscogee (Creek) Nation issilent as to procedure to be followed wherevacancy on tribal Supreme Court occurs beforea term of office expires. In re Term of Office, 2Okla. Trib. 385 (Musc. (Cr.) D.Ct. 1992).

Framers of Muscogee (Creek) Nation Consti-tution did not anticipate any extended vacancieson Tribe’s Supreme Court. In re Term of Office,2 Okla. Trib. 385 (Musc. (Cr.) D.Ct. 1992).

Appointment and approval of a Justice toMuscogee (Creek) Nation Supreme Court to avacancy which does not result from the expira-

tion of another Justice’s term, and which occursafter July 1 of any year, will result in the newly-appointed and approved Justice serving in officein excess of six years, and there is no require-ment in tribal Constitution for reconfirmationafter the partial year has expired. In re Term ofOffice, 2 Okla. Trib. 385 (Musc. (Cr.) D.Ct.1992).

It is not the business of the Tribal Courts tointerfere with the affairs of any Creek communi-ties that is why by-laws and constitutions werepassed and ratified. Johnson v. Holdenville Indi-an Community, 5 Okla. Trib. 543 (Musc. (Cr.)D.Ct. 1991).

District Court of the Muscogee (Creek) Nationhas power to enjoin application of amendmentsto Holdenville (Creek) Indian Community’sConstitution and by-laws until receipt of docu-mentation that amendments were properlyadopted. Johnson v. Holdenville Indian Commu-nity, 5 Okla. Trib. 543 (Musc. (Cr.) D.Ct. 1991).

District Court of the Muscogee (Creek) Nationmay direct officers of Holdenville (Creek) Indi-an Community to follow proper business prac-tices with respect to funds and enterprisesowned and operated by the community. John-son v. Holdenville Indian Community, 5 Okla.Trib. 543 (Musc. (Cr.) D.Ct. 1991).

District Court has power to prescribe methodof establishing an agenda for meetings of theEufaula (Creek) Indian Community and hownotices of meetings are to be posted. McGirt v.Tiger, 5 Okla Trib. 557 (Musc. (Cr.) D.Ct. 1993).

District Court of Muscogee (Creek) Nationhas power to direct that selection and or remov-al of officerholders by Kellyville Muscogee Indi-an Community be effectuated in accordancewith the Community’s Constitution and By-lawsand Muscogee (Creek) Nation laws. KellyvilleIndian Community v. Watashe, 5 Okla. Trib. 538(Musc. (Cr.) D.Ct. 1991).

Although neither the Constitution nor Ordi-nances provide for mandamus, Court can lookto Oklahoma law for guidance. Kamp v. Cox, 5Okla. Trib. 520 (Musc. (Cr.) D.Ct. 1991).

Courts of the Muscogee (Creek) Nation havepower to impose monetary civil contempt sanc-tions against executive branch officers wheresuch officers have failed to comply with a courtorder. Frye v. Cox, 5 Okla. Trib. 516 (Musc. (Cr.)D.Ct. 1990).

We begin by noting that whether a tribalcourt has adjudicative authority over nonmem-bers is a federal question. If the tribal court isfound to lack such jurisdiction, any judgment asto the nonmember is necessarily null and void.(internal cites to Iowa Mut. Ins. Co. v. LaPlante,480 U.S. 9 (1987); National Farmers Union Ins.Cos. v. Crow Tribe, 471 U.S. 845 (1985) omitted)Plains Commercial Bank v. Long Family Land &Cattle Co. et al., 128 S.Ct. 2709 (2008)

For nearly two centuries now, we have recog-nized Indian tribes as ‘‘distinct, independentpolitical communities,’’ Worcester v. Georgia, 6

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Pet. 515 (1832), qualified to exercise many ofthe powers and prerogatives of self-govern-ment.(internal cite omitted) Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)

As a general rule, then, ‘‘the tribe has noauthority itself, by way of tribal ordinance oractions in the tribal courts, to regulate the useof fee land.’’ (quoting Brendale v. ConfederatedTribes and Bands of Yakima Nation, 492 U.S.408 (1989)) Plains Commercial Bank v. LongFamily Land & Cattle Co. et al., 128 S.Ct. 2709(2008)

The Bill of Rights does not apply to Indiantribes. (quoting Talton v. Mayes, 163 U.S. 376(1896)) Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)

Indian courts ‘‘differ from traditional Ameri-can courts in a number of significant respects.’’(quoting Nevada v. Hicks, 533 U.S. 353 (2001))Plains Commercial Bank v. Long Family Land &Cattle Co. et al., 128 S.Ct. 2709 (2008)

[w]e said it ‘‘defies common sense to sup-pose’’ that Congress meant to subject non-Indi-ans to tribal jurisdiction simply by virtue of thenonmember’s purchase of land in fee simple. IfCongress did not anticipate tribal jurisdictionwould run with the land, we see no reason whya nonmember would think so either. (internalcite omitted, quoting from Montana v. UnitedStates, 450 U.S. 544 (1981)) Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)

The sovereign authority of Indian tribes islimited in ways state and federal authority isnot. Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)

Montana [Montana v. United States, 450 U.S.544 (1981)] provides that, in certain circum-stances, tribes may exercise authority over theconduct of nonmembers, even if that conducttakes place on non-Indian fee land. But conducttaking place on the land and the sale of the landare two very different things. Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)

The second exception authorizes the tribe toexercise civil jurisdiction when non-Indians’‘‘conduct’’ menaces the ‘‘political integrity, theeconomic security, or the health or welfare ofthe tribe.’’ The conduct must do more thaninjure the tribe, it must ‘‘imperil the subsis-tence’’ of the tribal community. (quoting Mon-tana v. United States, 450 U.S. 544 (1981))(inter-nal citation omitted) Plains Commercial Bank v.Long Family Land & Cattle Co. et al., 128 S.Ct.2709 (2008)

The sale of formerly Indian-owned fee land toa third party is quite possibly disappointing tothe tribe, but cannot fairly be called ‘‘cata-strophic’’ for tribal self-government. PlainsCommercial Bank v. Long Family Land & CattleCo. et al., 128 S.Ct. 2709 (2008)

Seeking the Tribal Court’s aid in serving pro-cess on tribal members for a pending state-courtaction does not, we think, constitute consent tofuture litigation in the Tribal Court. Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)

We must decide whether Congress has theconstitutional power to relax restrictions thatthe political branches have, over time, placedon the exercise of a tribe’s inherent legal au-thority. We conclude that Congress does possessthis power. U.S. v. Lara, 541 U.S. 193 (2004)

[i]n Duro v. Reina, [Duro v. Reina, 495 U.S.676 (1990)], this Court had held that a tribe nolonger possessed inherent or sovereign authorityto prosecute a ‘‘nonmember Indian.’’ But itpointed out that, soon after this Court decidedDuro, Congress enacted new legislation specifi-cally authorizing a tribe to prosecute Indianmembers of a different tribe. [Act of Oct. 28,1991, 105 Stat. 646]. That new statute, in per-mitting a tribe to bring certain tribal prosecu-tions against nonmember Indians, does not pur-port to delegate the Federal Government’s ownfederal power. Rather, it enlarges the tribes’ own‘‘powers of self-government’’ to include ‘‘theinherent power of Indian tribes, hereby recog-nized and affirmed, to exercise criminal juris-diction over all Indians,’’ including nonmem-bers. 25 U.S.C. § 1301(2) (emphasis added inoriginal). U.S. v. Lara, 541 U.S. 193 (2004)

We assume, TTT that Lara’s double jeopardyclaim turns on the answer to the ‘‘dual sover-eignty’’ question. What is ‘‘the source of [the]power to punish’’ nonmember Indian offenders,‘‘inherent tribal sovereignty’’ or delegated feder-al authority? [quoting United States v. Wheeler,435 U.S. 313 (1978)]. We also believe that Con-gress intended the former answer. The statute[Act of Oct. 28, 1991, 105 Stat. 646] says that it‘‘recognize[s] and affirm[s]’’ in each tribe the‘‘inherent’’ tribal power (not delegated federalpower) to prosecute nonmember Indians formisdemeanors. (emphasis added in original, in-ternal cites omitted) U.S. v. Lara, 541 U.S. 193(2004)

Thus the statute [Act of Oct. 28, 1991, 105Stat. 646] seeks to adjust the tribes’ status. Itrelaxes the restrictions, recognized in Duro,[Duro v. Reina, 495 U.S. 676 (1990)], that thepolitical branches had imposed on the tribes’exercise of inherent prosecutorial power. U.S. v.Lara, 541 U.S. 193 (2004)

[t]he [U.S.] Constitution grants Congressbroad general powers to legislate in respect toIndian tribes, powers that we have consistentlydescribed as ‘‘plenary and exclusive.’’ ThisCourt has traditionally identified the IndianCommerce Clause, U.S. Const., Art. I, § 8, cl. 3,and the Treaty Clause, Art. II, § 2, cl. 2, assources of that power. U.S. v. Lara, 541 U.S.193 (2004)

Congress has also granted tribes greater au-tonomy in their inherent law enforcement au-thority (in respect to tribal members) by in-

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creasing the maximum criminal penalties tribalcourts may impose. § 4217, 100 Stat. 3207–146,codified at 25 U.S.C. § 1302(7) (raising themaximum from ‘‘a term of six months and afine of $500’’ to ‘‘a term of one year and a fineof $5,000’’). U.S. v. Lara, 541 U.S. 193 (2004)

[o]ur conclusion that Congress has the powerto relax the restrictions imposed by the politicalbranches on the tribes’ inherent prosecutorialauthority is consistent with our earlier cases.U.S. v. Lara, 541 U.S. 193 (2004)

[t]hese holdings [referring to United States v.Wheeler, 435 U.S. 313 (1978); Oliphant v. Su-quamish Tribe, 435 U.S. 191 (1978); Duro v.Reina, 495 U.S. 676 (1990)] reflect the Court’sview of the tribes’ retained sovereign status asof the time the Court made them. They did notset forth constitutional limits that prohibit Con-gress from changing the relevant legal circum-stances, i.e., from taking actions that modify oradjust the tribes’ status. U.S. v. Lara, 541 U.S.193 (2004)

Oliphant and Duro [Oliphant v. SuquamishTribe, 435 U.S. 191 (1978); Duro v. Reina, 495U.S. 676 (1990)] make clear that the Constitu-tion does not dictate the metes and bounds oftribal autonomy, nor do they suggest that theCourt should second-guess the political branch-es’ own determinations. U.S. v. Lara, 541 U.S.193 (2004)

Wheeler, Oliphant, and Duro, [United States v.Wheeler, 435 U.S. 313 (1978); Oliphant v. Su-quamish Tribe, 435 U.S. 191 (1978); Duro v.Reina, 495 U.S. 676 (1990)] then, are not deter-minative because Congress has enacted a newstatute, relaxing restrictions on the bounds ofthe inherent tribal authority that the UnitedStates recognizes. And that fact makes all thedifference. U.S. v. Lara, 541 U.S. 193 (2004)

The Court has also said that ‘‘statutes are tobe construed liberally in favor of the Indianswith ambiguous provisions interpreted to theirbenefit.’’ (quoting Montana v. Blackfeet Tribe,471 U.S. 759 (1985)) Chickasaw Nation v. Unit-ed States, 534 U.S. 84 (2001)

[t]he canon that assumes Congress intends itsstatutes to benefit the tribes is offset by thecanon that warns us against interpreting federalstatutes as providing tax exemptions unlessthose exemptions are clearly expressed. SeeUnited States v. Wells Fargo Bank, 485 U.S. 351(1988) Chickasaw Nation v. United States, 534U.S. 84 (2001)

Nor can one say that the pro-Indian canon isinevitably stronger–particularly where the inter-pretation of a congressional statute rather thanan Indian treaty is at issue. This Court’s earliercases are too individualized, involving too manydifferent kinds of legal circumstances, to war-rant any such assessment about the two canons’relative strength. (internal cite omitted) Chicka-saw Nation v. United States, 534 U.S. 84 (2001)

Indian tribes’ regulatory authority over non-members is governed by the principles set forth

in Montana v. United States, 450 U.S. 544(1981) Nevada v. Hicks, 533 U.S. 353 (2001)

Where nonmembers are concerned, the ‘‘exer-cise of tribal power beyond what is necessary toprotect tribal self-government or to control inter-nal relations is inconsistent with the dependentstatus of the tribes, and so cannot survive with-out express congressional delegation.’’ (empha-sis in original, quoting Montana v. United States,450 U.S. 544 (1981)) Nevada v. Hicks, 533 U.S.353 (2001)

[t]he absence of tribal ownership has beenvirtually conclusive of the absence of tribal civiljurisdiction; with one minor exception, we havenever upheld under Montana [Montana v. Unit-ed States, 450 U.S. 544 (1981)] the extension oftribal civil authority over nonmembers on non-Indian land. Nevada v. Hicks, 533 U.S. 353(2001)

[t]he existence of tribal ownership is not aloneenough to support regulatory jurisdiction overnonmembers. Nevada v. Hicks, 533 U.S. 353(2001)

[T]hat Indians have ‘‘the right TTT to maketheir own laws and be ruled by them,’’ (quotingMontana v. United States, 450 U.S. 544 (1981))Nevada v. Hicks, 533 U.S. 353 (2001)

Tribal assertion of regulatory authority overnonmembers must be connected to that right ofthe Indians to make their own laws and begoverned by them. Nevada v. Hicks, 533 U.S.353 (2001)

That is not to say that States may exert thesame degree of regulatory authority within areservation as they do without. To the contrary,the principle that Indians have the right tomake their own laws and be governed by themrequires ‘‘an accommodation between the inter-ests of the Tribes and the Federal Government,on the one hand, and those of the State, on theother.’’(quoting Washington v. ConfederatedTribes of Colville Reservation, 447 U.S. 134, 156(1980)) Nevada v. Hicks, 533 U.S. 353 (2001)

When on-reservation conduct involving onlyIndians is at issue, state law is generally inappli-cable, for the State’s regulatory interest is likelyto be minimal and the federal interest in en-couraging tribal self-government is at its strong-est (quoting White Mountain Apache Tribe v.Bracker, 448 U.S. 136, 141 (1980)) Nevada v.Hicks, 533 U.S. 353 (2001)

Sections 1152 and 1153 of Title 18, whichgive United States and tribal criminal law gen-erally exclusive application, apply only tocrimes committed in Indian Country; PublicLaw 280, codified at 18 U.S.C. § 1162 whichpermits some state jurisdiction as an exceptionto this rule, is similarly limited. Nevada v. Hicks,533 U.S. 353 (2001)

25 U.S.C. § 2804 which permits federal-stateagreements enabling state law-enforcementagents to act on reservations, applies only todeputizing them for the enforcement of federalor tribal criminal law. Nothing in the federal

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statutory scheme prescribes, or even remotelysuggests, that state officers cannot enter a reser-vation (including Indian-fee land) to investigateor prosecute violations of state law occurringoff the reservation. Nevada v. Hicks, 533 U.S.353 (2001)

25 U.S.C. § 2806 affirms that ‘‘the provisionsof this chapter alter neither TTT the law enforce-ment, investigative, or judicial authority of anyTTT State, or political subdivision or agencythereofTTTT’’ Nevada v. Hicks, 533 U.S. 353(2001)

This historical and constitutional assumptionof concurrent state-court jurisdiction over feder-al-law cases is completely missing with respectto tribal courts. Nevada v. Hicks, 533 U.S. 353(2001)

Respondents’ contention that tribal courts arecourts of ‘‘general jurisdiction’’ is also quitewrong. A state court’s jurisdiction is general, inthat it ‘‘lays hold of all subjects of litigationbetween parties within its jurisdiction, thoughthe causes of dispute are relative to the laws ofthe most distant part of the globe.’’ [quotingfrom Tafflin v. Levitt, 493 U.S. 455 (1990)] Trib-al courts, it should be clear, cannot be courts ofgeneral jurisdiction in this sense, for a tribe’sinherent adjudicative jurisdiction over nonmem-bers is at most only as broad as its legislativejurisdiction.(internal cites omitted) Nevada v.Hicks, 533 U.S. 353 (2001)

It is true that some statutes proclaim tribal-court jurisdiction over certain questions of fed-eral law.(quoting 25 U.S.C. § 1911 (IndianChild Welfare Act of 1978); 12 U.S.C. § 1715(foreclosures brought by the Secretary of Hous-ing and Urban Development against reservationhomeowners)). But no provision in federal lawprovides for tribal-court jurisdiction over§ 1983 [42 U.S.C. § 1983] actions. Nevada v.Hicks, 533 U.S. 353 (2001)

Were § 1983[42 U.S.C. § 1983] claims cogni-zable in tribal court, defendants would inexpli-cably lack the right available to state-court§ 1983 defendants to seek a federal forum. Ne-vada v. Hicks, 533 U.S. 353 (2001)

[t]he simpler way to avoid the removal prob-lem is to conclude (as other indications suggestanyway) that tribal courts cannot entertain§ 1983 suits. Nevada v. Hicks, 533 U.S. 353(2001)

Since it is clear, as we have discussed, thattribal courts lack jurisdiction over state officialsfor causes of action relating to their perform-ance of official duties, adherence to the tribalexhaustion requirement in such cases ‘‘wouldserve no purpose other than delay,’’ and istherefore unnecessary. Nevada v. Hicks, 533U.S. 353 (2001)

State officials operating on a reservation toinvestigate off-reservation violations of state laware properly held accountable for tortious con-duct and civil rights violations in either state or

federal court, but not in tribal court. Nevada v.Hicks, 533 U.S. 353 (2001)

the Court explained, ‘‘the inherent sovereignpowers of an Indian tribe’’—those powers atribe enjoys apart from express provision bytreaty or statute—‘‘do not extend to the activi-ties of nonmembers of the tribe.’’ (quoting Mon-tana v. United States, 450 U.S. 544 (1981))Strate v. A–1 Contractors, 520 U.S. 438 (1997)

Indian tribes retain inherent sovereign powerto exercise some forms of civil jurisdiction overnon Indians on their reservations, even on nonIndian fee lands. A tribe may regulate, throughtaxation, licensing, or other means, the activi-ties of nonmembers who enter consensual rela-tionships with the tribe or its members, throughcommercial dealing, contracts, leases, or otherarrangements. A tribe may also retain inherentpower to exercise civil authority over the con-duct of non Indians on fee lands within itsreservation when that conduct threatens or hassome direct effect on the political integrity, theeconomic security, or the health or welfare ofthe tribe. (quoting Montana v. United States, 450U.S. 544 (1981)) Strate v. A–1 Contractors, 520U.S. 438 (1997)

Montana thus described a general rule that,absent a different congressional direction, Indi-an tribes lack civil authority over the conductof nonmembers on non Indian land within areservation, subject to two exceptions: The firstexception relates to nonmembers who enterconsensual relationships with the tribe or itsmembers; the second concerns activity that di-rectly affects the tribe’s political integrity, eco-nomic security, health, or welfare TT (quotingMontana v. United States, 450 U.S. 544 (1981))Strate v. A–1 Contractors, 520 U.S. 438 (1997)

National Farmers and Iowa Mutual, [NationalFarmers Union Ins. Cos. v. Crow Tribe, 471 U.S.845 (1985), and Iowa Mutual. Insurance. Co. v.LaPlante, 480 U.S. 9 (1987)] we conclude, arenot at odds with, and do not displace, Montana.Both decisions describe an exhaustion rule al-lowing tribal courts initially to respond to aninvocation of their jurisdiction; neither estab-lishes tribal court adjudicatory authority, evenover the lawsuits involved in those cases. Stratev. A–1 Contractors, 520 U.S. 438 (1997)

[W]e do not extract from National Farmersanything more than a prudential exhaustionrule, in deference to the capacity of tribal courts‘‘to explain to the parties the precise basis foraccepting [or rejecting] jurisdiction.’’ (quotingNational Farmers Union Ins. Cos. v. Crow Tribe,471 U.S. 845 (1985)) Strate v. A–1 Contractors,520 U.S. 438 (1997)

Respect for tribal self government made itappropriate ‘‘to give the tribal court a full op-portunity to determine its own jurisdiction.’’(quoting Iowa Mutual Insurance Co. v. LaPlante,480 U.S. 9 (1987)) Strate v. A–1 Contractors, 520U.S. 438 (1997)

Tribal authority over the activities of non In-dians on reservation lands is an important part

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of tribal sovereignty. Civil jurisdiction over suchactivities presumptively lies in the tribal courtsunless affirmatively limited by a specific treatyprovision or federal statuteTTTT ‘‘In the absenceof any indication that Congress intended thediversity statute to limit the jurisdiction of thetribal courts, we decline petitioner’s invitationto hold that tribal sovereignty can be impairedin this fashion.’’ (quoting Iowa Mutual. Insur-ance. Co. v. LaPlante, 480 U.S. 9 (1987)) Stratev. A–1 Contractors, 520 U.S. 438 (1997)

[t]hat state courts may not exercise jurisdic-tion over disputes arising out of on reservationconduct—even over matters involving non Indi-ans—if doing so would ‘‘infring[e] on the rightof reservation Indians to make their own lawsand be ruled by them.’’ (quoting Fisher v. Dis-trict Court of Sixteenth Judicial Dist. of Mont.,424 U.S. 382 (1976)) Strate v. A–1 Contractors,520 U.S. 438 (1997)

Recognizing that our precedent has been vari-ously interpreted, we reiterate that NationalFarmers and Iowa Mutual [National FarmersUnion Ins. Cos. v. Crow Tribe, 471 U.S. 845(1985), and Iowa Mutual. Insurance. Co. v. La-Plante, 480 U.S. 9 (1987)] enunciate only anexhaustion requirement, a ‘‘prudential rule,’’,based on comity. These decisions do not expandor stand apart from Montana’s instruction on‘‘the inherent sovereign powers of an Indiantribe.’’ [Montana v. United States, 450 U.S. 544(1981)] (internal citations omitted) Strate v. A–1Contractors, 520 U.S. 438 (1997)

While Montana immediately involved regula-tory authority, the Court broadly addressed theconcept of ‘‘inherent sovereignty.’’ Regardingactivity on non Indian fee land within a reserva-tion, Montana delineated—in a main rule andexceptions—the bounds of the power tribes re-tain to exercise ‘‘forms of civil jurisdiction overnon Indians.’’ As to nonmembers, we hold, atribe’s adjudicative jurisdiction does not exceedits legislative jurisdiction. Absent congressionaldirection enlarging tribal court jurisdiction, weadhere to that understanding. (quoting Montanav. United States, 450 U.S. 544 (1981)) Strate v.A–1 Contractors, 520 U.S. 438 (1997)

Subject to controlling provisions in treatiesand statutes, and the two exceptions identifiedin Montana,[ Montana v. United States, 450 U.S.544 (1981)] the civil authority of Indian tribesand their courts with respect to non Indian feelands generally ‘‘do[es] not extend to the activi-ties of nonmembers of the tribe.’’ Strate v. A–1Contractors, 520 U.S. 438 (1997)

Read in isolation, the Montana [Montana v.United States, 450 U.S. 544 (1981)] rule’s sec-ond exception can be misperceived. Key to itsproper application, however, is the Court’s pref-ace: ‘‘Indian tribes retain their inherent power[to punish tribal offenders,] to determine tribalmembership, to regulate domestic relationsamong members, and to prescribe rules of in-heritance for membersTTTT But [a tribe’s inher-ent power does not reach] beyond what is nec-

essary to protect tribal self government or tocontrol internal relations.’’ (quoting Montana)Strate v. A–1 Contractors, 520 U.S. 438 (1997)

The language contained in the title for identi-fying a first and second lienholder cannot sub-stitute for some Nation law concerning the legaleffect of such identification. The Nation statuteallowing for lien notation at the request of alending institution, Muscogee (Creek) NationStat. tit. 36, § 3–104(B), never mentions theword ‘‘perfection’’ let alone indicates that liennotation is required to perfect a security interestin a vehicle. Nor is there any indication ofwhether perfection occurs upon application fora title or when the application is issued notingthe lien. Malloy v. Wilserv Credit Union, 516F.3d 1180 (10th Cir. 2008)

[W]e reject the arguments that (a) tribal statu-tory authority merely allowing for notation of alien, (b) the title form itself or (c) a general rightto go to tribal court would substitute for triballaw concerning perfection. Malloy v. WilservCredit Union, 516 F.3d 1180 (10th Cir. 2008)

Moreover, ‘‘[a] tribal court’s dismissal of asuit as barred by sovereign immunity is simplynot the same thing as having no tribal forum tohear the dispute.’’[quoting Walton v. TesuquePueblo, 443 F.3d 1274 (10th Cir.) (reversingdistrict court’s denial of motion to dismisswhere tribal defendants did not waive immunityand no statute authorized the suit), (internalcites omitted )] Miner Electric and Russell Minerv. Muscogee (Creek) Nation, 505 F.3d 1007 (10thCir. 2007)

We conclude that, in the absence of congres-sional abrogation of tribal sovereign immunityfrom suit in this action, or an express waiver ofits sovereign immunity by the Nation, the dis-trict court erred in failing to grant the Nation’smotion to dismiss. Miner Electric and RussellMiner v. Muscogee (Creek) Nation, 505 F.3d1007 (10th Cir. 2007)

We noted that Indian tribes’ ‘‘limited sover-eign immunity from suit is well-established’’and that the tribe in that case ‘‘ha[d] not chosento waive that immunity.’’ We then proceeded toconsider whether the tribe’s sovereign immunityextended to the tribal-officer defendants, hold-ing: When the complaint alleges that the namedofficer defendants have acted outside theamount of authority that the sovereign is capa-ble of bestowing, an exception to the doctrine ofsovereign immunity is invoked. If the sovereigndid not have the power to make a law, then theofficial by necessity acted outside the scope ofhis authority in enforcing it, making him liableto suit. Any other rule would mean that a claimof sovereign immunity would protect a sover-eign in the exercise of power it does not possess.[internal cites omitted by author. Quoting fromTenneco Oil Co. v. Sac & Fox Tribe of Indians ofOklahoma, 725 F.2d 572 (10th Cir. 1984)] MinerElectric and Russell Miner v. Muscogee (Creek)Nation, 505 F.3d 1007 (10th Cir. 2007)

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The Court held specifically that Title I of theICRA–the same statute upon which the Minerparties base some of their claims for relief–didnot abrogate tribal sovereign immunity, andtherefore suits against a tribe under the ICRAare barred. [quoting Santa Clara Pueblo v. Mar-tinez, 436 U.S. 49, 58 (1978)] Miner Electric andRussell Miner v. Muscogee (Creek) Nation, 505F.3d 1007 (10th Cir. 2007)

In Kiowa Tribe of Oklahoma v. Manufactur-ing Technologies, Inc., 523 U.S.751, 754 (1998),the Supreme Court affirmed that, ‘‘[a]s a mat-ter of federal law, an Indian tribe is subject tosuit only where Congress has authorized thesuit or the tribe has waived its immunity.’’While noting that ‘‘[t]here are reasons to doubtthe wisdom of perpetuating the doctrine,’’ itnonetheless rejected the defendant’s invitationto narrow the scope of tribal sovereign immu-nity. The Court recognized that it had ‘‘takenthe lead in drawing the bounds of tribal immu-nity,’’ but it deferred to Congress to limit orabrogate the doctrine through legislation, as ithas done with respect to limited classes ofsuits.(internal quotes omitted) Miner Electricand Russell Miner v. Muscogee (Creek) Nation,505 F.3d 1007 (10th Cir. 2007)

[f]ederal courts do have jurisdiction under theICRA [Indian Civil Rights Act, 25 U.S.C.§§ 1301–1303] to entertain habeas proceedings.Specifically, 25 U.S.C. § 1303 makes availableto any person ‘‘[t]he privilege of the writ ofhabeas corpus TTT, in a court of the UnitedStates, to test the legality of his detention byorder of an Indian tribe.’’ Walton v. Pueblo etal., 443 F.3d 1274 (10th Cir. 2006)

In Santa Clara Pueblo, [Santa Clara Pueblo v.Martinez, 436 U.S. 49 (1978)] the SupremeCourt held that the ICRA [Indian Civil RightsAct, 25 U.S.C. §§ 1301–1303] does not author-ize the maintenance of suits against a tribe nordoes it constitute a waiver of sovereignty. Fur-ther, the ICRA does not create a private causeof action against a tribal official. The only ex-ception is that federal courts do have jurisdic-tion under the ICRA over habeas proceedings.(internal cites omitted) Walton v. Pueblo et al.,443 F.3d 1274 (10th Cir. 2006)

Restricted Indian land is ‘‘land or any interesttherein, the title to which is held by an individu-al Indian, subject to Federal restrictions againstalienation or encumbrance.’’ 25 C.F.R.§ 152.1(c). Such land is generally entitled toadvantageous tax treatment. [quoting OklahomaTurnpike Authority v. Bruner, 259 F.3d 1236(10th Cir.2001) (‘‘Income derived by individualIndians from restricted allotted land, held intrust by the United States, is subject to numer-ous exemptions from taxation based on statuteor treaty.’’)] Estate of Bruner v. Bruner, 338 F.3d1172 (10th Cir. 2003)

This Court acknowledged Oklahoma did nottake steps to assume jurisdiction under the pre-vious PL–280 in Lewis v. Sac and Fox Tribe ofOklahoma Housing Authority. We held that

‘‘[b]ecause Oklahoma did not take the appropri-ate steps to take jurisdiction under PL–280, theproper inquiry to be made in this case mustfocus upon the congressional policy of fosteringtribal autonomy in the light of pertinent U.S.Supreme Court jurisprudence.’’ Cossey v. Chero-kee Nation, 212 P.3d 447 (Okla. 2009)

The IGRA provides at § 2710(d)(3)(C) a list ofprovisions which any negotiated tribal-statecompact ‘‘may’’ include. ‘‘May’’ is ordinarilyconstrued as permissive, while ‘‘shall’’ is ordi-narily construed as mandatory. See OspreyL.L.C. v. Kelly–Moore Paint Co., Inc., 1999 OK50, 984 P.2d 194; Shea v. Shea, 1975 OK 90,537 P.2d 417. Section 2710(d)(3)(C) provides inpart: (C) Any Tribal–State compact negotiatedunder subparagraph (A) may include provisionsrelating to—(i) the application of the criminaland civil laws and regulations of the Indiantribe or the State that are directly related to,and necessary for, the licensing and regulationof such activity; (ii) the allocation of criminaland civil jurisdiction between the State and theIndian tribe necessary for the enforcement ofsuch laws and regulations;TTTT (emphasis add-ed). The Compact here does not include anysuch allocation of jurisdiction. Instead, theCompact provides only: ‘‘This Compact shallnot alter tribal, federal or state civil adjudicato-ry or criminal jurisdiction’’ and that tort claimsmay be heard in a ‘‘court of competent jurisdic-tion.’’ The Tribe could have, but did not, includesuch jurisdictional allocation in this Compact.Neither the IGRA nor the Compact as approvedenlarged the Tribe’s jurisdiction. Cossey v. Cher-okee Nation, 212 P.3d 447 (Okla. 2009)

A ‘‘court of competent jurisdiction’’ is onehaving jurisdiction of a person and the subjectmatter and the power and authority of law atthe time to render the particular judgment.(string cites omitted) Cossey v. Cherokee Nation,212 P.3d 447 (Okla. 2009)

The Compact is derived from the OklahomaStatutes. It incorporates Oklahoma’s Govern-mental Tort Claims Act (GTCA) into its provi-sions. The district courts of Oklahoma thus havesubject matter jurisdiction of any claim arisingunder the GTCA, including one which originatesunder the Compact. Cossey v. Cherokee Nation,212 P.3d 447 (Okla. 2009)

In Nevada v. Hicks, 533 U.S. 353, 121 S.Ct.2304, 150 L.Ed.2d 398 (2001), the SupremeCourt recognized the authority of state courts ascourts of ‘‘general jurisdiction’’ and further ac-knowledged our system of ‘‘dual sovereignty’’ inwhich state courts have concurrent jurisdictionwith federal courts, absent specific Congression-al enactment to the contrary. Cossey v. CherokeeNation, 212 P.3d 447 (Okla. 2009)

Thus, a tribal court is not a court of generaljurisdiction. Its jurisdiction could be asserted inmatters involving non-Indians only when theiractivities on Indian lands are activities that maybe regulated by the Tribe. (citing Nevada v.

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Hicks, 533 U.S. 343 (2001)) Cossey v. CherokeeNation, 212 P.3d 447 (Okla. 2009)

The Oklahoma district court is a ‘‘court ofcompetent jurisdiction’’ to hear Cossey’s tortclaim. The Tribe’s sovereign interests are notimplicated so as to require tribal court jurisdic-tion under the exceptions in Montana, supra.Cossey’s right to seek redress in the Oklahomadistrict court is guaranteed by our Constitution.Moreover, the United States Supreme Court hasupheld Montana and the cases following it, indi-cating the Court’s continued recognition of theneed to protect the sovereign interests of Indiantribes, while acknowledging the plenary powersof the states to adjudicate the rights of theircitizens within their borders. Cossey v. CherokeeNation, 212 P.3d 447 (Okla. 2009)

Tribal criminal jurisdiction may extend toboth member and non-member Indians. 25U.S.C. § 1301(2); United States v. Lara, 541 U.S.193 (2004). It does not extend to non-Indians.Oliphant v. Suquamish Indian Tribe, 435 U.S.191 (1978). That said, tribal officers do have theauthority to investigate violations of law on trib-al land, and detain persons, including non-Indi-ans, suspected of violating the law. Duro v.Reina, 495 U.S. 676 (1990) (internal cites omit-ted) United States v. Green, 140 Fed.Appx. 798(10th Cir. 2005)

2. Inherent powers, generallyWhere a statute states in plain language on a

particular matter, the Court will not place adifferent meaning on the words. Tiger v. Musco-gee (Creek) Nation Election Board, et al. SC07–04 (Muscogee (Creek) 2008)




Indian tribes were not made subject to theBill of Rights. However, the laws of the Musco-gee Nation are subject to the limitation imposedupon the tribal governments by the Indian CivilRights Act of 1968, as amended, found at 25U.S.C. 1301 et seq. This limits the powers oftribal governments by making certain provi-sions of the Bill of Rights applicable to tribalgovernments. Ellis v. Muscogee (Creek) NationalCouncil, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The right of the National Council to provideby law the right to a jury trial in the casescoming before the District Court is not affectedby this opinion, for it is an inferior court or-dained the National Council. Ellis v. Muscogee(Creek) National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

It is the prerogative of the National Council toassign the judicial function of fact finding in thedistrict court to trial by jury. The inherent pow-ers of the District Court are also not addressedin this opinion. Ellis v. Muscogee (Creek) Nation-al Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The granting of jury trial takes away the factfinding part of the judicial power of a court, andmakes jurors the fact finders in the case-al-though the jury is under the supervision anddirection of the trial judge. Ellis v. Muscogee(Creek) National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

We think that the highest court of a sovereigngovernment, when created by the Constitutionof that government which recognizes the princi-ple of separation of powers, is entitled to be freeto function as the framers of that Constitutionintended, and it should guard its prerogativesjealously to preserve its powers as an indepen-dent co-equal branch of government. Ellis v.Muscogee (Creek) National Council, ‘‘Ellis II’’,SC 06–07 (Muscogee (Creek) 2007)

Any demand for jury trial in the SupremeCourt that is not based on a right found in theIndian Civil Rights Act, and if granted, wouldinterfere with the inherent powers bestowedupon the Supreme Court by our Constitution.Ellis v. Muscogee (Creek) National Council, ‘‘El-lis II’’, SC 06–07 (Muscogee (Creek) 2007)

This Court holds that the tribal law referredto as NCA 82–30 at ’204 requiring the SupremeCourt to grant a jury trial when requested by aparty infringes on the inherent power of theCourt to enforce its orders and maintain orderlyadministration of justice, and is therefore un-constitutional. Ellis v. Muscogee (Creek) Nation-al Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)


The Muscogee Nation Supreme Court wascreated by the Muscogee Nation Constitutionand as such it is subject to those limitationscontained in the Constitution. Ellis v. Muscogee

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(Creek) National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

The Supreme Court has the power to enforceits orders, and judgments subject to the rules ofprocedure as to ‘‘due process’’ which it hasadopted. Ellis v. Muscogee (Creek) NationalCouncil, SC 06–07 (Muscogee (Creek) 2007)

[N]o individual within those branches shouldbelieve themselves above the law. Our law is alaw of the people, for the people, and by thepeople. Ellis v. Muscogee (Creek) Nation Nation-al Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)


[O]ur decision in this Opinion is made basedon our constitutional prescription and an eyetoward our need for separate spheres of author-ity, and the obligation to our People for a gov-ernment that will respect these individualspheres of authority. Ellis v. Muscogee (Creek)Nation National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

This Court has held that a fundamental tenetof our case law is that each branch of govern-ment remains autonomous and that each re-spects the duties of the others. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

[T]his Court has the ability to judge the credi-bility of the witnessesTTT Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

Plaintiffs request for a citation of civil con-tempt presents a case of first impression for thisCourt. We find that in any instance of blatantand obvious disregard for the orders of theSupreme Court or the District Court, the Courtsof the Muscogee (Creek) Nation have inherentpower to enforce compliance with such lawfulorders through contempt proceedings. (MCNCode. Title 27. App.2, Rule 20 (C)(5) and (6)).Ellis v. Muscogee (Creek) Nation National Coun-cil, ‘‘Ellis II’’, SC 06–07 (Muscogee (Creek)2007)


As a matter of tribal law, all conduct occur-ring on the Mackey site is subject to the laws ofthe Nation regardless of the status of the par-ties. The Mackey site is under the jurisdiction ofthe Nation because; (1) the land is located with-in the political and territorial boundaries of theNation; and (32) the land is owned by the Na-

tion. 27 Muscogee (Creek) Nation Code. Ann.§ 1–102(A)(Territorial Jurisdiction). Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)


Personal jurisdiction exists over all persons,regardless of their status as Indian or non-Indian, in ‘‘cases arising from any action orevent’’ occurring on the Nation’s Indian Coun-try and in other cases in which the defendanthas established sufficient contacts. Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)

As a matter of Federal law, the Tenth CircuitUnited States Court of Appeals has already de-termined that this same tract of land and thisexact gaming facility are subject to the civilauthority of the Muscogee (Creek) Nation andnot the state of Oklahoma. Muscogee (Creek)Nation v. One Thousand Four Hundred SixtyThree and 14/100; Methamphetamine; and a2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)

In that case [Indian Country, USA v. State ofOklahoma, 829 f.2d 967 (10th Cir. 1987)] theTenth Circuit noted the Mackey Site is part ofthe original treaty land still held by the CreekNation. Muscogee (Creek) Nation v. One Thou-sand Four Hundred Sixty Three and 14/100;Methamphetamine; and a 2004 General MotorsHummer H2, SC 05–01 (Muscogee (Creek)2005)

TTT the Tenth Circuit classified the MackeySite as ‘‘the purest form of Indian Country,’’considering it equal to or great in magnitude,for purposes of tribal jurisdiction, than landsthat are held by the federal government in trustfor the various tribes. Muscogee (Creek) Nationv. One Thousand Four Hundred Sixty Three and14/100; Methamphetamine; and a 2004 GeneralMotors Hummer H2, SC 05–01 (Muscogee(Creek) 2005)

We hold that as a matter of tribal law andconsistent with federal law, the Nation has ex-clusive regulatory jurisdiction over the landwhere Appellant’s conduct occurred. Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)

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Because the citation issued to Russell Minerwas civil in nature, Oliphant does not apply.Muscogee (Creek) Nation v. One Thousand FourHundred Sixty Three and 14/100; Methamphet-amine; and a 2004 General Motors Hummer H2,SC 05–01 (Muscogee (Creek) 2005)

Non–Indians will be subject to tribal regulato-ry authority when they voluntarily choose to goonto tribal land and do business with the tribe.Non–Indians who chose to purchase products,engage in commercial activities, or pay for en-tertainment inside Indian country place them-selves with the regulatory reach of the Nation.Muscogee (Creek) Nation v. One Thousand FourHundred Sixty Three and 14/100; Methamphet-amine; and a 2004 General Motors Hummer H2,SC 05–01 (Muscogee (Creek) 2005)

The Nation has exclusive jurisdiction to regu-late the conduct of all persons on tribal land,particularly those that voluntarily come on totribal land for the purpose of patronizing tribalbusinesses. Muscogee (Creek) Nation v. OneThousand Four Hundred Sixty Three and 14/100;Methamphetamine; and a 2004 General MotorsHummer H2, SC 05–01 (Muscogee (Creek)2005)


The state also lacks jurisdiction [for] the crim-inal conduct inside the Nation’s Indian Coun-try. Because the Nation does not have a cross-deputization agreement with Tulsa County,Oklahoma, the Nation would have no means ofaddressing Appellant’s conduct through the as-sistance of another jurisdiction. Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)

There is simply no jurisdiction besides theNation’s that can adequately deal with drugtraffic on tribal lands. The only mans in whichthe Nation may reduce the amount of drugsbrought onto tribal lands by non-Indians isthrough the limited provisions of the Nation’scivil code. Muscogee (Creek) Nation v. One Thou-sand Four Hundred Sixty Three and 14/100;Methamphetamine; and a 2004 General MotorsHummer H2, SC 05–01 (Muscogee (Creek)2005)

The forfeiture taking place is an in rem civilaction against property used to transport orstore drugs on tribal property. The forfeitureproceedings are not individual criminal penal-ties. Muscogee (Creek) Nation v. One ThousandFour Hundred Sixty Three and 14/100; Metham-

phetamine; and a 2004 General Motors HummerH2, SC 05–01 (Muscogee (Creek) 2005)


Under traditional Mvskoke law controversieswere resolved by clan Vculvkvlke (elders). Theirintegrity was considered beyond reproach. Theywere obligated by the responsibilities of theirposition to decide cases fairly, and honestly,regardless of clan or family affiliation. In Re:The Practice of Law Before the Courts of theMuscogee (Creek) Nation, SC 04–02 (Muscogee(Creek) 2005)


This Court views the Canons as mandatoryminimum standard; not as maximum require-ments. In Re: The Practice of Law Before theCourts of the Muscogee (Creek) Nation, SC 04–02(Muscogee (Creek) 2005)


Muscogee (Creek) Nation’s Supreme Courtmay take judicial notice of fact that personshave not been confirmed in their appointmentsto cabinet positions in Nation’s executivebranch, may declare such positions vacant, andmay issue permanent injunction regarding for-mer occupants of such positions and their cur-rent status. Cox v. Kamp, 2 Okla. Trib. 303(Muscogee (Creek) 1991).

Tribal Supreme Court has power to vacatecontempt enforcement decree subsequent topurging of contempt. In re Financial Services, 2Okla. Trib. 185 (Muscogee (Creek) 1991).

Where emergency exists due to expiration ofall terms on an appointed tribal board, andwhere no one has been nominated and/or con-firmed to fill the vacancies, tribal SupremeCourt may designate persons to sit on suchboard pending nomination and/or confirmationof their successors. In re Hospital and ClinicsBoard, 2 Okla. Trib. 155 (Muscogee (Creek)1991).

Tribal Supreme Court has power, when en-forcing sanctions pursuant to a finding of con-tempt, to order financial institutions holdingtribal funds to desist from paying such funds toa tribal official in contempt. In re FinancialServices, 2 Okla. Trib. 142 (Muscogee (Creek)1990).

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Tribal Supreme Court has authority to modifydistrict court’s order in a manner more favor-able to appellee, where underlying facts warrantmodification to correspond to relief petitionedand prayed for by appellee. Bruner v. Tax Com-mission, 1 Okla. Trib. 102 (Muscogee (Creek)1987).


Tribal Supreme Court has inherent power todirect that only duly licensed and admitted topractice attorneys may represent litigants incourts of Muscogee (Creek) Nation. Beaver v.National Council, 1 Okla. Trib. 57 (Muscogee(Creek) 1986).

Courts may declare a particular candidate tobe the successful candidate in a particular elec-tion. Beaver v. National Council, 1 Okla. Trib. 57(Muscogee (Creek) 1986).

The Supreme Court is a necessary and sepa-rate branch of the Muscogee (Creek) Nationinstilled with the Judicial Authority and powerof the Muscogee (Creek) Nation. Done in Confer-ence, October 31, 1986 (Muscogee (Creek) Nation(1986))




District Court of Muscogee (Creek) Nationhas power to direct discovery in civil cases, andto monetarily sanction a party where warrantedby course of discovery proceedings. Perry v.Holdenville Creek Community, 3 Okla. Trib. 320(Musc. (Cr.) D.Ct. 1993).

District Court of Muscogee (Creek) Nationmay impose fines on officials of Nation’s execu-

tive branch for failure to comply with writ ofmandamus directing them to comply with validand constitutional tribal ordinance. Frye v. Cox,2 Okla. Trib. 179 (Musc. (Cr.) D.Ct. 1991).


For nearly two centuries now, we have recog-nized Indian tribes as ‘‘distinct, independentpolitical communities,’’ Worcester v. Georgia, 6Pet. 515 (1832), qualified to exercise many ofthe powers and prerogatives of self-govern-ment.(internal cite omitted) Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)

We have frequently noted, however, that the‘‘sovereignty that the Indian tribes retain is of aunique and limited character.’’ (citing UnitedStates v. Wheeler, 435 U.S. 313 (1978)). PlainsCommercial Bank v. Long Family Land & CattleCo. et al., 128 S.Ct. 2709 (2008)

It[sovereignty] centers on the land held by thetribe and on tribal members within the reserva-tion. Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)

But tribes do not, as a general matter, possessauthority over non-Indians who come withintheir borders: ‘‘[T]he inherent sovereign powersof an Indian tribe do not extend to the activitiesof nonmembers of the tribe.’’ (citing Montana v.United States, 450 U.S. 544 (1981)) Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)

As we explained in Oliphant v. SuquamishTribe, 435 U.S. 191 (1978), the tribes have, byvirtue of their incorporation into the Americanrepublic, lost ‘‘the right of governing TTT per-son[s] within their limits except themselves.’’(emphasis and internal quotation marks omit-ted). This general rule restricts tribal authorityover nonmember activities taking place on thereservation, and is particularly strong when thenonmember’s activity occurs on land owned infee simple by non-Indians—what we have called‘‘non-Indian fee land.’’ (quoting Strate v. A–1Contractors, 520 U.S. 438, 446 (1997)) PlainsCommercial Bank v. Long Family Land & CattleCo. et al., 128 S.Ct. 2709 (2008)

Our cases have made clear that once triballand is converted into fee simple, the tribe losesplenary jurisdiction over it. Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)

[w]hen the tribe or tribal members convey aparcel of fee land ‘‘to non-Indians, [the tribe]loses any former right of absolute and exclusiveuse and occupation of the conveyed lands.’’

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(quoting South Dakota v. Bourland, 508 U.S.679 (1993)) (emphasis in original) Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)


We have recognized two exceptions to thisprinciple, circumstances in which tribes mayexercise ‘‘civil jurisdiction over non-Indians ontheir reservations, even on non-Indian feelands.’’ First, ‘‘[a] tribe may regulate, throughtaxation, licensing, or other means, the activi-ties of nonmembers who enter consensual rela-tionships with the tribe or its members, throughcommercial dealing, contracts, leases, or otherarrangements.’’ Second, a tribe may exercise‘‘civil authority over the conduct of non-Indianson fee lands within the reservation when thatconduct threatens or has some direct effect onthe political integrity, the economic security, orthe health or welfare of the tribe.’’ (quotingMontana v. United States, 450 U.S. 544 (1981))(internal cites omitted) Plains Commercial Bankv. Long Family Land & Cattle Co. et al., 128S.Ct. 2709 (2008)

By their terms, the exceptions [announced inMontana v. United States, 450 U.S. 544 (1981)]concern regulation of ‘‘the activities of non-members’’ or ‘‘the conduct of non-Indians onfee land.’’ (emphasis in original) Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)

Given Montana’s ‘‘general proposition thatthe inherent sovereign powers of an Indian tribedo not extend to the activities of nonmembers ofthe tribe, efforts by a tribe to regulate nonmem-bers, especially on non-Indian fee land, are pre-sumptively invalid,’’ [quoting Montana v. UnitedStates, 450 U.S. 544 (1981) and Atkinson Trad-ing Co. v. Shirley, 532 U.S. 645 (2001)] PlainsCommercial Bank v. Long Family Land & CattleCo. et al., 128 S.Ct. 2709 (2008)

The burden rests on the tribe to establish oneof the exceptions to Montana’s [Montana v.United States, 450 U.S. 544 (1981)] general rulethat would allow an extension of tribal authorityto regulate nonmembers on non-Indian feeland. Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)

According to our precedents, ‘‘a tribe’s adju-dicative jurisdiction does not exceed its legisla-tive jurisdiction.’’ We reaffirm that principletodayTTT(quoting Strate v. A–1 Contractors, 520U.S. 438 (1997)) (internal cites omitted) PlainsCommercial Bank v. Long Family Land & CattleCo. et al., 128 S.Ct. 2709 (2008)

Montana [Montana v. United States, 450 U.S.544 (1981)] does not permit Indian tribes toregulate the sale of non-Indian fee land. Mon-

tana and its progeny permit tribal regulation ofnonmember conduct inside the reservation thatimplicates the tribe’s sovereign interests. Mon-tana expressly limits its first exception to the‘‘activities of nonmembers,’’ allowing these tobe regulated to the extent necessary ‘‘to protecttribal self-government [and] to control internalrelations.’’ Plains Commercial Bank v. LongFamily Land & Cattle Co. et al., 128 S.Ct. 2709(2008)

We have upheld as within the tribe’s sover-eign authority the imposition of a severance taxon natural resources removed by nonmembersfrom tribal land. Merrion v. Jicarilla ApacheTribe, 455 U.S. 130 (1982). We have approvedtribal taxes imposed on leasehold interests heldin tribal lands, as well as sales taxes imposed onnonmember businesses within the reservation.Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195(1985). We have similarly approved licensingrequirements for hunting and fishing on triballand. See New Mexico v. Mescalero ApacheTribe, 462 U.S. 324 (1983)(internal cites omit-ted) Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)

The logic of Montana [Montana v. UnitedStates, 450 U.S. 544 (1981)] is that certain activ-ities on non-Indian fee land (say, a businessenterprise employing tribal members) or certainuses (say, commercial development) may in-trude on the internal relations of the tribe orthreaten tribal self-rule. To the extent they do,such activities or land uses may be regulated.Plains Commercial Bank v. Long Family Land &Cattle Co. et al., 128 S.Ct. 2709 (2008)

Put another way, certain forms of nonmem-ber behavior, even on non-Indian fee land, maysufficiently affect the tribe as to justify tribaloversight. While tribes generally have no inter-est in regulating the conduct of nonmembers,then, they may regulate nonmember behaviorthat implicates tribal governance and internalrelations. Plains Commercial Bank v. Long Fam-ily Land & Cattle Co. et al., 128 S.Ct. 2709(2008)

The tribe’s ‘‘traditional and undisputed powerto exclude persons’’ from tribal land, for exam-ple, gives it the power to set conditions on entryto that land via licensing requirements andhunting regulations (quoting Duro v. Reina, 495U.S. 676 (1990)) Plains Commercial Bank v.Long Family Land & Cattle Co. et al., 128 S.Ct.2709 (2008)

The power to tax certain nonmember activitycan also be justified as ‘‘a necessary instrumentof self-government and territorial management’’insofar as taxation ‘‘enables a tribal governmentto raise revenues for its essential services,’’ topay its employees, to provide police protection,and in general to carry out the functions thatkeep peace and order (quoting Merrion v. Jicar-illa Apache Tribe, 455 U.S. 130 (1982)) (internalquotes omitted) Plains Commercial Bank v. LongFamily Land & Cattle Co. et al., 128 S.Ct. 2709(2008)

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By definition, fee land owned by nonmembershas already been removed from the tribe’s im-mediate control. [quoting Strate v. A–1 Contrac-tors, 520 U.S. 438 (1997)] It has already beenalienated from the tribal trust. The tribe cannotjustify regulation of such land’s sale by refer-ence to its power to superintend tribal land,then, because non-Indian fee parcels haveceased to be tribal land. (emphasis in original)Plains Commercial Bank v. Long Family Land &Cattle Co. et al., 128 S.Ct. 2709 (2008)

Any direct harm to its political integrity thatthe tribe sustains as a result of fee land sale issustained at the point the land passes fromIndian to non-Indian hands. It is at that pointthe tribe and its members lose the ability to usethe land for their purposes. Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)

The uses to which the land is put may verywell change from owner to owner, and thoseuses may well affect the tribe and its members.As our cases bear out, the tribe may quite legiti-mately seek to protect its members from nox-ious uses that threaten tribal welfare or securi-ty, or from nonmember conduct on the landthat does the same.(internal cite omitted, em-phasis in original). Plains Commercial Bank v.Long Family Land & Cattle Co. et al., 128 S.Ct.2709 (2008)

[t]he key point is that any threat to the tribe’ssovereign interests flows from changed uses ornonmember activities, rather than from themere fact of resale. The tribe is able fully tovindicate its sovereign interests in protecting itsmembers and preserving tribal self-governmentby regulating nonmember activity on the land,within the limits set forth in our cases. The tribehas no independent interest in restraining alien-ation of the land itself, and thus, no authority todo so. Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)

Not only is regulation of fee land sale beyondthe tribe’s sovereign powers, it runs the risk ofsubjecting nonmembers to tribal regulatory au-thority without commensurate consent. Tribalsovereignty, it should be remembered, is ‘‘asovereignty outside the basic structure of theConstitution.’’ (quoting United States v. Lara,541 U.S. 193 (2004)) Plains Commercial Bank v.Long Family Land & Cattle Co. et al., 128 S.Ct.2709 (2008)



[n]onmembers have no part in tribal govern-ment—they have no say in the laws and regula-tions that govern tribal territory. Consequently,those laws and regulations may be fairly im-

posed on nonmembers only if the nonmemberhas consented, either expressly or by his ac-tions. Even then, the regulation must stem fromthe tribe’s inherent sovereign authority to setconditions on entry, preserve tribal self-govern-ment, or control internal relations. Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)






[t]he Bracker [White Mountain Apache Tribe v.Bracker, 448 U.S. 136 (1980)] interest-balancingtest applies only where ‘‘a State asserts authori-ty over the conduct of non-Indians engaging inactivity on the reservation.’’ It does not applywhere, as here, a state tax is imposed on a non-Indian and arises as a result of a transactionthat occurs off the reservation. (internal citationomitted) Wagnon v. Prairie Band PotawatomiNation, 546 U.S. 95 (2005)

[u]nder our Indian tax immunity cases, the‘‘who’’ and the ‘‘where’’ of the challenged taxhave significant consequences. We have deter-mined that ‘‘[t]he initial and frequently disposi-tive question in Indian tax cases TTT is whobears the legal incidence of [the] tax,’’ and that

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the States are categorically barred from placingthe legal incidence of an excise tax ‘‘on a tribeor on tribal members for sales made inside Indi-an country’’ without congressional authoriza-tion (emphasis in original)(quoting OklahomaTax Comm’n v. Chickasaw Nation, 515 U.S. 450(1995)) Wagnon v. Prairie Band Potawatomi Na-tion, 546 U.S. 95 (2005)

Limiting the interest-balancing test exclusive-ly to on-reservation transactions between a non-tribal entity and a tribe or tribal member isconsistent with our unique Indian tax immunityjurisprudence. We have explained that this ju-risprudence relies ‘‘heavily on the doctrine oftribal sovereignty TTT which historically gavestate law ‘no role to play’ within a tribe’s terri-torial boundaries.’’ (emphasis in original, quot-ing Oklahoma Tax Commission v. Sac and FoxNation, 508 U.S. 114 (1993)) Wagnon v. PrairieBand Potawatomi Nation, 546 U.S. 95 (2005)

We have further explained that the doctrine oftribal sovereignty, which has a ‘‘significant geo-graphical component,’’ requires us to ‘‘re-vers[e]’’ the ‘‘general rule’’ that ‘‘exemptionsfrom tax laws should TTT be clearly expressed.’’And we have determined that the geographicalcomponent of tribal sovereignty ‘‘provide[s] abackdrop against which the applicable treatiesand federal statutes must be read.’’ (internalcites omitted, quoting from Oklahoma Tax Com-mission v. Sac and Fox Nation, 508 U.S. 114(1993) and White Mountain Apache Tribe v.Bracker, 448 U.S. 136 (1980)) Wagnon v. PrairieBand Potawatomi Nation, 546 U.S. 95 (2005)

[W]e have concluded that ‘‘[a]bsent expressfederal law to the contrary, Indians going be-yond reservation boundaries have generallybeen held subject to nondiscriminatory statelaw otherwise applicable to all citizens of theState.’’ (quoting Mescalero Apache Tribe v.Jones, 411 U.S. 145 (1973)) Wagnon v. PrairieBand Potawatomi Nation, 546 U.S. 95 (2005)

If a State may apply a nondiscriminatory taxto Indians who have gone beyond the bound-aries of the reservation, then it follows that itmay apply a nondiscriminatory tax where, ashere, the tax is imposed on non-Indians as aresult of an off-reservation transaction. Wagnonv. Prairie Band Potawatomi Nation, 546 U.S. 95(2005)


[i]n Duro v. Reina, [Duro v. Reina, 495 U.S.676 (1990)], this Court had held that a tribe nolonger possessed inherent or sovereign authorityto prosecute a ‘‘nonmember Indian.’’ But itpointed out that, soon after this Court decidedDuro, Congress enacted new legislation specifi-cally authorizing a tribe to prosecute Indianmembers of a different tribe. [Act of Oct. 28,1991, 105 Stat. 646]. That new statute, in per-

mitting a tribe to bring certain tribal prosecu-tions against nonmember Indians, does not pur-port to delegate the Federal Government’s ownfederal power. Rather, it enlarges the tribes’ own‘‘powers of self-government’’ to include ‘‘theinherent power of Indian tribes, hereby recog-nized and affirmed, to exercise criminal juris-diction over all Indians,’’ including nonmem-bers. 25 U.S.C. § 1301(2) (emphasis added inoriginal). U.S. v. Lara, 541 U.S. 193 (2004)




The ‘‘central function of the Indian Com-merce Clause,’’ we have said, ‘‘is to provideCongress with plenary power to legislate in thefield of Indian affairs.’’ (quoting Cotton Petro-leum Corp. v. New Mexico, 490 U.S. 163 (1989))U.S. v. Lara, 541 U.S. 193 (2004)

We recognize that in 1871 Congress endedthe practice of entering into treaties with theIndian tribes. 25 U.S.C. § 71. But the statutesaved existing treaties from being ‘‘invalidatedor impaired,’’ and this Court has explicitly stat-ed that the statute ‘‘in no way affected Con-gress’ plenary powers to legislate on problemsof Indians,’’(quoting Antoine v. Washington, 420U.S. 194 (1975)) U.S. v. Lara, 541 U.S. 193(2004)

Congress, with this Court’s approval, has in-terpreted the Constitution’s ‘‘plenary’’ grants ofpower as authorizing it to enact legislation thatboth restricts and, in turn, relaxes those restric-tions on tribal sovereign authority. U.S. v. Lara,541 U.S. 193 (2004)

Congress has also granted tribes greater au-tonomy in their inherent law enforcement au-

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thority (in respect to tribal members) by in-creasing the maximum criminal penalties tribalcourts may impose. § 4217, 100 Stat. 3207–146,codified at 25 U.S.C. § 1302(7) (raising themaximum from ‘‘a term of six months and afine of $500’’ to ‘‘a term of one year and a fineof $5,000’’). U.S. v. Lara, 541 U.S. 193 (2004)





[t]he Constitution authorizes Congress to per-mit tribes, as an exercise of their inherent tribalauthority, to prosecute nonmember Indians. Wehold that Congress exercised that authority inwriting this statute [Act of Oct. 28, 1991, 105Stat. 646]. U.S. v. Lara, 541 U.S. 193 (2004)

The Court has often said that ‘‘every clauseand word of a statute’’ should, ‘‘if possible,’’ begiven ‘‘effect.’’ (quoting United States v. Me-nasche, 348 U.S. 528 (1955)) Chickasaw Nationv. United States, 534 U.S. 84 (2001)


[t]he canon that assumes Congress intends itsstatutes to benefit the tribes is offset by thecanon that warns us against interpreting federalstatutes as providing tax exemptions unlessthose exemptions are clearly expressed. SeeUnited States v. Wells Fargo Bank, 485 U.S. 351

(1988) Chickasaw Nation v. United States, 534U.S. 84 (2001)


Indian tribes’ regulatory authority over non-members is governed by the principles set forthin Montana v. United States, 450 U.S. 544(1981) Nevada v. Hicks, 533 U.S. 353 (2001)


The ownership status of land, in other words,is only one factor to consider in determiningwhether regulation of the activities of nonmem-bers is ‘‘necessary to protect tribal self-govern-ment or to control internal relations.’’ It maysometimes be a dispositive factor. Nevada v.Hicks, 533 U.S. 353 (2001)





Our cases make clear that the Indians’ rightto make their own laws and be governed bythem does not exclude all state regulatory au-thority on the reservation. State sovereigntydoes not end at a reservation’s border. Thoughtribes are often referred to as ‘‘sovereign’’ enti-ties, it was ‘‘long ago’’ that ‘‘the Court departedfrom Chief Justice Marshall’s view that ‘thelaws of [a State] can have no force’ withinreservation boundaries.’’ (quoting both Worces-ter v. Georgia, 6 Pet. 515, 561 (1832), WhiteMountain Apache Tribe v. Bracker, 448 U.S. 136,

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141 (1980)) Nevada v. Hicks, 533 U.S. 353(2001)



When, however, state interests outside thereservation are implicated, States may regulatethe activities even of tribe members on triballand. Nevada v. Hicks, 533 U.S. 353 (2001)

It is also well established in our precedentthat States have criminal jurisdiction over reser-vation Indians for crimes committed (as was thealleged poaching in this case) off the reserva-tion. (quoting Mescalero Apache Tribe v. Jones,411 U.S. 145 (1973)) Nevada v. Hicks, 533 U.S.353 (2001)

We conclude TTT, that tribal authority to regu-late state officers in executing process related tothe violation, off reservation, of state laws is notessential to tribal self-government or internalrelations–to ‘‘the right to make laws and beruled by them.’’ Nevada v. Hicks, 533 U.S. 353(2001)

The State’s interest in execution of process isconsiderable, and even when it relates to Indi-an-fee lands it no more impairs the tribe’s self-government than federal enforcement of federallaw impairs state government. Nevada v. Hicks,533 U.S. 353 (2001)

The States’ inherent jurisdiction on reserva-tions can of course be stripped by Congress.Nevada v. Hicks, 533 U.S. 353 (2001)


25 U.S.C. § 2804 which permits federal-stateagreements enabling state law-enforcementagents to act on reservations, applies only todeputizing them for the enforcement of federalor tribal criminal law. Nothing in the federalstatutory scheme prescribes, or even remotelysuggests, that state officers cannot enter a reser-vation (including Indian-fee land) to investigate

or prosecute violations of state law occurringoff the reservation. Nevada v. Hicks, 533 U.S.353 (2001)







State officials operating on a reservation toinvestigate off-reservation violations of state laware properly held accountable for tortious con-duct and civil rights violations in either state orfederal court, but not in tribal court. Nevada v.Hicks, 533 U.S. 353 (2001)

Tribal jurisdiction is limited: For powers notexpressly conferred them by federal statute ortreaty, Indian tribes must rely upon their re-tained or inherent sovereignty. Atkinson TradingCompany v. Shirley, Jr. et al., 532 U.S. 645(2001)

An Indian tribe’s sovereign power to tax–whatever its derivation–reaches no further than

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tribal land. Atkinson Trading Company v. Shir-ley, Jr. et al.., 532 U.S. 645 (2001)

TTT we think the generalized availability oftribal services patently insufficient to sustain theTribe’s civil authority over nonmembers on non-Indian fee land. The consensual relationshipmust stem from ‘‘commercial dealing, con-tracts, leases, or other arrangements,’’ Montana[450 U.S. 544 (1981)], and a nonmember’s actu-al or potential receipt of tribal police, fire, andmedical services does not create the requisiteconnection. Atkinson Trading Company v. Shir-ley, Jr. et al., 532 U.S. 645 (2001)

Irrespective of the percentage of non-Indianfee land within a reservation, Montana’s [450U.S. 544 (1981)], second exception grants Indi-an tribes nothing ‘‘beyond what is necessary toprotect tribal self-government or to control in-ternal relations.’’ (quoting from Strate v. A–1Contractors, 530 US 438 (1997)) Atkinson Trad-ing Company v. Shirley, Jr. et al., 532 U.S. 645(2001)

Indian tribes are ‘‘unique aggregations pos-sessing attributes of sovereignty over both theirmembers and their territory,’’ but their depen-dent status generally precludes extension oftribal civil authority beyond these limits. (quot-ing United States v. Mazurie, 419 U.S. 544(1975)) Atkinson Trading Company v. Shirley, Jr.et al., 532 U.S. 645 (2001)



Montana thus described a general rule that,absent a different congressional direction, Indi-an tribes lack civil authority over the conductof nonmembers on non Indian land within areservation, subject to two exceptions: The firstexception relates to nonmembers who enterconsensual relationships with the tribe or itsmembers; the second concerns activity that di-rectly affects the tribe’s political integrity, eco-nomic security, health, or welfare TT (quoting

Montana v. United States, 450 U.S. 544 (1981))Strate v. A–1 Contractors, 520 U.S. 438 (1997)



Respect for tribal self government made itappropriate ‘‘to give the tribal court a full op-portunity to determine its own jurisdiction.’’(quoting Iowa Mutual Insurance Co. v. LaPlante,480 U.S. 9 (1987)) Strate v. A–1 Contractors, 520U.S. 438 (1997)

Tribal authority over the activities of non In-dians on reservation lands is an important partof tribal sovereignty. Civil jurisdiction over suchactivities presumptively lies in the tribal courtsunless affirmatively limited by a specific treatyprovision or federal statuteTTTT ‘‘In the absenceof any indication that Congress intended thediversity statute to limit the jurisdiction of thetribal courts, we decline petitioner’s invitationto hold that tribal sovereignty can be impairedin this fashion.’’ (quoting Iowa Mutual Insur-ance Co. v. LaPlante, 480 U.S. 9 (1987)) Strate v.A–1 Contractors, 520 U.S. 438 (1997)


Recognizing that our precedent has been vari-ously interpreted, we reiterate that NationalFarmers and Iowa Mutual [National FarmersUnion Ins. Cos. v. Crow Tribe, 471 U.S. 845(1985), and Iowa Mutual Insurance Co. v. La-Plante, 480 U.S. 9 (1987)] enunciate only anexhaustion requirement, a ‘‘prudential rule,’’,based on comity. These decisions do not expandor stand apart from Montana’s instruction on‘‘the inherent sovereign powers of an Indiantribe.’’ [Montana v. United States, 450 U.S. 544(1981)] (internal citations omitted) Strate v. A–1Contractors, 520 U.S. 438 (1997)

While Montana immediately involved regula-tory authority, the Court broadly addressed theconcept of ‘‘inherent sovereignty.’’ Regarding

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activity on non Indian fee land within a reserva-tion, Montana delineated—in a main rule andexceptions—the bounds of the power tribes re-tain to exercise ‘‘forms of civil jurisdiction overnon Indians.’’ As to nonmembers, we hold, atribe’s adjudicative jurisdiction does not exceedits legislative jurisdiction. Absent congressionaldirection enlarging tribal court jurisdiction, weadhere to that understanding. (quoting Montanav. United States, 450 U.S. 544 (1981)) Strate v.A–1 Contractors, 520 U.S. 438 (1997)


A grant over land belonging to a tribe re-quires ‘‘consent of the proper tribal officials,’’§ 324, and the payment of just compensation,§ 325. [25 U.S.C. §§ 323–328] Strate v. A–1Contractors, 520 U.S. 438 (1997)

Read in isolation, the Montana [Montana v.United States, 450 U.S. 544 (1981)] rule’s sec-ond exception can be misperceived. Key to itsproper application, however, is the Court’s pref-ace: ‘‘Indian tribes retain their inherent power[to punish tribal offenders,] to determine tribalmembership, to regulate domestic relationsamong members, and to prescribe rules of in-heritance for membersTTTT But [a tribe’s inher-ent power does not reach] beyond what is nec-essary to protect tribal self government or tocontrol internal relations.’’ (quoting Montana)Strate v. A–1 Contractors, 520 U.S. 438 (1997)


‘‘Tribal sovereign immunity is a matter ofsubject matter jurisdiction, which may be chal-lenged by a motion to dismiss under Fed. R.Civ. P. 12(b)(1).’’ E.F.W. v. St. Stephen’s IndianHigh Sch., 264 F.3d 1297, 1302–03 (10th Cir.2001) (citation omitted). Miner Electric and Rus-sell Miner v. Muscogee (Creek) Nation, 505 F.3d1007 (10th Cir. 2007)

‘‘Indian tribes have long been recognized aspossessing the common-law immunity from suittraditionally enjoyed by sovereign powers.’’[quoting Santa Clara Pueblo v. Martinez, 436U.S. 49, 58 (1978)] Miner Electric and RussellMiner v. Muscogee (Creek) Nation, 505 F.3d1007 (10th Cir. 2007)

In Kiowa Tribe of Oklahoma v. Manufactur-ing Technologies, Inc., 523 U.S.751, 754 (1998),the Supreme Court affirmed that, ‘‘[a]s a mat-ter of federal law, an Indian tribe is subject tosuit only where Congress has authorized thesuit or the tribe has waived its immunity.’’While noting that ‘‘[t]here are reasons to doubt

the wisdom of perpetuating the doctrine,’’ itnonetheless rejected the defendant’s invitationto narrow the scope of tribal sovereign immu-nity. The Court recognized that it had ‘‘takenthe lead in drawing the bounds of tribal immu-nity,’’ but it deferred to Congress to limit orabrogate the doctrine through legislation, as ithas done with respect to limited classes ofsuits.(internal quotes omitted) Miner Electricand Russell Miner v. Muscogee (Creek) Nation,505 F.3d 1007 (10th Cir. 2007)

This court has applied the Supreme Court’sstraightforward test to uphold Indian tribes’ im-munity from suit. Miner Electric and RussellMiner v. Muscogee (Creek) Nation, 505 F.3d1007 (10th Cir. 2007)

Therefore, in an action against an Indiantribe, we conclude that § 1331 will only confersubject matter jurisdiction where another stat-ute provides a waiver of tribal sovereign immu-nity or the tribe unequivocally waives its im-munity. Miner Electric and Russell Miner v.Muscogee (Creek) Nation, 505 F.3d 1007 (10thCir. 2007)


We distinguished Santa Clara Pueblo, [SantaClara Pueblo v. Martinez, 436 U.S. 49, 58(1978)] noting that the Supreme Court in thatcase emphasized the availability of the tribalcourts and the intra-tribal nature of the issues,whereas in Dry Creek [Dry Creek Lodge, Inc. v.Arapahoe & Shoshone Tribes, 623 F.2d 682(10th Cir. 1980)] the plaintiffs were non-Indianswho had been denied any remedy in a tribalforum. Miner Electric and Russell Miner v. Mus-cogee (Creek) Nation, 505 F.3d 1007 (10th Cir.2007)

This court later expressly limited the holdingin Dry Creek [non-Indian denied any remedy ina tribal court forum, Dry Creek Lodge, Inc. v.Arapahoe & Shoshone Tribes, 623 F.2d 682(10th Cir. 1980)] to apply only where the tribalremedy is ‘‘shown to be nonexistent by an actu-al attempt’’ and not merely by an allegation that

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resort to a tribal remedy would be futile. [quot-ing White v. Pueblo of San Juan, 728 F.2d 1307(10th Cir. 1984)] Miner Electric and RussellMiner v. Muscogee (Creek) Nation, 505 F.3d1007 (10th Cir. 2007)

The Miner parties clearly fail to come withinthe narrow Dry Creek [Dry Creek Lodge, Inc. v.Arapahoe & Shoshone Tribes, 623 F.2d 682(10th Cir. 1980)] exception to tribal sovereignimmunity. Considering whether they could havebrought this action in the Tribal Court ratherthan the district court, they hypothesize that theNation would have claimed immunity from suitin that forum as well. But they must show anactual attempt; their assumption of futility ofthe tribal-court remedy is not enough. MinerElectric and Russell Miner v. Muscogee (Creek)Nation, 505 F.3d 1007 (10th Cir. 2007)



Indian tribes possess the same immunity fromsuit traditionally enjoyed by sovereign powers.Santa Clara Pueblo, [Santa Clara Pueblo v. Mar-tinez, 436 U.S. 49 (1978)]. As with other formsof sovereign immunity, tribal immunity ‘‘is sub-ject to the superior and plenary control of Con-gress.’’ Accordingly, absent explicit waiver ofimmunity or express authorization by Congress,federal courts do not have jurisdiction to enter-tain suits against an Indian tribe. (internal citesomitted). Walton v. Pueblo et al., 443 F.3d 1274(10th Cir. 2006)


Dry Creek [Dry Creek Lodge, Inc. v. Arapahoe &Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980)]has come to stand for the proposition that feder-al courts have jurisdiction to hear a suit against

an Indian tribe under 25 U.S.C. § 1302, not-withstanding Santa Clara Pueblo, [Santa ClaraPueblo v. Martinez, 436 U.S. 49 (1978)]whenthree circumstances are present: (1) the disputeinvolves a non-Indian; (2) the dispute does notinvolve internal tribal affairs; and (3) there is notribal forum to hear the dispute. Our jurispru-dence in this field is circumspect, and we haveemphasized the need to construe the Dry Creekexception narrowly in order to prevent a con-flict with Santa Clara.(internal cites omitted)Walton v. Pueblo et al., 443 F.3d 1274 (10th Cir.2006)



Oklahoma recognizes the clean-hands doc-trine: Under the maxim, [h]e who comes intoequity must come with clean hands, a court ofequity will not lend its aid in any manner to onewho has been guilty of unlawful or inequitableconduct in a transaction from which he seeksrelief, nor to one who has been a participant ina transaction the purpose of which was to de-fraud a third person, to defraud creditors, or todefraud the governmentTTTT [quoting Camp v.Camp, 196 Okla. 199 (1945) (internal quotationmarks omitted)]. A related doctrine states, ‘‘Eq-uity will not relieve one party against anotherwhen both are in pari delicto.’’ Estate of Brunerv. Bruner, 338 F.3d 1172 (10th Cir. 2003)

[t]he clean-hands doctrine ‘‘applie[s] not onlyto the participants in the transaction, but totheir heirs, and to all parties claiming under orthrough either of them.’’ [quoting Rust v. Gilles-pie, 90 Okla. 59 (1923)]. Although there is anexception to this rule for heirs who did notparticipate in the fraudulent conduct and canprove their claims without establishing the un-derlying fraud, [quoting Becker v. State, 312P.2d 935 (Okla.1957)], that exception does notapply. Here, proof of the fraudulent scheme isessential to Plaintiff’s claims (internal citesomitted) Estate of Bruner v. Bruner, 338 F.3d1172 (10th Cir. 2003)

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This Court acknowledged Oklahoma did nottake steps to assume jurisdiction under the pre-vious PL–280 in Lewis v. Sac and Fox Tribe ofOklahoma Housing Authority. We held that‘‘[b]ecause Oklahoma did not take the appropri-ate steps to take jurisdiction under PL–280, theproper inquiry to be made in this case mustfocus upon the congressional policy of fosteringtribal autonomy in the light of pertinent U.S.Supreme Court jurisprudence.’’ Cossey v. Chero-kee Nation, 212 P.3d 447 (Okla. 2009)





Thus, a tribal court is not a court of generaljurisdiction. Its jurisdiction could be asserted in

matters involving non-Indians only when theiractivities on Indian lands are activities that maybe regulated by the Tribe. (citing Nevada v.Hicks, 533 U.S. 343 (2001)) Cossey v. CherokeeNation, 212 P.3d 447 (Okla. 2009)



[t]ribal authorities may investigate unautho-rized possession of firearms on gaming premis-es which is proscribed by tribal law. See Musco-gee (Creek) Nation Code Ann., tit. 21.,§ 5–116(C). United States v. Green, 140 Fed.Appx. 798 (10th Cir. 2005)

3. Jurisdiction—In generalCourts are required to hear actual cases and

controversies and not hypothetical ones. How-ever, the U.S. Supreme Court has stated a veryimportant exception to this rule: if a case iscapable of repetition, yet evading review, theCourt should and could hear and decide thecase. Oliver v. Muscogee (Creek) National Coun-cil, SC 06–04 (Muscogee (Creek) 2006)


The Court decided it had judicial power torender its decision in that case, not based on aspecific grant of power, but on the impliedpowers derived from examination of the UnitedStates Constitution. See Marbury v. Madison, 1Cranch, 137. The Court then decided, while notfollowing United States law, the United StateSupreme Court’s decision was persuasive inas-much as it was the opinion of the court that theMuscogee Nation Constitution was modeled af-

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ter the U.S. Constitution as to the separation ofpowers doctrine. Ellis v. Muscogee (Creek) Na-tional Council, SC 06–07 (Muscogee (Creek)2007)

The Muscogee Nation Supreme Court wascreated by the Muscogee Nation Constitutionand as such it is subject to those limitationscontained in the Constitution. Ellis v. Muscogee(Creek) National Council, SC 06–07 (Muscogee(Creek) 2007)

The Supreme Court has the power to enforceits orders, and judgments subject to the rules ofprocedure as to ‘‘due process’’ which it hasadopted. Ellis v. Muscogee (Creek) NationalCouncil, SC 06–07 (Muscogee (Creek) 2007)

Indian tribes were not made subject to theBill of Rights. However, the laws of the Musco-gee Nation are subject to the limitation imposedupon the tribal governments by the Indian CivilRights Act of 1968, as amended, found at 25U.S.C. 1301 et seq. This limits the powers oftribal governments by making certain provi-sions of the Bill of Rights applicable to tribalgovernments.Ellis v. Muscogee (Creek) NationalCouncil, SC 06–07 (Muscogee (Creek) 2007)

We think that the highest court of a sovereigngovernment, when created by the Constitutionof that government which recognizes the princi-ple of separation of powers, is entitled to be freeto function as the framers of that Constitutionintended, and it should guard its prerogativesjealously to preserve its powers as an indepen-dent co-equal branch of government. Ellis v.Muscogee (Creek) National Council, SC 06–07(Muscogee (Creek) 2007)

This Court holds that the tribal law referredto as NCA 82–30 at ’204 requiring the SupremeCourt to grant a jury trial when requested by aparty infringes on the inherent power of theCourt to enforce its orders and maintain orderlyadministration of justice, and is therefore un-constitutional. Ellis v. Muscogee (Creek) Nation-al Council, SC 06–07 (Muscogee (Creek) 2007)




[T]his Court reminds the parties that the Indi-an Civil Rights Act states that: ‘‘no tribe inexercising its powers of self-government

SHALL: deny to any persons within its jurisdic-tion the Equal Protection of the laws.’’ (Empha-sis added). This mandate in the Indian CivilRights Act (‘‘ICRA’’) requires equal voting rightsto all eligible tribal voters. The Equal Protectionclause of the ICRA thus requires a ‘‘one manone vote’’ rule to be obeyed in this tribe’s elec-toral process. (emphasis and bold in original)Harjo v. Muscogee (Creek) Nation ElectionBoard, SC 07–50 (Muscogee (Creek) 2007)

For a Court of the Muscogee (Creek) Nationto hold someone in indirect civil contempt, theCourt must determine by clear and convincingevidence that 1) the allegedly violated Orderwas valid and lawful; 2) the Order was clear,definite, and unambiguous; and 3) the allegedviolator(s) had the ability to comply with theOrder. Willful is defined as ‘‘acts which areintentional, conscious, and directed towardsachieving a purpose.’’ Ellis v. Muscogee (Creek)Nation National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)



As a matter of tribal law, all conduct occur-ring on the Mackey site is subject to the laws ofthe Nation regardless of the status of the par-ties. The Mackey site is under the jurisdiction ofthe Nation because; (1) the land is located with-in the political and territorial boundaries of theNation; and (32) the land is owned by the Na-tion. 27 Muscogee (Creek) Nation Code. Ann.§ 1–102(A)(Territorial Jurisdiction). Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)


Personal jurisdiction exists over all persons,regardless of their status as Indian or non-Indian, in ‘‘cases arising from any action or

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event’’ occurring on the Nation’s Indian Coun-try and in other cases in which the defendanthas established sufficient contacts. Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)







The Nation has exclusive jurisdiction to regu-late the conduct of all persons on tribal land,particularly those that voluntarily come on totribal land for the purpose of patronizing tribal

businesses. Muscogee (Creek) Nation v. OneThousand Four Hundred Sixty Three and 14/100;Methamphetamine; and a 2004 General MotorsHummer H2, SC 05–01 (Muscogee (Creek)2005)

The act of coming on to tribal property andentering the casino for commercial purposesconstitutes a consensual relationship. Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)

There should be no question that the presenceof illegal drugs on a tribe’s reservation is athreat to the health and welfare of the tribe.Illegal drugs are a threat to the health andwelfare of all persons. Muscogee (Creek) Nationv. One Thousand Four Hundred Sixty Three and14/100; Methamphetamine; and a 2004 GeneralMotors Hummer H2, SC 05–01 (Muscogee(Creek) 2005)



The forfeiture taking place is an in rem civilaction against property used to transport orstore drugs on tribal property. The forfeitureproceedings are not individual criminal penal-ties. Muscogee (Creek) Nation v. One ThousandFour Hundred Sixty Three and 14/100; Metham-phetamine; and a 2004 General Motors HummerH2, SC 05–01 (Muscogee (Creek) 2005)

[T]he Nation possess authority to regulatepublic safety through civil laws that restrict thepossession, use or distribution of illegal drugs.Muscogee (Creek) Nation v. One Thousand FourHundred Sixty Three and 14/100; Methamphet-amine; and a 2004 General Motors Hummer H2,SC 05–01 (Muscogee (Creek) 2005)

[T]he Nation’s courts possess civil adjudicato-ry jurisdiction over forfeiture proceedings in-cluding the forfeiture of (1) controlled danger-ous substances; (2) vehicles used to transport orconceal controlled dangerous substances; and(3) monies and currency found in close proximi-ty of a forfeitable substance. Muscogee (Creek)

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Nation v. One Thousand Four Hundred SixtyThree and 14/100; Methamphetamine; and a2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)

The doctrine of sovereign immunity, a condi-tion precedent to filing suit against the GOAB,is often accompanied by the doctrine of quali-fied immunity for government employees actingwithin the scope of their employment. Qualifiedimmunity is not, however, absolute. Molle andChalakee v. The Gaming Operations AuthorityBoard, et al., SC 06–05 (Muscogee (Creek) 2008)

The qualified immunity test requires a two-part analysis: ‘‘(1) Was the law governing theofficial’s conduct clearly established? (2) Underthe law, could a reasonable officer have be-lieved the conduct was lawful?’’ [citing Act-Up/Portland v. Bagley, 988 F.2d 868, 871 (9thCir. 1993); Tribble v. Gardner, 860 F.2d 321, 324(9th Cir. 1988), cert. denied, 490 U.S. 1075(1989).] This Court is persuaded by and herebyadopts the forgoing reasoning regarding the ap-plication of the doctrine of qualified immunity.Molle and Chalakee v. The Gaming OperationsAuthority Board, et al., SC 06–05 (Muscogee(Creek) 2008)

As stated in the Court’s Glass decision,MCNCA 21 § 4–103 (c)(1)(h) is ‘‘valid, clear anddirectly on point.’’ Glass v. Muscogee (Creek)Nation Tulsa Casino, et al.SC 05–04,( 2006)

The simple fact is that the statute does notpreclude an individual from ever being able tofile suit, it merely requires the government orgovernmental agency grant a waiver of sover-eign immunity first. Molle and Chalakee v. TheGaming Operations Authority Board, et al., SC06–05 (Muscogee (Creek) 2008)

Pursuant to NCA 89–21$103, the Court shallfirst apply tribal ordinances in any legal resolu-tion. If there is no applicable tribal ordinance,then the court may process to apply federal law.If no tribal or federal laws are applicable, thenthe Court shall apply Oklahoma law. Brown andWilliamson Tobacco Corp. v. District Court, 5Okla. Trib. 447 (Muscogee (Creek) 1998).

The Court may at various times, adopt certainfederal or state laws or legal concepts into Mus-cogee Nation case law. When this occurs, wemust note that the Muscogee Nation SupremeCourt is only using federal or state principlesfor the purposes of guidance and is merelyincorporating those laws into our common law.Brown and Williamson Tobacco Corp. v. DistrictCourt, 5 Okla. Trib. 447 (Muscogee (Creek)1998).


The Court cannot supersede the powersgranted to us with respect to our appellateauthority. Brown and Williamson Tobacco Corp.

v. District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).



The final order rule is an important elementof our procedural law which serves to avoidunnecessary piecemeal review of lower courtdecisions. Brown and Williamson Tobacco Corp.v. District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).


Whether the Court chooses to adopt legalstandards from other jurisdictions into triballaw and how those standards are interpreted issolely within the realm of the Muscogee (Creek)Nations Supreme Court’s discretion. Brown andWilliamson Tobacco Corp. v. District Court, 5Okla. Trib. 447 (Muscogee (Creek) 1998).


The Supreme Court has a duty to inquire intoits own jurisdiction. Kelly v. Wilde, 5 Okla. Trib.209 (Muscogee (Creek) 1996).

Court recognizes the concept of comitythrough previous order recognizing judicial pro-ceedings of other sovereigns in the Muscogee(Creek) Nations Full Faith and Credit. Grothausv. Halliburton Oil Producing Co., 4 Okla. Trib319 (Muscogee (Creek) 1995).

Supreme Court of the Muscogee (Creek) Na-tion may accept a question of law certified to itby the District Court of the Nation. Reynolds v.Skaggs, 4 Okla. Trib. 51 (Muscogee (Creek)1994).


Indian Tribes may exercise a broad range ofcivil jurisdiction over the activities of non-mem-ber Indians on Indian reservation and in whichtribes have a significant interest. Enlow v. Be-venue, 4 Okla Trib. 175 (Muscogee (Creek)1994).

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Once case or controversy concerning mean-ing of a constitutional provision reaches tribalcourts, such courts become final arbiter as toconstitutionality of governmental actions. Cart-wright v. July, 3 Okla. Trib. 132 (Muscogee(Creek) 1993).

Petitioners Motion to Stay does not fall underany of the categories of appealable cases whichthe Supreme Court has jurisdiction to hear pur-suant to Muscogee (Creek) Nation civil ordi-nances. Health Board v. Skaggs and HealthBoard v. Taylor, 5 Okla. Trib. 442 (Muscogee(Creek) 1991).

NCA 82–30 § 270 (B)(1) provides the Su-preme Court with appellate jurisdiction over allfinal orders. Health Board v. Skaggs and HealthBoard v. Taylor, 5 Okla. Trib. 442 (Muscogee(Creek) 1991).

We do not deny the possibility that in certainextreme and drastic circumstances this Courtmay retain the power to hear certain types ofinterlocutory appeals which are not expresslystated by the Muscogee (Creek) Nation codes.Health Board v. Skaggs and Health Board v.Taylor, 5 Okla. Trib. 442 (Muscogee (Creek)1991).

Courts inability to hear interlocutory appeal isbound by NC 82–30 § 270 (B) unless the legisla-ture chooses to change its limitations. HealthBoard v. Skaggs and Health Board v. Taylor, 5Okla. Trib. 442 (Muscogee (Creek) 1991).

Supreme Court of Muscogee (Creek) Nationmay assume original jurisdiction over challengeto residency of candidate for National Councilafter party protesting candidacy has sought andbeen denied relief by Muscogee (Creek) NationElection Board. Litsey v. Cox, 2 Okla. Trib. 307(Muscogee (Creek) 1991).

Muscogee (Creek) Nation’s Supreme Courtmay take judicial notice of fact that personshave not been confirmed in their appointmentsto cabinet positions in Nation’s executivebranch, may declare such positions vacant, andmay issue permanent injunction regarding for-mer occupants of such positions and their cur-rent status. Cox v. Kamp, 2 Okla. Trib. 303(Muscogee (Creek) 1991).

Muscogee (Creek) Nation Supreme Court haspower to direct Nation’s Principal Chief to showcause as to why he is not in contempt, whereNation’s executive branch or Principal Chiefcontinued employment of individuals in viola-tion of earlier Order from that Court. Cox v.

Kamp, 2 Okla. Trib. 303 (Muscogee (Creek)1991).

Muscogee (Creek) Nation’s Supreme Courtmay issue writ of mandamus directing managerof tribal business to provide books and recordsof such business to auditors upon petition byPrincipal Chief. Cox v. McIntosh, 2 Okla. Trib.182 (Muscogee (Creek) 1991).

Where emergency exists due to expiration ofall terms on an appointed tribal board, andwhere no one has been nominated and/or con-firmed to fill the vacancies, tribal SupremeCourt may designate persons to sit on suchboard pending nomination and/or confirmationof their successors. In re Hospital and ClinicsBoard, 2 Okla. Trib. 155 (Muscogee (Creek)1991).

Muscogee (Creek) Nation’s Constitution veststribal Supreme Court with power to assumeoriginal jurisdiction in case where constitution-ality and meaning of Nation Council ordinanceis involved, and where tribal Principal Chiefmaintains that Tribe lacks a seated district courtjudge. In re District Judge, 2 Okla. Trib. 54(Muscogee (Creek) 1990).

Tribal courts have jurisdiction in cases whereTribe has regulatory jurisdiction pursuant tofederal law. Preferred Mgmt. Corp. v. NationalCouncil, 2 Okla. Trib. 37 (Muscogee (Creek)1990).

Tribal courts do not necessarily have jurisdic-tion over any dispute between tribal membersnon-Indians arising out of contracts; rather,tribal courts’ jurisdiction in such cases is limit-ed by notions of ‘‘minimum contracts’’ and ‘‘tra-ditional notions of fair play and substantial jus-tice.’’ Preferred Mgmt Corp. v. National Council,2 Okla. Trib. 37 (Muscogee (Creek) 1990).

While Article VII of Constitution of Muscogee(Creek) Nation requires that persons elected tooffices of Chief, Second Chief, and membershipon National Council be full citizens of the Tribe(including blood quantum requirements), thatArticle does not impose a similar qualificationon Justices of the Supreme Court or judges ofthe inferior courts of the Tribe. Article III, Sec-tion 4 of Tribe’s constitution is of a generalnature, and therefore subordinate to Article VII.Bruner v. Tax Commission, 1 Okla. Trib. 102(Muscogee (Creek) 1987).

Constitution of Muscogee (Creek) Nation es-tablishes judicial branch as necessary and sepa-rate branch of tribal government, and instills inthat branch judicial authority and power ofMuscogee (Creek) Nation. In re Supreme Court,1 Okla. Trib. 89 (Muscogee (Creek) 1986).

Power and authority of Muscogee (Creek) Na-tion’s Supreme Court may not be decreased by,nor may Court be diminished by, any otherbranch of Muscogee (Creek) Nation’s govern-ment. In re Supreme Court, 1 Okla. Trib. 89(Muscogee (Creek) 1986).

In the case at bar, it was necessary to showonly that notice and due process were afforded

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Appellant at said revocation hearing, and theCourt may take judicial notice of the laws andofficial records of the Muscogee (Creek) Nation.Bruner, d/b/a Chebon’s Indian Smoke Shop v.Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)








Muscogee (Creek) Nation Constitution andstatutes dictate manner in which question of

law are to be addressed by the Court. Muscogee(Creek) Nation v. American Tobacco Co., 5 Okla.Trib. 401 (Musc.(Cr.) D.Ct. 1998).


Jurisdiction includes but is not limited toproperty held in trust by the United States ofAmerica and to such other property as held bythe Muscogee (Creek) Nation. Muscogee (Creek)Nation v. American Tobacco Co., 5 Okla. Trib.401 (Musc. (Cr.) D.Ct. 1998).



Personal jurisdiction shall exist when personis served within jurisdictional territory orserved anywhere in cases arising within territo-rial jurisdiction of the Muscogee (Creek) Nation.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct. 1998).

Defendant’s act of entry into the Muscogee(Creek) Nation by placing their products intothe stream of commerce within the political andterritorial jurisdiction of the Nation thus con-senting to civil jurisdiction of the Muscogee(Creek) Nation. Muscogee (Creek) Nation v.American Tobacco Co., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).



Defendant’s contacts are sufficient both understatutory mandates of the Muscogee (Creek) Na-tion’s statutes and under well established mini-mum contacts jurisprudence developed in thefederal system. Muscogee (Creek) Nation v.

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American Tobacco Co., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).



If tribal regulatory jurisdiction exists thentribal adjudicatory jurisdiction must follow.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct. 1998).

Absent express Congressional enactment tothe contrary, the jurisdiction power of the Mus-cogee (Creek) Nation remains unscathed. Mus-cogee (Creek) Nation v. American Tobacco Co., 5Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Canons of treaty construction developed bythe United States Supreme Court resolve ambi-guities in favor of Indians and that language ofan Indian Treaty is to be understood today asthat same language was understood by tribalrepresentatives when the treaty was negotiated.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).





Court has exclusive jurisdiction of cases in-volving election laws of the Muscogee (Creek)Nation. In re Petition for Irregularities, 5 Okla.Trib. 345 (Musc. (Cr.) D.Ct. 1997).

Candidate not alleging election fraud or irreg-ularities may not be awarded judicial relief un-der Muscogee (Creek) NCA 81–82 § 818. In rePetition for Irregularities, 5 Okla. Trib. 345(Musc. (Cr.) D.Ct. 1997).

District Court of Muscogee (Creek) Nationhas power to direct discovery in civil cases, andto monetarily sanction a party where warrantedby course of discovery proceedings. Perry v.Holdenville Creek Community, 3 Okla. Trib. 320(Musc. (Cr.) D.Ct. 1993).

District Court of Muscogee (Creek) Nationhas power to quiet title to real property. Musco-gee (Creek) Nation v. Checotah Community, 3Okla. Trib. 239 (Musc. (Cr.) D.Ct. 1993).




District Court of Muscogee (Creek) Nationhas power to issue writ of mandamus to Na-tion’s Principal Chief directing him to complywith constitutional tribal ordinance. Frye v. Cox,2 Okla. Trib. 115 (Musc. (Cr.) D.Ct. 1990).

Judicial interpretation of Constitution and Or-dinances of Muscogee (Creek) Nation is vestedonly in judicial branch of Nation. O.C.M.A. v.National Council, 1 Okla. Trib. 293 (Musc. (Cr.)D.Ct. 1989).

While Article VI, section 4 of Constitution ofMuscogee (Creek) Nation empowers NationalCouncil to judge qualifications of its members,or penalize or expel a member, and Article VIII,section 2 provides for recall petitions, courts ofMuscogee (Creek) Nation lack jurisdiction toplace member of National Council on involun-tary ‘‘absentee leave.’’ O.C.M.A. v. NationalCouncil, 1 Okla. Trib. 293 (Musc. (Cr.) D.Ct.1989).

Muscogee (Creek) Nation Constitution pro-vides for tribal jurisdiction based on land statusas it existed in 1900 pursuant to Muscogee(Creek) Nation–United States treaties; this juris-diction is not limited to trust lands, but extends

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to other properties held by the Nation. NationalCouncil v. Preferred Mgmt. Corp., 1 Okla. Trib.278 (Musc. (Cr.) D.Ct. 1989).

Jurisdiction of tribal courts of Muscogee(Creek) Nation is limited to Muscogee (Creek)Nation’s jurisdiction as defined by Article 1,section 2 of tribal constitution. National Councilv. Preferred Mgmt. Corp., 1 Okla. Trib. 278(Musc. (Cr.) D.Ct. 1989).

Jurisdiction of courts of Muscogee (Creek)Nation over non-Indians is protective of inter-ests and security of the tribe, and extends tonon-Indians corporations doing business withthe tribe. National Council v. Preferred Mgmt.Corp., 1 Okla. Trib. 278 (Musc. (Cr.) D.Ct.1989).

Non–Indians engaging in a business activitywhich would not exist without tribal resourcesor support are subject to jurisdiction of tribalcourts. National Council v. Preferred Mgmt. Corp., 1 Okla. Trib. 278 (Muscogee (Cr.) D.Ct.1989).

Non–Indians’ activities on property in trust,owned or controlled by tribe, is subject to juris-diction of tribal courts. National Council v. Pre-ferred Mgmt. Corp., 1 Okla. Trib. 278 (Musc.(Cr.) D.Ct. 1989).

Contract may provide for construction in ac-cordance with tribal law. National Council v.Preferred Mgmt. Corp., 1 Okla. Trib. 278 (Musco-gee (Cr.) D.Ct. 1989)

Muscogee (Creek) Nation has power to exer-cise civil authority over conduct of non-Indiansespecially when their conduct has direct impacton political integrity, economic security, orhealth and welfare of Tribe. Muscogee (Creek)Nation v. Indian Country, U. & A., Inc., 1 Okla.Trib. 267 (Muscogee (Cr.) D.Ct. 1989).

District Court of Muscogee (Creek) Nationhas power to interpret gaming contract betweenNation and gaming contractor, to determinewhether breach thereof has occurred, and toissue preliminary injunction where warrantedby legal circumstances. Muscogee (Creek) Nationv. Indian Country, USA., Inc., 1 Okla. Trib. 267(Musc. (Cr.) D.Ct. 1989).

Request for re-certification of number of dis-trict citizens for purposes of determining num-ber of seats to be filled on Muscogee (Creek)National Council presents a justiciable contro-versy subject to jurisdiction of District Court ofthe Muscogee (Creek) Nation. Thomas v. Elec-tion Board, 1 Okla. Trib. 124 (Musc. (Cr.) D.Ct.1987).




It[sovereignty] centers on the land held by thetribe and on tribal members within the reserva-tion. Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)




[w]hen the tribe or tribal members convey aparcel of fee land ‘‘to non-Indians, [the tribe]loses any former right of absolute and exclusiveuse and occupation of the conveyed lands.’’(quoting South Dakota v. Bourland, 508 U.S.679 (1993)) (emphasis in original) Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)


We have recognized two exceptions to thisprinciple, circumstances in which tribes may

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exercise ‘‘civil jurisdiction over non-Indians ontheir reservations, even on non-Indian feelands.’’ First, ‘‘[a] tribe may regulate, throughtaxation, licensing, or other means, the activi-ties of nonmembers who enter consensual rela-tionships with the tribe or its members, throughcommercial dealing, contracts, leases, or otherarrangements.’’ Second, a tribe may exercise‘‘civil authority over the conduct of non-Indianson fee lands within the reservation when thatconduct threatens or has some direct effect onthe political integrity, the economic security, orthe health or welfare of the tribe.’’ (quotingMontana v. United States, 450 U.S. 544 (1981))(internal cites omitted) Plains Commercial Bankv. Long Family Land & Cattle Co. et al., 128S.Ct. 2709 (2008)

By their terms, the exceptions [announced inMontana v. United States, 450 U.S. 544 (1981)]concern regulation of ‘‘the activities of non-members’’ or ‘‘the conduct of non-Indians onfee land.’’ (emphasis in original) Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)




Montana [Montana v. United States, 450 U.S.544 (1981)] does not permit Indian tribes toregulate the sale of non-Indian fee land. Mon-tana and its progeny permit tribal regulation ofnonmember conduct inside the reservation thatimplicates the tribe’s sovereign interests. Mon-tana expressly limits its first exception to the‘‘activities of nonmembers,’’ allowing these tobe regulated to the extent necessary ‘‘to protecttribal self-government [and] to control internalrelations.’’ Plains Commercial Bank v. LongFamily Land & Cattle Co. et al., 128 S.Ct. 2709(2008)

We have upheld as within the tribe’s sover-eign authority the imposition of a severance taxon natural resources removed by nonmembersfrom tribal land. Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130 (1982). We have approvedtribal taxes imposed on leasehold interests heldin tribal lands, as well as sales taxes imposed onnonmember businesses within the reservation.Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195(1985). We have similarly approved licensingrequirements for hunting and fishing on triballand. See New Mexico v. Mescalero ApacheTribe, 462 U.S. 324 (1983)(internal cites omit-ted) Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)

The logic of Montana [Montana v. UnitedStates, 450 U.S. 544 (1981)] is that certain activ-ities on non-Indian fee land (say, a businessenterprise employing tribal members) or certainuses (say, commercial development) may in-trude on the internal relations of the tribe orthreaten tribal self-rule. To the extent they do,such activities or land uses may be regulated.Plains Commercial Bank v. Long Family Land &Cattle Co. et al., 128 S.Ct. 2709 (2008)



The power to tax certain nonmember activitycan also be justified as ‘‘a necessary instrumentof self-government and territorial management’’insofar as taxation ‘‘enables a tribal governmentto raise revenues for its essential services,’’ topay its employees, to provide police protection,and in general to carry out the functions thatkeep peace and order (quoting Merrion v. Jicar-illa Apache Tribe, 455 U.S. 130 (1982)) (internalquotes omitted) Plains Commercial Bank v. LongFamily Land & Cattle Co. et al., 128 S.Ct. 2709(2008)


Any direct harm to its political integrity thatthe tribe sustains as a result of fee land sale issustained at the point the land passes from

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Indian to non-Indian hands. It is at that pointthe tribe and its members lose the ability to usethe land for their purposes. Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)






[n]onmembers have no part in tribal govern-ment—they have no say in the laws and regula-tions that govern tribal territory. Consequently,those laws and regulations may be fairly im-posed on nonmembers only if the nonmemberhas consented, either expressly or by his ac-tions. Even then, the regulation must stem fromthe tribe’s inherent sovereign authority to setconditions on entry, preserve tribal self-govern-ment, or control internal relations. Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)

[w]e said it ‘‘defies common sense to sup-pose’’ that Congress meant to subject non-Indi-ans to tribal jurisdiction simply by virtue of thenonmember’s purchase of land in fee simple. IfCongress did not anticipate tribal jurisdictionwould run with the land, we see no reason why

a nonmember would think so either. (internalcite omitted, quoting from Montana v. UnitedStates, 450 U.S. 544 (1981)) Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)






[u]nder our Indian tax immunity cases, the‘‘who’’ and the ‘‘where’’ of the challenged taxhave significant consequences. We have deter-mined that ‘‘[t]he initial and frequently disposi-tive question in Indian tax cases TTT is whobears the legal incidence of [the] tax,’’ and thatthe States are categorically barred from placingthe legal incidence of an excise tax ‘‘on a tribeor on tribal members for sales made inside Indi-an country’’ without congressional authoriza-tion (emphasis in original)(quoting OklahomaTax Comm’n v. Chickasaw Nation, 515 U.S. 450(1995)) Wagnon v. Prairie Band Potawatomi Na-tion, 546 U.S. 95 (2005)

Limiting the interest-balancing test exclusive-ly to on-reservation transactions between a non-tribal entity and a tribe or tribal member isconsistent with our unique Indian tax immunityjurisprudence. We have explained that this ju-risprudence relies ‘‘heavily on the doctrine of

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tribal sovereignty TTT which historically gavestate law ‘no role to play’ within a tribe’s terri-torial boundaries.’’ (emphasis in original, quot-ing Oklahoma Tax Commission v. Sac and FoxNation, 508 U.S. 114 (1993)) Wagnon v. PrairieBand Potawatomi Nation, 546 U.S. 95 (2005)






We assume, TTT that Lara’s double jeopardyclaim turns on the answer to the ‘‘dual sover-eignty’’ question. What is ‘‘the source of [the]power to punish’’ nonmember Indian offenders,

‘‘inherent tribal sovereignty’’ or delegated feder-al authority? [quoting United States v. Wheeler,435 U.S. 313 (1978)]. We also believe that Con-gress intended the former answer. The statute[Act of Oct. 28, 1991, 105 Stat. 646] says that it‘‘recognize[s] and affirm[s]’’ in each tribe the‘‘inherent’’ tribal power (not delegated federalpower) to prosecute nonmember Indians formisdemeanors. (emphasis added in original, in-ternal cites omitted) U.S. v. Lara, 541 U.S. 193(2004)






Congress has also granted tribes greater au-tonomy in their inherent law enforcement au-thority (in respect to tribal members) by in-creasing the maximum criminal penalties tribalcourts may impose. § 4217, 100 Stat. 3207–146,codified at 25 U.S.C. § 1302(7) (raising themaximum from ‘‘a term of six months and afine of $500’’ to ‘‘a term of one year and a fineof $5,000’’). U.S. v. Lara, 541 U.S. 193 (2004)


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Indian tribes’ regulatory authority over non-members is governed by the principles set forth

in Montana v. United States, 450 U.S. 544(1981) Nevada v. Hicks, 533 U.S. 353 (2001)







Our cases make clear that the Indians’ rightto make their own laws and be governed bythem does not exclude all state regulatory au-thority on the reservation. State sovereigntydoes not end at a reservation’s border. Thoughtribes are often referred to as ‘‘sovereign’’ enti-ties, it was ‘‘long ago’’ that ‘‘the Court departedfrom Chief Justice Marshall’s view that ‘thelaws of [a State] can have no force’ withinreservation boundaries.’’ (quoting both Worces-ter v. Georgia, 6 Pet. 515, 561 (1832), WhiteMountain Apache Tribe v. Bracker, 448 U.S. 136,141 (1980)) Nevada v. Hicks, 533 U.S. 353(2001)


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When, however, state interests outside thereservation are implicated, States may regulatethe activities even of tribe members on triballand. Nevada v. Hicks, 533 U.S. 353 (2001)

It is also well established in our precedentthat States have criminal jurisdiction over reser-vation Indians for crimes committed (as was thealleged poaching in this case) off the reserva-tion. (quoting Mescalero Apache Tribe v. Jones,411 U.S. 145 (1973)) Nevada v. Hicks, 533 U.S.353 (2001)


The State’s interest in execution of process isconsiderable, and even when it relates to Indi-an-fee lands it no more impairs the tribe’s self-government than federal enforcement of federallaw impairs state government. Nevada v. Hicks,533 U.S. 353 (2001)



25 U.S.C. § 2804 which permits federal-stateagreements enabling state law-enforcementagents to act on reservations, applies only todeputizing them for the enforcement of federalor tribal criminal law. Nothing in the federalstatutory scheme prescribes, or even remotelysuggests, that state officers cannot enter a reser-vation (including Indian-fee land) to investigateor prosecute violations of state law occurringoff the reservation. Nevada v. Hicks, 533 U.S.353 (2001)


Respondents’ contention that tribal courts arecourts of ‘‘general jurisdiction’’ is also quitewrong. A state court’s jurisdiction is general, inthat it ‘‘lays hold of all subjects of litigationbetween parties within its jurisdiction, though

the causes of dispute are relative to the laws ofthe most distant part of the globe.’’ [quotingfrom Tafflin v. Levitt, 493 U.S. 455 (1990)] Trib-al courts, it should be clear, cannot be courts ofgeneral jurisdiction in this sense, for a tribe’sinherent adjudicative jurisdiction over nonmem-bers is at most only as broad as its legislativejurisdiction.(internal cites omitted) Nevada v.Hicks, 533 U.S. 353 (2001)







An Indian tribe’s sovereign power to tax–whatever its derivation–reaches no further thantribal land. Atkinson Trading Company v. Shir-ley, Jr. et al.., 532 U.S. 645 (2001)


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Respect for tribal self government made itappropriate ‘‘to give the tribal court a full op-portunity to determine its own jurisdiction.’’(quoting Iowa Mutual. Insurance. Co. v. La-Plante, 480 U.S. 9 (1987)) Strate v. A–1 Contrac-tors, 520 U.S. 438 (1997)

Tribal authority over the activities of non In-dians on reservation lands is an important partof tribal sovereignty. Civil jurisdiction over suchactivities presumptively lies in the tribal courtsunless affirmatively limited by a specific treatyprovision or federal statuteTTTT ‘‘In the absenceof any indication that Congress intended thediversity statute to limit the jurisdiction of thetribal courts, we decline petitioner’s invitationto hold that tribal sovereignty can be impairedin this fashion.’’ (quoting Iowa Mutual. Insur-ance. Co. v. LaPlante, 480 U.S. 9 (1987)) Stratev. A–1 Contractors, 520 U.S. 438 (1997)




Subject to controlling provisions in treatiesand statutes, and the two exceptions identified

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in Montana,[ Montana v. United States, 450 U.S.544 (1981)] the civil authority of Indian tribesand their courts with respect to non Indian feelands generally ‘‘do[es] not extend to the activi-ties of nonmembers of the tribe.’’ Strate v. A–1Contractors, 520 U.S. 438 (1997)







This court has applied the Supreme Court’sstraightforward test to uphold Indian tribes’ im-

munity from suit. Miner Electric and RussellMiner v. Muscogee (Creek) Nation, 505 F.3d1007 (10th Cir. 2007)


We noted that Indian tribes’ ‘‘limited sover-eign immunity from suit is well-established’’and that the tribe in that case ‘‘ha[d] not chosento waive that immunity.’’ We then proceeded toconsider whether the tribe’s sovereign immunityextended to the tribal-officer defendants, hold-ing: When the complaint alleges that the namedofficer defendants have acted outside theamount of authority that the sovereign is capa-ble of bestowing, an exception to the doctrine ofsovereign immunity is invoked. If the sovereigndid not have the power to make a law, then theofficial by necessity acted outside the scope ofhis authority in enforcing it, making him liableto suit. Any other rule would mean that a claimof sovereign immunity would protect a sover-eign in the exercise of power it does not possess.[internal cites omitted by author. Quoting fromTenneco Oil Co. v. Sac & Fox Tribe of Indians ofOklahoma, 725 F.2d 572 (10th Cir. 1984)] MinerElectric and Russell Miner


This court later expressly limited the holdingin Dry Creek [non-Indian denied any remedy ina tribal court forum, Dry Creek Lodge, Inc. v.Arapahoe & Shoshone Tribes, 623 F.2d 682(10th Cir. 1980)] to apply only where the tribalremedy is ‘‘shown to be nonexistent by an actu-al attempt’’ and not merely by an allegation thatresort to a tribal remedy would be futile. [quot-ing White v. Pueblo of San Juan, 728 F.2d 1307(10th Cir. 1984)] Miner Electric and RussellMiner v. Muscogee (Creek) Nation, 505 F.3d1007 (10th Cir. 2007)

The Miner parties clearly fail to come withinthe narrow Dry Creek [Dry Creek Lodge, Inc. v.Arapahoe & Shoshone Tribes, 623 F.2d 682(10th Cir. 1980)] exception to tribal sovereignimmunity. Considering whether they could havebrought this action in the Tribal Court ratherthan the district court, they hypothesize that theNation would have claimed immunity from suitin that forum as well. But they must show an

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actual attempt; their assumption of futility ofthe tribal-court remedy is not enough. MinerElectric and Russell Miner v. Muscogee (Creek)Nation, 505 F.3d 1007 (10th Cir. 2007)





Dry Creek [Dry Creek Lodge, Inc. v. Arapahoe &Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980)]has come to stand for the proposition that feder-al courts have jurisdiction to hear a suit againstan Indian tribe under 25 U.S.C. § 1302, not-withstanding Santa Clara Pueblo, [Santa ClaraPueblo v. Martinez, 436 U.S. 49 (1978)]whenthree circumstances are present: (1) the disputeinvolves a non-Indian; (2) the dispute does notinvolve internal tribal affairs; and (3) there is notribal forum to hear the dispute. Our jurispru-dence in this field is circumspect, and we haveemphasized the need to construe the Dry Creekexception narrowly in order to prevent a con-flict with Santa Clara.(internal cites omitted)Walton v. Pueblo et al., 443 F.3d 1274 (10th Cir.2006)






This Court acknowledged Oklahoma did nottake steps to assume jurisdiction under the pre-vious PL–280 in Lewis v. Sac and Fox Tribe ofOklahoma Housing Authority. We held that‘‘[b]ecause Oklahoma did not take the appropri-ate steps to take jurisdiction under PL–280, theproper inquiry to be made in this case mustfocus upon the congressional policy of fosteringtribal autonomy in the light of pertinent U.S.

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Supreme Court jurisprudence.’’ Cossey v. Chero-kee Nation, 212 P.3d 447 (Okla. 2009)




Thus, a tribal court is not a court of generaljurisdiction. Its jurisdiction could be asserted inmatters involving non-Indians only when theiractivities on Indian lands are activities that maybe regulated by the Tribe. (citing Nevada v.Hicks, 533 U.S. 343 (2001)) Cossey v. CherokeeNation, 212 P.3d 447 (Okla. 2009)


4. ——Federal law, jurisdictionThe doctrine of sovereign immunity, a condi-

tion precedent to filing suit against the GOAB,is often accompanied by the doctrine of quali-fied immunity for government employees actingwithin the scope of their employment. Qualifiedimmunity is not, however, absolute. Molle andChalakee v. The Gaming Operations AuthorityBoard, et al., SC 06–05 (Muscogee (Creek) 2008)

The Court decided it had judicial power torender its decision in that case, not based on aspecific grant of power, but on the impliedpowers derived from examination of the UnitedStates Constitution. See Marbury v. Madison, 1Cranch, 137. The Court then decided, while notfollowing United States law, the United StateSupreme Court’s decision was persuasive inas-

much as it was the opinion of the court that theMuscogee Nation Constitution was modeled af-ter the U.S. Constitution as to the separation ofpowers doctrine. Ellis v. Muscogee (Creek) Na-tional Council, SC 06–07 (Muscogee (Creek)2007)

Federal regulations of the National IndianGaming Commission mandate the indepen-dence of the Office of Public Gaming. We hold,therefore, that the Executive Branch and theNational Council must abide by the federal reg-ulations to keep the independence of the Officeof Public Gaming from both executive and legis-lative influences. Ellis v. Muscogee (Creek) Na-tion National Council, SC 05–03/05 (Muscogee(Creek) 2006)





In that case [Indian Country, USA v. State ofOklahoma, 829 f.2d 967 (10th Cir. 1987)] theTenth Circuit noted the Mackey Site is part ofthe original treaty land still held by the CreekNation. Muscogee (Creek) Nation v. One Thou-sand Four Hundred Sixty Three and 14/100;Methamphetamine; and a 2004 General Motors

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Hummer H2, SC 05–01 (Muscogee (Creek)2005)








The state also lacks jurisdiction [for] the crim-inal conduct inside the Nation’s Indian Coun-

try. Because the Nation does not have a cross-deputization agreement with Tulsa County,Oklahoma, the Nation would have no means ofaddressing Appellant’s conduct through the as-sistance of another jurisdiction. Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)


Pursuant to NCA 89–21$103, the Court shallfirst apply tribal ordinances in any legal resolu-tion. If there is no applicable tribal ordinance,then the court may process to apply federal law.If no tribal or federal laws are applicable, thenthe Court shall apply Oklahoma law. Brown andWilliamson Tobacco Corp. v. District Court, 5Okla. Trib. 447 (Muscogee (Creek) 1998).

The Court may at various times, adopt certainfederal or state laws or legal concepts into Mus-cogee Nation case law. When this occurs, wemust note that the Muscogee Nation SupremeCourt is only using federal or state principlesfor the purposes of guidance and is merelyincorporating those laws into our common law.Brown and Williamson Tobacco Corp. v. DistrictCourt, 5 Okla. Trib. 447 (Muscogee (Creek)1998).





Whether the Court chooses to adopt legalstandards from other jurisdictions into tribal

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law and how those standards are interpreted issolely within the realm of the Muscogee (Creek)Nations Supreme Court’s discretion. Brown andWilliamson Tobacco Corp. v. District Court, 5Okla. Trib. 447 (Muscogee (Creek) 1998).


Tribal courts do not necessarily have jurisdic-tion over any dispute between tribal membersnon-Indians arising out of contracts; rather,tribal courts’ jurisdiction in such cases is limit-ed by notions of ‘‘minimum contracts’’ and ‘‘tra-ditional notions of fair play and substantial jus-tice.’’ Preferred Mgmt. Corp. v. National Council,2 Okla. Trib. 37 (Muscogee (Creek) 1990).






Canons of Treaty construction developed bythe United States Supreme Court resolve ambi-guities in favor of Indians and that language ofan Indian Treaty is to be understood today asthat same language was understood by tribalrepresentatives when the treaty was negotiated.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).





Tribe may retain power to regulate conduct ofnon-Indians on fee lands when that conductthreatens or has direct effect on political integ-rity, economic security, or health or welfare oftribe. National Council v. Preferred Mgmt. Corp.,1 Okla. Trib. 278 (Muscogee (Cr.) D.Ct. 1989).

Tribal authority over non-Indians on fee landsextends to those who enter into consensual rela-tionships with tribe. National Council v. Pre-ferred Mgmt. Corp., 1 Okla. Trib. 278 (Muscogee(Cr.) D.Ct. 1989).

Muscogee (Creek) Nation has power to exer-cise civil authority over conduct of non-Indians,especially when their conduct has direct impacton political integrity, economic security, orhealth or welfare of tribe. Muscogee (Creek) Na-tion v. Indian Country, USA., Inc., 1 Okla. Trib.267 (Muscogee (Cr.) D.Ct. 1989).


For nearly two centuries now, we have recog-nized Indian tribes as ‘‘distinct, independentpolitical communities,’’ Worcester v. Georgia, 6Pet. 515 (1832), qualified to exercise many ofthe powers and prerogatives of self-govern-ment.(internal cite omitted) Plains Commercial

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Bank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)














We recognize that in 1871 Congress endedthe practice of entering into treaties with theIndian tribes. 25 U.S.C. § 71. But the statutesaved existing treaties from being ‘‘invalidatedor impaired,’’ and this Court has explicitly stat-ed that the statute ‘‘in no way affected Con-gress’ plenary powers to legislate on problemsof Indians,’’(quoting Antoine v. Washington, 420

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U.S. 194 (1975)) U.S. v. Lara, 541 U.S. 193(2004)








When Congress enacts a tax exemption, itordinarily does so explicitly. Chickasaw Nationv. United States, 534 U.S. 84 (2001)







25 U.S.C. § 2804 which permits federal-stateagreements enabling state law-enforcementagents to act on reservations, applies only todeputizing them for the enforcement of federalor tribal criminal law. Nothing in the federalstatutory scheme prescribes, or even remotelysuggests, that state officers cannot enter a reser-vation (including Indian-fee land) to investigateor prosecute violations of state law occurringoff the reservation. Nevada v. Hicks, 533 U.S.353 (2001)



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Congress has authorized the Commissioner ofIndian Affairs ‘‘to appoint traders to the Indiantribes and to make such rules and regulations ashe may deem just and proper specifying thekind and quantity of goods and the prices atwhich such goods shall be sold to the Indians.’’[25 U.S.C. § 261] Atkinson Trading Company v.Shirley, Jr. et al., 532 U.S. 645 (2001)







We disagree that federal-question jurisdictionnegates an Indian tribe’s immunity from suit.Indeed, nothing in § 1331 unequivocally abro-gates tribal sovereign immunity. In the contextof the United States’ sovereign immunity, wehave held that ‘‘[w]hile 28 U.S.C. § 1331 grantsthe court jurisdiction over all civil actions aris-ing under the Constitution, laws or treaties ofthe United States, it does not independentlywaive the Government’s sovereign immunity;§ 1331 will only confer subject matter jurisdic-tion where some other statute provides such awaiver.’’ [quoting from High Country CitizensAlliance v. Clarke, 454 F.3d 1177, 1181 (10thCir. 2006)] Miner Electric and Russell Miner v.Muscogee (Creek) Nation, 505 F.3d 1007 (10thCir. 2007)

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(quotation omitted), cert. denied, 127 S.Ct.2134 (2007)(citations omitted in original). MinerElectric and Russell Miner v. Muscogee (Creek)Nation, 505 F.3d 1007 (10th Cir. 2007)

Tribal sovereign immunity is deemed to becoextensive with the sovereign immunity of theUnited States. [quoting Ramey Constr. Co. v.Apache Tribe of Mescalero Reservation, 673 F.2d315, 319–20 (10th Cir. 1982)] Miner Electric andRussell Miner v. Muscogee (Creek) Nation, 505F.3d 1007 (10th Cir. 2007)



We also concluded that, in the suit against thetribal officers, the extent of the tribe’s sover-eignty to enact the challenged ordinances raiseda federal issue sufficient for federal-questionjurisdiction in the district court. [quoting fromTenneco Oil Co. v. Sac & Fox Tribe of Indians ofOklahoma, 725 F.2d 572 (10th Cir. 1984)] MinerElectric and Russell Miner v. Muscogee (Creek)Nation, 505 F.3d 1007 (10th Cir. 2007)

Like this case, Tenneco involved two differentaspects of an Indian tribe’s ‘‘sovereignty’’: itsimmunity from suit and the extent of its powerto enact and enforce laws affecting non-Indians.But it does not stand for the proposition, as theMiner parties suggest, that an Indian tribe can-not invoke its sovereign immunity from suit inan action that challenges the limits of the tribe’sauthority over non-Indians. On the contrary, weheld in Tenneco that the tribe was immune fromsuit. [quoting from Tenneco Oil Co. v. Sac & FoxTribe of Indians of Oklahoma, 725 F.2d 572(10th Cir. 1984)] Miner Electric and RussellMiner v. Muscogee (Creek) Nation, 505 F.3d1007 (10th Cir. 2007)



The Dry Creek rule has ‘‘minimal precedentialvalue’’; in fact, this court has never held it to beapplicable other than in the Dry Creek [DryCreek Lodge, Inc. v. Arapahoe & ShoshoneTribes, 623 F.2d 682 (10th Cir. 1980)] decisionitself. Miner Electric and Russell Miner v. Mus-cogee (Creek) Nation, 505 F.3d 1007 (10th Cir.2007)



In Santa Clara Pueblo, [Santa Clara Pueblo v.Martinez, 436 U.S. 49 (1978)] the SupremeCourt held that the ICRA [Indian Civil RightsAct, 25 U.S.C. §§ 1301–1303] does not author-ize the maintenance of suits against a tribe nordoes it constitute a waiver of sovereignty. Fur-ther, the ICRA does not create a private causeof action against a tribal official. The only ex-ception is that federal courts do have jurisdic-tion under the ICRA over habeas proceedings.

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(internal cites omitted) Walton v. Pueblo et al.,443 F.3d 1274 (10th Cir. 2006)

Dry Creek [Dry Creek Lodge, Inc. v. Arapahoe &Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980)]has come to stand for the proposition that feder-al courts have jurisdiction to hear a suit againstan Indian tribe under 25 U.S.C. § 1302, not-withstanding Santa Clara Pueblo, [Santa ClaraPueblo v. Martinez, 436 U.S. 49 (1978)]whenthree circumstances are present: (1) the disputeinvolves a non-Indian; (2) the dispute does notinvolve internal tribal affairs; and (3) there is notribal forum to hear the dispute. Our jurispru-dence in this field is circumspect, and we haveemphasized the need to construe the Dry Creekexception narrowly in order to prevent a con-flict with Santa Clara.(internal cites omitted)Walton v. Pueblo et al., 443 F.3d 1274 (10th Cir.2006)




[t]he clean-hands doctrine ‘‘applie[s] not onlyto the participants in the transaction, but totheir heirs, and to all parties claiming under orthrough either of them.’’ [quoting Rust v. Gilles-pie, 90 Okla. 59 (1923)]. Although there is anexception to this rule for heirs who did not

participate in the fraudulent conduct and canprove their claims without establishing the un-derlying fraud, [quoting Becker v. State, 312P.2d 935 (Okla.1957)], that exception does notapply. Here, proof of the fraudulent scheme isessential to Plaintiff’s claims (internal citesomitted) Estate of Bruner v. Bruner, 338 F.3d1172 (10th Cir. 2003)

This Court acknowledged Oklahoma did nottake steps to assume jurisdiction under the pre-vious PL–280 in Lewis v. Sac and Fox Tribe ofOklahoma Housing Authority. We held that‘‘[b]ecause Oklahoma did not take the appropri-ate steps to take jurisdiction under PL–280, theproper inquiry to be made in this case mustfocus upon the congressional policy of fosteringtribal autonomy in the light of pertinent U.S.Supreme Court jurisprudence.’’ Cossey v. Chero-kee Nation, 212 P.3d 447 (Okla. 2009)



Tribal criminal jurisdiction may extend toboth member and non-member Indians. 25U.S.C. § 1301(2); United States v. Lara, 541 U.S.193 (2004). It does not extend to non-Indians.Oliphant v. Suquamish Indian Tribe, 435 U.S.191 (1978). That said, tribal officers do have theauthority to investigate violations of law on trib-al land, and detain persons, including non-Indi-

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ans, suspected of violating the law. Duro v.Reina, 495 U.S. 676 (1990) (internal cites omit-ted) United States v. Green, 140 Fed.Appx. 798(10th Cir. 2005)


An officer may seize evidence of a crime if itis in plain view, its incriminating character isimmediately apparent, and the officer has alawful right of access to the item. Horton v.California, 496 U.S. 128 (1990) United States v.Green, 140 Fed.Appx. 798 (10th Cir. 2005)

We have suggested that incriminating evi-dence that may be seen through the window ofa vehicle may be in plain view. United States v.Sparks, 291 F.3d 683 (10th Cir. 2002). This viewmay be assisted by a flashlight without anyinfringement of Fourth Amendment rights. Tex-as v. Brown, 460 U.S. 730 (1983) (internal citesomitted) United States v. Green, 140 Fed.Appx.798 (10th Cir. 2005)

5. ——Treaty interpretation, jurisdictionIn that case [Indian Country, USA v. State of

Oklahoma, 829 f.2d 967 (10th Cir. 1987)] theTenth Circuit noted the Mackey Site is part ofthe original treaty land still held by the CreekNation. Muscogee (Creek) Nation v. One Thou-sand Four Hundred Sixty Three and 14/100;Methamphetamine; and a 2004 General MotorsHummer H2, SC 05–01 (Muscogee (Creek)2005)




Absent express Congressional enactment tothe contrary, the jurisdiction power of the Mus-

cogee (Creek) Nation remains unscathed. Mus-cogee (Creek) Nation v. American Tobacco Co., 5Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Canons of Treaty construction developed bythe United States Supreme Court resolve ambi-guities in favor of Indians and that language ofan Indian Treaty is to be understood today asthat same language was understood by tribalrepresentatives when the treaty was negotiated.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).


No indication in the 1867 Treaty that the mengave up any right to full adjudicatory authority.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).





6. Interpretation of constitution, ordinancesor resolutions

The plain language of Section 8–202 [ElectionCode, Title 19, § 8–202] clearly notified thePetitioner that his money would not be re-

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turned. It cannot get any plainer. Tiger v. Mus-cogee (Creek) Nation Election Board, et al. SC07–04 (Muscogee (Creek) 2008)

Where a statute states in plain language on aparticular matter, the Court will not place adifferent meaning on the words. Tiger v. Musco-gee (Creek) Nation Election Board, et al. SC07–04 (Muscogee (Creek) 2008)

While Section 8–208 [Election Code, Title 19,§ 8–208] erroneously refers to the filing fee as adeposit, this section merely outlines the pur-poses for which the filing fee can be used. Themisnomer does not authorize a refund of thefiling fee. Section 8–202 itself reefers to the feeas a non refundable filing fee. It is neither adeposit nor escrowed funds as Petitioner sug-gests. Tiger v. Muscogee (Creek) Nation ElectionBoard, et al. SC 07–04 (Muscogee (Creek) 2008)

Section 8–202 [Election Code, Title 19,§ 8–202] describes the step which must be tak-en to ask for a recount. The petition was simplya request to start the recount process not agrant of a substantive right. Tiger v. Muscogee(Creek) Nation Election Board, et al. SC 07–04(Muscogee (Creek) 2008)

No provision of the Election Code provides asubstantive right to a recount. Tiger v. Muscogee(Creek) Nation Election Board, et al. SC 07–04(Muscogee (Creek) 2008)

Section 8–202 [Election Code, Title 1,9§ 8–202] refers to Section 8–203 [ElectionCode, Title 19 § 8–203] where in notice is clear-ly given of the procedures to be followed andthe circumstances which could prohibit a re-count. Tiger v. Muscogee (Creek) Nation ElectionBoard, et al. SC 07–04 (Muscogee (Creek) 2008)

The recent decision by this Court in Glass v.Muscogee (Creek) Nation Tulsa Casino, et al.decided in April 2006 (affirming dismissal be-cause no waiver from sovereign immunity wasobtained by Plaintiff) is controlling as to theGOAB [Gaming Operations Authority Board].Molle and Chalakee v. The Gaming OperationsAuthority Board, et al., SC 06–05 (Muscogee(Creek) 2008)

The Court further holds that the receipt of awaiver from sovereign immunity must be ob-tained from the National Council as a conditionprecedent to filing suit against the GOAB [Gam-ing Operations Authority Board]. Molle andChalakee v. The Gaming Operations AuthorityBoard, et al., SC 06–05 (Muscogee (Creek) 2008)

The District Court properly applied thisCourt’s decision in Glass,[Glass v. Muscogee(Creek) Nation Tulsa Casino, et al., SC 05–04(2006)] and therefore, the dismissal of Respon-dent/Defendant GOAB as being protected fromcivil suit by sovereign immunity was also prop-er. Molle and Chalakee v. The Gaming Opera-tions Authority Board, et al., SC 06–05 (Musco-gee (Creek) 2008)

The qualified immunity test requires a two-part analysis: ‘‘(1) Was the law governing theofficial’s conduct clearly established? (2) Under

the law, could a reasonable officer have be-lieved the conduct was lawful?’’ [citing Act-Up!/Portland v. Bagley, 988 F.2d 868, 871 (9thCir. 1993); Tribble v. Gardner, 860 F.2d 321, 324(9th Cir. 1988), cert. denied, 490 U.S. 1075(1989).] This Court is persuaded by and herebyadopts the forgoing reasoning regarding the ap-plication of the doctrine of qualified immunity.Molle and Chalakee v. The Gaming OperationsAuthority Board, et al., SC 06–05 (Muscogee(Creek) 2008)

On remand, the District Court should applythe two-part test discussed above [(1) Was thelaw governing the official’s conduct clearly es-tablished? (2) Under the law, could a reasonableofficer have believed the conduct was lawful?]to determine whether the named individual de-fendants may be immune from suit under thedoctrine of qualified immunity. Molle and Cha-lakee v. The Gaming Operations Authority Board,et al., SC 06–05 (Muscogee (Creek) 2008)





[T]his Court reminds the parties that the Indi-an Civil Rights Act states that: ‘‘no tribe inexercising its powers of self-governmentSHALL: deny to any persons within its jurisdic-tion the Equal Protection of the laws.’’ (Empha-sis added). This mandate in the Indian CivilRights Act (‘‘ICRA’’) requires equal voting rightsto all eligible tribal voters. The Equal Protectionclause of the ICRA thus requires a ‘‘one manone vote’’ rule to be obeyed in this tribe’s elec-toral process. (emphasis and bold in original)Harjo v. Muscogee (Creek) Nation ElectionBoard, SC 07–50 (Muscogee (Creek) 2007)

The Election Board of the Muscogee (Creek)Nation is constitutionally responsible for elec-tions in accordance with the Muscogee (Creek)Nation Constitution Article 4 Section 1. Harjo v.Muscogee (Creek) Nation Election Board, SC07–50 (Muscogee (Creek) 2007)

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This Court finds that Election Board shouldhave promulgated rules and regulations for re-apportionment after the 1995 amendments tothe Muscogee (Creek) Nation Constitution cap-ping the number of National Council seats avail-able to twenty-six (26). Harjo v. Muscogee(Creek) Nation Election Board, SC 07–50 (Mus-cogee (Creek) 2007)

The Court finds the original formula of one(1) representative per district plus one (1) repre-sentative for each 1500 citizens must yield tothe Constitutional Amendment that set the max-imum number of seats at 26. Harjo v. Muscogee(Creek) Nation Election Board, SC 07–50 (Mus-cogee (Creek) 2007)

The Court hereby ORDERS George Tiger, inhis capacity as Speaker of the National Council,to return the below described official Courtrecord to the office of the Supreme Court nolater that 10:00 a.m. on August 3, 2007, saidrecord being described as: The full and com-plete original audio recording which constitutesa portion of the official transcript of the Su-preme Court hearing which was held on July18, 2007 in the above captioned matter. Failureto fully and timely comply with this Order shallbe deemed an act of direct contempt of thisCourt. Ellis v. Muscogee (Creek) Nation NationalCouncil, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The funding level requested in a budget sub-mitted by the Chief to the National Council forits approval is expected to be sufficient to coverall positions authorized by law and such otherpositions which the Principal Chief is givendiscretion to employ, thereby enabling the Chiefto perform his constitutional duty. Ellis v. Mus-cogee (Creek) Nation National Council, ‘‘EllisII’’, SC 06–07 (Muscogee (Creek) 2007)

This Court agrees that, in general and withconstitutional limitations, the National Councilhas legislative oversight on how money is spentand is entitled to appropriate what funds itdecides are proper. This oversight power, how-ever, is subject to the National Council’s consti-tutional responsibility to fund positions author-ized by law such as those discussed infra and inour previous Order concerning executivebranch employees, and those areas that help thePrincipal Chief of this Nation perform his con-stitutional duties as the Chief. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

Though the National Council has authority toapprove or disapprove the Budget submitted bythe Principal Chief, the National Council doesnot have line-item veto power over the Budget.The National Council cannot pick and chooseareas of the Budget that it specifically does notlike or does not want to fund. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

Preparation of the Budget is an executivefunction specifically committed by the Constitu-tion to the Executive Office. It is the constitu-

tional responsibility of the Executive Office todraft and prepare the Budget in the best inter-ests of the Nation. Ellis v. Muscogee (Creek)Nation National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

The key point that seems to be lost on theNational Council, however, is that the PrincipalChief initiates the Budget process. This is incontrast to the powers of the National Councilunder the 1867 Constitution where the NationalCouncil made the initial decisions. Ellis v. Mus-cogee (Creek) Nation National Council, ‘‘EllisII’’, SC 06–07 (Muscogee (Creek) 2007)

When a governmental entity is responsible forinitiating, editing, processing, changing and re-viewing a process assigned to it under the Con-stitution, it is the Court’s opinion this entity isthe ultimate authority for the process. Ellis v.Muscogee (Creek) Nation National Council, ‘‘El-lis II’’, SC 06–07 (Muscogee (Creek) 2007)

It is our opinion that the Executive Branch ofthe Nation is the ultimate responsible authorityfor the Budget. Ellis v. Muscogee (Creek) NationNational Council, ‘‘Ellis II’’, SC 06–07 (Musco-gee (Creek) 2007)

The National Council cannot manipulatefunds by passing National Council Resolutionsthat the Chief does not see nor have the oppor-tunity to veto. Again, in doing so, these NationalCouncil Resolutions affect the Treasury of theMuscogee (Creek) Nation and there must be acheck on this seemingly unbridled power of theNational Council. Ellis v. Muscogee (Creek) Na-tion National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

It seems abundantly clear to this Court thatmeetings between the Principal Chief and theNational Council must continue until the twobranches have worked out a mutually agreedupon Budget for the Nation for the year. ThisCourt will not tolerate the negotiations beingstone-walled by one branch of government formonths at a time, as that branch would beaffecting the functions and responsibilities ofthe other branch. Ellis v. Muscogee (Creek) Na-tion National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)


The type of infringement repeatedly exhibitedby the National Council simply cannot continue.It is manipulative, disruptive, and in contra-diction to the established law of the Muscogee(Creek) Nation. Ellis v. Muscogee (Creek) NationNational Council, ‘‘Ellis II’’, SC 06–07 (Musco-gee (Creek) 2007)

Plaintiffs request for a citation of civil con-tempt presents a case of first impression for thisCourt. We find that in any instance of blatant

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and obvious disregard for the orders of theSupreme Court or the District Court, the Courtsof the Muscogee (Creek) Nation have inherentpower to enforce compliance with such lawfulorders through contempt proceedings. (MCNCode. Title 27. App.2, Rule 20 (C)(5) and (6)).Ellis v. Muscogee (Creek) Nation National Coun-cil, ‘‘Ellis II’’, SC 06–07 (Muscogee (Creek)2007)

[T]his Court finds indirect civil contempt toconsist of willful disobedience of any process ororder lawfully issued or made by the Court, orresistance willfully offered by any person to theexecution of a lawful order or process of theCourt. Ellis v. Muscogee (Creek) Nation NationalCouncil, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)


[W]e have not and will not be intimidated byeither branch of government; this Court servesthe Constitution and the Muscogee people. TheSupreme Court is a constitutional body with theresponsibility to interpret and uphold the laws.Attempts to control the Supreme Court, underthe guise of legislation, will not be tolerated.Ellis v. Muscogee (Creek) Nation National Coun-cil, ‘‘Ellis II’’, SC 06–07 (Muscogee (Creek)2007)


This Court has held in previous cases thateach branch of this government has a right tohire legal representation. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

This Court has addressed the issue of legalfunds before. As stated supra, all three brancheshave the right to legal counsel. All threeBranches of government deserve to have equalfunding for legal representation. Ellis v. Musco-gee (Creek) Nation National Council, ‘‘Ellis II’’,SC 06–07 (Muscogee (Creek) 2007)

[T]he National Council does not have theright to supplement their legal representation byNational Council Resolution, since the PrincipalChief has no right of review or veto of thisspending of Nation’s Treasury. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

This Court has held that a fundamental tenetof our case law is that each branch of govern-

ment remains autonomous and that each re-spects the duties of the others. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

There must be a careful balance of powerwhereupon each branch has special limitationsthat are constitutionally placed upon them. (em-phasis in original) Ellis v. Muscogee (Creek) Na-tion National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

We hold that the Executive Branch of thisgovernment is constitutionally responsible forthe preparation and administration of the Mus-cogee (Creek) Nation’s yearly Budget. The Leg-islative Branch’s responsibility to the yearlybudget is advice and consent to the PrincipalChief as was outlined supra. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

The purpose of advice is: ‘‘recommendationregarding a decision or course of conduct.’’ Thisadvice and consent is not to be construed asauthorizing the National Council to change line-items or alter the Budget process for their ownpurposes. Conversely, this does not give thePrincipal Chief unbridled powers. Ellis v. Mus-cogee (Creek) Nation National Council, ‘‘EllisII’’, SC 06–07 (Muscogee (Creek) 2007)

Traditionally, in our Creek society, a tribalofficer has an important role to fill in our Na-tion’s Government and should be given authori-ty to carry out his or her role without interfer-ence. Ellis v. Muscogee (Creek) Nation NationalCouncil, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The concept in our society is that all the roleswithin our society are important, and to behonored. Kinship and clan responsibilities arethe bedrock of our society, in earlier times aswarrior and peace keeping communities, andcontinuing today. Ellis v. Muscogee (Creek) Na-tion National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

For our tribal society to function properly, wemust honor and respect the respective roles ofothers. Our Constitution is based on our societalvalues, as a people, and that interconnectednesslays out the separate powers and duties of thevarious branches of government. Ellis v. Musco-gee (Creek) Nation National Council, ‘‘Ellis II’’,SC 06–07 (Muscogee (Creek) 2007)

Unlike other societies. there is nowhere inCreek society that one group or individual hascontrol of all of the affairs of tribal communi-ties. Ellis v. Muscogee (Creek) Nation NationalCouncil, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The separations of authority and the require-ment for respect of such separation is an in-grained part of our culture and society. Ellis v.Muscogee (Creek) Nation National Council, ‘‘El-lis II’’, SC 06–07 (Muscogee (Creek) 2007)

Today, we still have three co-equal branchesof government that we have continued to reiter-

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ate in our opinions are co-equal, each sharingpowers and each having inherent powers, butwith no one branch being more powerful thanthe other. Ellis v. Muscogee (Creek) Nation Na-tional Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)


[N]o individual within those branches shouldbelieve themselves above the law. Our law is alaw of the people, for the people, and by thepeople. Ellis v. Muscogee (Creek) Nation Nation-al Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)


We hold that the penalties for any case ofindirect civil contempt shall be: a) Court or-dered corrective action, and or; b) Public Cen-sure, and or; c) Fine of not less than $1,000,and or; d) Imprisonment of not more than l2months. Ellis v. Muscogee (Creek) Nation Na-tional Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The Supreme Court reviewed the record denovo and finds no evidence that the CitizenshipBoard acted arbitrarily and capriciously. Mus-cogee (Creek) Nation of Oklahoma v. Grahamand Johnson, SC 06–03 (Muscogee (Creek)2007)


The Muscogee Nation Supreme Court wascreated by the Muscogee Nation Constitutionand as such it is subject to those limitationscontained in the Constitution. Ellis v. Muscogee(Creek) National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

The Supreme Court has the power to enforceits orders, and judgments subject to the rules ofprocedure as to ‘‘due process’’ which it has

adopted. Ellis v. Muscogee (Creek) NationalCouncil, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)



It is the prerogative of the National Council toassign the judicial function of fact finding in thedistrict court to trial by jury. The inherent pow-ers of the District Court are also not addressedin this opinion. Ellis v. Muscogee (Creek) Nation-al Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

We think that the highest court of a sovereigngovernment, when created by the Constitutionof that government which recognizes the princi-ple of separation of powers, is entitled to be freeto function as the framers of that Constitutionintended, and it should guard its prerogativesjealously to preserve its powers as an indepen-dent co-equal branch of government. Ellis v.Muscogee (Creek) National Council, ‘‘Ellis II’’,SC 06–07 (Muscogee (Creek) 2007)



[A]s members of the Constitutional Conven-tion Commission the four unchallenged com-missioners are integral parts of the whole Com-mission, which is also a party to this action.Importantly, it is clear to this Court that thefour unchallenged members of the Commission,if allowed by this Court to go forward, wouldnot constitute a quorum to carry out the busi-ness of the Commission. Moreover, the lan-guage of the enabling amendment does notspecify a date certain for completion, and the

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Court therefore finds there is not a constitution-al mandate to complete the work of the Com-mission by the end of February, 2007, and thatthe Agreed Temporary Restraining Order in thiscase protects the parties. Begley v. The Constitu-tional Commission, SC 06–06 (Muscogee(Creek) 2006)

Courts are required to hear actual cases andcontroversies and not hypothetical ones. How-ever, the U.S. Supreme Court has stated a veryimportant exception to this rule: if a case iscapable of repetition, yet evading review, theCourt should and could hear and decide thecase. Oliver v. Muscogee (Creek) National Coun-cil, SC 06–04 (Muscogee (Creek) 2006)

This Court holds that failing to bring thenomination of a Supreme Court Justice nomi-nee to a vote of the full National Council is aviolation of the Constitution and a breach of thefiduciary duty owed to the Nation’s citizenry asa whole. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

As officers of this Nation, all three branchesare equally obligated to uphold the Muscogee(Creek) Nation Constitution. Each share a co-equal status and no one branch stands aboveanother. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)


[I]f one branch of our government abandonsthe co-equal model of government (as embodiedin the Constitution of this Nation) it no doubtwill lead to a weakened government and a truecrisis for citizens of this Nation. Oliver v. Mus-cogee (Creek) National Council, SC 06–04 (Mus-cogee (Creek) 2006)

Each of this Nation’s three branches of gov-ernment holds great power, but each must alsoact with a great sense of responsibility andrecognition of its rightful authority and its con-comitant limitations. Oliver v. Muscogee (Creek)National Council, SC 06–04 (Muscogee (Creek)2006)

In a previous case, this Nation’s DistrictCourt aptly stated, ‘‘Th[e District] Court shouldbe ever hesitant to interfere in the operations ofthe Executive and Legislative branches.’’ Bur-den v. Cox,1 Mvs. L. Rep. 135 (1988). This Courtagrees. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

[T]he ideals of justice and fairness embodiedin the doctrine of Due Process, which must beafforded to all citizens of the Muscogee (Creek)Nation, do not disappear at the door when apolitical appointee’s nomination is being re-viewed by either a Committee, a Subcommittee,a Planning Session, or the full membership ofthe National Council. Oliver v. Muscogee (Creek)

National Council, SC 06–04 (Muscogee (Creek)2006)

This Court hereby interprets the language ofthe Constitution to direct the National Counsel,at a regularly scheduled monthly meeting, toconsider and vote either in affirmation or disaf-firmation each and every Supreme Court Justiceappointee presented by the office of the Princi-pal Chief. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

We have held that the Constitution of thisNation must be strictly construed and interpret-ed; and where the plain language is clear, wemust not place a different meaning on thewords. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

This Court hereby holds that the Nation’sCode Title 26, Section 3–202 has the effect ofbeing in direct conflict with the intent of theframers of the Constitution, and therefore it isunconstitutional. Oliver v. Muscogee (Creek) Na-tional Council, SC 06–04 (Muscogee (Creek)2006)

Where, as here, there is a statute that is valid,clear, and directly on point, this Court mustfollow the Code of the Nation. Glass v. Musco-gee (Creek) Nation Tulsa Casino, SC 05–04 (Mus-cogee (Creek) 2006)

Title 21 Section 4–103.C.l.h (which limits theGaming Authority Board’s authority to sue or besued in any tribal, state or federal court), statesthat a litigant wishing to sue the Gaming Au-thority Board must first obtain a resolutionfrom the National Council waiving immunity tosuit. This statute is of such direct relevance tothe instant case, that no construction with otherstatutes is necessary. Glass v. Muscogee (Creek)Nation Tulsa Casino, SC 05–04 (Muscogee(Creek) 2006)

The Muscogee (Creek) Nation has a long his-tory of practicing separation of powers as isapparent in the teachings of some of the earliestdeclarations of this Court (going on to quoteMuscogee Nation v. Tiger, 7 Mvs. L. Rep. 8,Volume 10, Page 65, Original Handwritten Vol-ume (October 16, 1885)). Ellis v. Muscogee(Creek) Nation National Council, SC 05–03/05(Muscogee (Creek) 2006)

Though the term ‘‘separation of powers’’ isnot specifically delineated in the Muscogee(Creek) Constitution, this Court stated in Beaverv. National Council, 4 Mvs. L. Rep. 28 (Musco-gee (Creek) 1986), ‘‘the Constitution of the Mus-cogee (Creek) Nation is patterned after theUnited States Constitution with respect to sepa-ration of powers.’’ We further expounded onthis notion in Cox v. Kamp, 4 Mvs. L. Rep. 75(Muscogee (Creek) 1991) saying that ‘‘eachbranch of government has special limitationsplaced on it’’ and ‘‘there must be a balance ofpowers.’’ Finally, we also articulated that ‘‘theMuscogee (Creek) Nation Constitution intendedto incorporate into it the basic parts of theseparation of powers between the three branch-es of government.’’ Id. Ellis v. Muscogee (Creek)

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Nation National Council, SC 05–03/05 (Musco-gee (Creek) 2006)

The Constitution of the Muscogee (Creek) Na-tion ‘‘must be strictly construed and interpretedand where the Constitution speaks in plain lan-guage with reference to a particular matter, theCourt must not place a different meaning on thewords.’’ (Citing Cox v. Kamp, 4 Mvs. L. Rep. 75(Muscogee (Creek) 1991)) Ellis v. Muscogee(Creek) Nation National Council, SC 05–03/05(Muscogee (Creek) 2006)

Under the doctrine of separation of powers,the executive branch is the branch of govern-ment charged with implementing, and/or exe-cuting the law and running the day-to-day af-fairs of the government. Ellis v. Muscogee(Creek) Nation National Council, SC 05–03/05(Muscogee (Creek) 2006)

Also, under the doctrine of separation of pow-ers, the legislative branch is charged with legis-lating; making laws by which the citizenry abideand the Nation runs. Ellis v. Muscogee (Creek)Nation National Council, SC 05–03/05 (Musco-gee (Creek) 2006)

TTT is an Agreed Journal Entry sufficientenough a document to ‘‘specify the roles’’ of twoof our three branches of government? As to thelatter, this Court thinks not and believes theproposed Agreed Journal Entry sets a danger-ous precedent for all future relations betweenthe separate but equal branches of the Musco-gee (Creek) Nation. Ellis v. Muscogee (Creek)Nation National Council, SC 05–03/05 (Musco-gee (Creek) 2006)

The Muscogee (Creek) Nation Constitutioncannot be infringed upon or expounded on sim-ply by words in a superfluous document dis-guised as an ‘‘agreed order.’’ Ellis v. Muscogee(Creek) Nation National Council, SC 05–03/05(Muscogee (Creek) 2006)

There are defined procedures in place toamend our Constitution if there are deemed tobe inadequacies with the delineated responsibil-ities of the differing branches. Ellis v. Muscogee(Creek) Nation National Council, SC 05–03/05(Muscogee (Creek) 2006)

The Muscogee (Creek) Nation Constitution isthe epitome of what makes the Muscogee Na-tion great; a document that has withstood thetest of time, trials and tribulations, forced as-similation, statehood and eventual rebirth. Ellisv. Muscogee (Creek) Nation National Council, SC05–03/05 (Muscogee (Creek) 2006)

To allow an Agreed Journal Entry to super-sede the Constitution’s powers appears to thisCourt a very unwise leap to make. Ellis v.Muscogee (Creek) Nation National Council, SC05–03/05 (Muscogee (Creek) 2006)

The roles of the different branches are clearlydefined both in the Constitution of the Nationand in its laws, TTT, there are proper proceduresin place to amend the Constitution of this Na-tion, and those procedures should not be as-sumed by a document proposing to be an

Agreed Journal Entry in a lawsuit litigated be-tween the Principal Chief and the NationalCouncil. Ellis v. Muscogee (Creek) Nation Na-tional Council, SC 05–03/05 (Muscogee (Creek)2006)


Under the Doctrine of Separation of Powers,the Executive Branch as set out in the Musco-gee (Creek) Nation Constitution Article V, andfurther as organized in the laws in Title 16Muscogee (Creek) Nation Code,-‘‘ExecutiveBranch’’ shall remain in full force and effectunless duly changed by proper procedures tosecure a Constitutional Amendment or by TribalResolution. . . . as the head of the ExecutiveBranch, the Principal Chief continues to havethe authority to deal with all Executive Branchemployment decisions, except over independentagencies as will be discussed infra; includingbut not limited to all appointments as set out inthe Constitution of this Nation and any lawsthat the National Council shall enact. Ellis v.Muscogee (Creek) Nation National Council, SC05–03/05 (Muscogee (Creek) 2006)

As one of the specifically enumerated powersin the Muscogee (Creek) Constitution, the Prin-cipal Chief may call Extraordinary Sessions ofthe National Council as set forth in Article VSection 4 of the Constitution. With regards toExtraordinary Sessions, it is the order of thisCourt that the parties shall agree upon fair andproper procedures and rules that shall be effect-uated by the National Council within three (3)working days, or at such other times as theparties agree to after this Order, that will clarifywith specificity the rules regarding the PrincipalChiefs agenda for Extraordinary Sessions andhis submission thereof. Ellis v. Muscogee (Creek)Nation National Council, SC 05–03/05 (Musco-gee (Creek) 2006)

Each branch of the Muscogee (Creek) Nationhas the rights and powers consistent with theConstitution and this Court’s prior rulings tocontract on behalf of its own branch for theproper running of day-to-day activities that helpthe government run efficiently. (emphasis inoriginal) Ellis v. Muscogee (Creek) Nation Na-tional Council, SC 05–03/05 (Muscogee (Creek)2006)

The Principal Chief or his designee shall con-tinue to have the primary responsibility to nego-tiate, execute and carry out contracts on behalfof the Nation with the exceptions limited by theMuscogee (Creek) Nation Constitution or bylaw. (emphasis in original) Ellis v. Muscogee(Creek) Nation National Council, SC 05–03/05(Muscogee (Creek) 2006)

The National Council shall continue to au-thorize, approve and fund contracts on behalf ofthe Muscogee (Creek) Nation except as limited

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by the Muscogee (Creek) Nation Constitution orby law. Ellis v. Muscogee (Creek) Nation Nation-al Council, SC 05–03/05 (Muscogee (Creek)2006)

This Court holds that Title 30 Sections 3–1 04,8–101 and 8–102 of the Muscogee (Creek) Na-tion Code, as such sections pertain to the inves-tigatory powers of the National Council, arehereby stricken as unconstitutional violations ofindividual rights to due process of law. Ellis v.Muscogee (Creek) Nation National Council, SC05–03/05 (Muscogee (Creek) 2006)

A simple reading of the language of the Con-stitution indicates that the framers of the Mus-cogee (Creek) Nation Constitution envisioned agovernment where the legislature legislated: inother words, made laws for the Office of thePrincipal Chief to execute. Ellis v. Muscogee(Creek) Nation National Council, SC 05–03/05(Muscogee (Creek) 2006)

Nowhere in the Creek Nation’s Constitutiondoes the language state or even imply that theNational Council can mandate the PrincipalChief to act or refrain from acting in his officialcapacity. Ellis v. Muscogee (Creek) Nation Na-tional Council, SC 05–03/05 (Muscogee (Creek)2006)

This Court declares that TR 05–160 is uncon-stitutionally overbroad in restricting the powersof the Principal Chief to negotiate with otherforeign officials and governments for the better-ment of the Muscogee (Creek) Nation, and thisResolution is hereby stricken and shall immedi-ately be considered null and void. Ellis v. Mus-cogee (Creek) Nation National Council, SC05–03/05 (Muscogee (Creek) 2006)



[T]he text of Canon 3 requires disqualificationof a judge if the judge’s impartiality might rea-sonably be questioned including the situationwhere the judge is related to a lawyer in a pro-ceeding within the third degree of relationshipMCN Code, Title 26 § 4–103 C. (1)(d)(i). Thepurpose of this law is to insure fairness for anylitigant or party using Mvskoke courts. (empha-sis in original). In Re: The Practice of Law Beforethe Courts of the Muscogee (Creek) Nation, SC04–02 (Muscogee (Creek) 2005)


[T]he judge is not required by Canon 3 todisqualify himself. Nevertheless, Canon 3 can-not be disregarded. In Re: The Practice of LawBefore the Courts of the Muscogee (Creek) Nation,SC 04–02 (Muscogee (Creek) 2005)

Indeed Canon 3 is to insure a judge’s impar-tiality in all cases. As such, a judge should usehis own best judgment in weighing his relative’srole and interest in the case under consider-ation and determine if there could be a questionof a lack of impartiality. In Re: The Practice ofLaw Before the Courts of the Muscogee (Creek)Nation, SC 04–02 (Muscogee (Creek) 2005)



Citizens do not differentiate between the per-son and the office of the Judge. A judge musttherefore avoid impropriety in all activities. InRe: The Practice of Law Before the Courts of theMuscogee (Creek) Nation, SC 04–02 (Muscogee(Creek) 2005)

In determining a question of disqualification,it is essential for a judge to consider how hisdecisions will be perceived by prospective liti-gants in Muscogee (Creek) Nation Courts. In Re:The Practice of Law Before the Courts of theMuscogee (Creek) Nation, SC 04–02 (Muscogee(Creek) 2005)

It is the responsibility of the Judge in all casesto determine, himself, using his best judgment,if his decision will be perceived as unfair requir-ing recusal. In Re: The Practice of Law Beforethe Courts of the Muscogee (Creek) Nation, SC04–02 (Muscogee (Creek) 2005)

As a matter of tribal law, all conduct occur-ring on the Mackey site is subject to the laws ofthe Nation regardless of the status of the par-ties. The Mackey site is under the jurisdiction ofthe Nation because; (1) the land is located with-in the political and territorial boundaries of theNation; and (32) the land is owned by the Na-tion. 27 Muscogee (Creek) Nation Code. Ann.§ 1–102(A)(Territorial Jurisdiction). Muscogee(Creek) Nation v. One Thousand Four HundredSixty Three and 14/100; Methamphetamine; and

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a 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)







Because the citation issued to Russell Minerwas civil in nature, Oliphant does not apply.Muscogee (Creek) Nation v. One Thousand FourHundred Sixty Three and 14/100; Methamphet-

amine; and a 2004 General Motors Hummer H2,SC 05–01 (Muscogee (Creek) 2005)







The forfeiture taking place is an in rem civilaction against property used to transport orstore drugs on tribal property. The forfeitureproceedings are not individual criminal penal-ties. Muscogee (Creek) Nation v. One Thousand

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Four Hundred Sixty Three and 14/100; Metham-phetamine; and a 2004 General Motors HummerH2, SC 05–01 (Muscogee (Creek) 2005)

Individuals who have cars of lesser worth areroutinely subject to the forfeiture of their vehi-cles when such vehicles are used to possess ortransport drugs and this Court fails to see howvehicles are more or less expensive should es-cape forfeiture proceedings for the same con-duct. Muscogee (Creek) Nation v. One ThousandFour Hundred Sixty Three and 14/100; Metham-phetamine; and a 2004 General Motors HummerH2, SC 05–01 (Muscogee (Creek) 2005)

This Court will not be swayed by argumentsthat suggest the value of a vehicle should createand exception to the civil authority of the Na-tion. Muscogee (Creek) Nation v. One ThousandFour Hundred Sixty Three and 14/100; Metham-phetamine; and a 2004 General Motors HummerH2, SC 05–01 (Muscogee (Creek) 2005)

As sole owner of his business, he had fullauthority to use the vehicle for his personal useand in doing so, chose to transport illegal drugsin the vehicle. The forfeiture statute provides forproperty to be forfeited. This Court holds thatforfeiture was appropriate. Muscogee (Creek)Nation v. One Thousand Four Hundred SixtyThree and 14/100; Methamphetamine; and a2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)

[T]he Nation possess authority to regulatepublic safety through civil laws that restrict thepossession, use or distribution of illegal drugs.Muscogee (Creek) Nation v. One Thousand FourHundred Sixty Three and 14/100; Methamphet-amine; and a 2004 General Motors Hummer H2,SC 05–01 (Muscogee (Creek) 2005)


As stated in the Court’s Glass decision,MCNCA 21 § 4–103 (c)(1)(h) is ‘‘valid, clear anddirectly on point.’’ Glass v. Muscogee (Creek)Nation Tulsa Casino, et al.SC 05–04,( 2006)

The Court cannot supersede the powersgranted to us with respect to our appellateauthority. Brown and Williamson Tobacco Corp.v. District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).

Although federal law may serve as an infor-mative tool of guidance, procedural rules suchas our final order rule are solely mattes of triballaw. Brown and Williamson Tobacco Corp. v.District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).




Whether the Court chooses to adopt legalstandards form other jurisdictions into triballaw and how those standards are interpreted issolely within the realm of the Muscogee (Creek)Nations Supreme Court’s discretion. Brown andWilliamson Tobacco Corp. v. District Court, 5Okla. Trib. 447 (Muscogee (Creek) 1998).

Muscogee (Creek) Nation’s National Counciland not the Principal Chief has general appoint-ment powers under the Constitution of the Mus-cogee (Creek) Nation. Fife v. Health Systems, 4Okla. Trib. 319 (Muscogee (Creek) 1995).

All three branches of government of the Mus-cogee (Creek) Nation have right to employ legalcounsel to assist in accomplishing their consti-tutional responsibilities. Fife v. Health Systems,4 Okla. Trib. 319 (Muscogee (Creek) 1995).

Muscogee (Creek) Nation Constitution em-powers the National Council to legislate on mat-ters subject to constitutionally imposed limita-tions-‘‘to promote the public health and safety,education and welfare that may contribute tothe social, physical well-being and economicadvancement of citizens of the Muscogee(Creek) Nation.’’ Fife v. Health Systems, 4 Okla.Trib. 319 (Muscogee (Creek) 1995).

The language of both the Muscogee (Creek)Nation Juvenile and Family Code [NCA 92–119]and the Federal Indian Child Welfare [25U.S.C.S. 1915 (b)] is mandatory regardingplacement of a juvenile and the Court is notpersuaded that a trial judge may deviate fromthe law. In re J.S., 4 Okla. Trib. 187 (Muscogee(Creek) 1994).

Muscogee (Creek)Nation is like Oklahoma Su-preme Court in finding that the trial judge is inthe best position to weight all of the evidenceand absent abuse, the Court will not overturn ordisturb the trial court decision. In re J.S., 4Okla. Trib. 187 (Muscogee (Creek) 1994).


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The Constitution of the Muscogee (Creek) Na-tion must be strictly construed and interpretedand where the Constitution speaks in plain lan-guage with reference to a particular matter, theCourt must not place a different meaning on thewords. Cox v. Kamp, 5 Okla. Trib. 530 (Musco-gee (Creek) 1991).

Language ‘‘shall create & organize’’ in Mus-cogee (Creek) Constitution can be left to begiven so many different meanings that the Courtfinds it impossible to construe the words strict-ly. Cox v. Kamp, 5 Okla. Trib. 530 (Muscogee(Creek) 1991).

The duty of the Court is not to merely givedefinition to words within the law, but is as agroup, to determine the intent and scope behindthe words. Cox v. Kamp, 5 Okla. Trib. 530(Muscogee (Creek) 1991).

Court must look to what intent the foundersof the Constitution of the Creek Nation hadwhen using the language they used in draftingthe Constitution. Cox v. Kamp, 5 Okla. Trib. 530(Muscogee (Creek) 1991).


NCA 82–30 § 270 (B)(1) provides the Su-preme Court with appellate jurisdiction over allfinal orders. Health Board v. Skaggs and HealthBoard v. Taylor, 5 Okla. Trib. 442 (Muscogee(Creek) 1991).


We do not deny the possibility that in certainextreme and drastic circumstances this Courtmay retain the power to hear certain types ofinterlocutory appeals which are not expresslystated by the Muscogee (Creek) Nation codes.

Health Board v. Skaggs and Health Board v.Taylor, 5 Okla. Trib. 442 (Muscogee (Creek)1991).

Courts inability to hear interlocutory appeal isbound by NCA 82–30 § 270 (B) unless the legis-lature chooses to change its limitations. HealthBoard v. Skaggs and Health Board v. Taylor, 5Okla. Trib. 442 (Muscogee (Creek) 1991).

NCA 89–71 is an ordinance of the Muscogee(Creek) Nation that is constitutional and mustbe followed. National Council v. Cox, 5 Okla.Trib. 513 (Muscogee (Creek) 1990).






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Muscogee (Creek) Nation Constitution andstatutes dictate manner in which question oflaw are to be addressed by the Court. Muscogee(Creek) Nation v. American Tobacco Co., 5 Okla.Trib. 401 (Musc.(Cr.) D.Ct. 1998).


Jurisdiction includes but is not limited toproperty held in trust by the United States ofAmerica and to such other property as held by

the Muscogee (Creek) Nation. Muscogee (Creek)Nation v. American Tobacco Co., 5 Okla. Trib.401 (Musc. (Cr.) D.Ct. 1998).



Even if the language of the statutes requiredpersonal service, the Court has the discretion towaive the requirement of NCA 83–69 § 102Rule C. Muscogee (Creek) Nation v. AmericanTobacco Co., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct.1998).







Vacancies in office of the Kellyville MuscogeeIndian Community shall be filled in accordancewith Kellyville Muscogee Indian Community

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Constitution and by-laws. Kellyville Indian Com-munity v. Watashe, 5 Okla. Trib. 538 (Musc.(Cr.) D.Ct. 1991)

Although neither the Constitution nor Ordi-nances provide for mandamus, Court can lookto Oklahoma law for guidance. Kamp v. Cox, 5Okla. Trib. 520 (Musc. (Cr.) D.Ct. 1991).






[t]he key point is that any threat to the tribe’ssovereign interests flows from changed uses ornonmember activities, rather than from themere fact of resale. The tribe is able fully tovindicate its sovereign interests in protecting itsmembers and preserving tribal self-governmentby regulating nonmember activity on the land,

within the limits set forth in our cases. The tribehas no independent interest in restraining alien-ation of the land itself, and thus, no authority todo so. Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)









We conclude TTT, that tribal authority to regu-late state officers in executing process related tothe violation, off reservation, of state laws is notessential to tribal self-government or internal

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relations–to ‘‘the right to make laws and beruled by them.’’ Nevada v. Hicks, 533 U.S. 353(2001)








Indian tribes retain inherent sovereign powerto exercise some forms of civil jurisdiction overnon Indians on their reservations, even on nonIndian fee lands. A tribe may regulate, throughtaxation, licensing, or other means, the activi-ties of nonmembers who enter consensual rela-tionships with the tribe or its members, throughcommercial dealing, contracts, leases, or otherarrangements. A tribe may also retain inherentpower to exercise civil authority over the con-

duct of non Indians on fee lands within itsreservation when that conduct threatens or hassome direct effect on the political integrity, theeconomic security, or the health or welfare ofthe tribe. (quoting Montana v. United States, 450U.S. 544 (1981)) Strate v. A–1 Contractors, 520U.S. 438 (1997)




[T]he Nation has no applicable law concern-ing the creation and perfection of security inter-ests in vehicles. Malloy v. Wilserv Credit Union,516 F.3d 1180 (10th Cir. 2008)


Muscogee (Creek) Nation Stat. tit. 36,§ 3–104(B) concerning the issuance of titles:‘‘Notice of liens against said vehicle shall beplaced upon said title upon request of the lend-ing institution.’’ Muscogee (Creek) Nation Stat.tit. 27, § 4–101 providing that a creditor whodesires ‘‘to repossess any personal property TTT

from a person within the jurisdiction of theMuscogee Nation, unless such repossession iswith the written consent of the resident-debtor,must file a complaint in District Court.’’ Musco-gee (Creek) Nation Stat. tit. 24, § 7–405(C) pro-viding that ‘‘[l]iens have priority according tothe time of their creation, so long as the instru-ments creating the liens are duly recorded, and

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unless otherwise accorded a different status un-der the Nation’s law. The cited provisions eitherdo or do not bring the tribal title within theUCC definition of a certificate of title. We holdthat they do not.’’ Malloy v. Wilserv Credit Un-ion, 516 F.3d 1180 (10th Cir. 2008)

As for the argument of amici, we do notrequire that Nation certificate-of-title law be theexclusive source of establishing perfection andpriority. Malloy v. Wilserv Credit Union, 516F.3d 1180 (10th Cir. 2008)

The language contained in the title for identi-fying a first and second lienholder cannot sub-stitute for some Nation law concerning the legaleffect of such identification. The Nation statuteallowing for lien notation at the request of alending institution, Muscogee (Creek) NationStat. tit. 36, § 3–104(B), never mentions theword ‘‘perfection’’ let alone indicates that liennotation is required to perfect a security interestin a vehicle. Nor is there any indication ofwhether perfection occurs upon application fora title or when the application is issued notingthe lien. Malloy v. Wilserv Credit Union, 516F.3d 1180 (10th Cir. 2008)

The statute concerning repossession dealswith a remedy, Muscogee (Creek) Nation Stat.tit. 27, § 4–101, not the legal effect of liennotation and the consequences of perfection,i.e., priority. Finally, the first-in time, first-in-right rule appearing in Muscogee (Creek) Na-tion Stat. tit. 24, § 7–405(C), is part of lienprocedures applicable to housing and mortgageforeclosure and eviction. We agree with theother courts that it does not apply. Malloy v.Wilserv Credit Union, 516 F.3d 1180 (10th Cir.2008)









Having personally observed the gun andknowing Mr. Green’s background as a felon, wehave no doubt that the cross-deputized officerhad probable cause to conclude that the gunwas evidence of a crime. Thus, no warrant wasrequired for law enforcement to seize the gun.United States v. Green, 140 Fed.Appx. 798 (10thCir. 2005)

7. Judicial noticeIn the case at bar, it was necessary to show

only that notice and due process were affordedAppellant at said revocation hearing, and theCourt may take judicial notice of the laws andofficial records of the Muscogee (Creek) Nation.Bruner, d/b/a Chebon’s Indian Smoke Shop v.Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)

Judicial Notice can be taken at any stage ofany legal proceeding. Reynolds v. Skaggs, 4Okla. Trib. 51 (Muscogee (Creek) 1994).

Muscogee (Creek) Nation’s Supreme Courtmay take judicial notice of fact that persons

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have not been confirmed in their appointmentsto cabinet positions in Nation’s executivebranch, may declare such positions vacant, andmay issue permanent injunction regarding for-mer occupants of such positions and their cur-rent status. Cox v. Kamp, 2 Okla. Trib. 303(Muscogee (Creek) 1991).

Muscogee (Creek) Nation Supreme Court maytake judicial notice of laws and official recordsof Muscogee (Creek) Nation. Bruner v. Tax Com-mission, 1 Okla. Trib. 102 (Muscogee (Creek)1987).

In the case at bar, it was necessary to showonly that notice and due process were affordedAppellant at said revocation hearing, and theCourt may take judicial notice of the laws andofficial records of the Muscogee (Creek) Nation.Bruner, d/b/a Chebon’s Indian Smoke Shop v.Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)

8. Federal case law as precedentThe qualified immunity test requires a two-

part analysis: ‘‘(1) Was the law governing theofficial’s conduct clearly established? (2) Underthe law, could a reasonable officer have be-lieved the conduct was lawful?’’ [citing Act-Up/Portalnd v. Bagley, 988 F.2d 868, 871 (9thCir. 1993); Tribble v. Gardner, 860 F.2d 321, 324(9th Cir. 1988), cert. denied, 490 U.S. 1075(1989).] This Court is persuaded by and herebyadopts the forgoing reasoning regarding the ap-plication of the doctrine of qualified immunity.Molle and Chalakee v. The Gaming OperationsAuthority Board, et al., SC 06–05 (Muscogee(Creek) 2008)

It is also important for the parties to be re-minded of Harjo v. Kleppe. Harjo states that thePrincipal Chief is not the sole embodiment ofthe Muscogee (Creek) Nation. These same prin-ciples apply to the National Council. The Na-tional Council is not the sale embodiment of theMuscogee (Creek) Nation either. Ellis v. Musco-gee (Creek) Nation National Council, ‘‘Ellis II’’,SC 06–07 (Muscogee (Creek) 2007)


Courts are required to hear actual cases andcontroversies and not hypothetical ones. How-ever, the U.S. Supreme Court has stated a veryimportant exception to this rule: if a case iscapable of repetition, yet evading review, the

Court should and could hear and decide thecase. This Court agrees with and adopts thisview [Roe v. Wade, 410 U.S. 112, 113–114(1978)], and for the foregoing reason deniesDefendant’s Motion to Dismiss Case as Moot.Oliver v. Muscogee (Creek) National Council, SC06–04 (Muscogee (Creek) 2006)

This Court agrees with and adopts the reason-ing of the United State Supreme Court on thisissue in Quinn, [Quinn v. U.S., 349 U.S. 155, 75S.Ct. 668, 99 L.Ed. 964, 51 A.L.R.2d 1157(1955)] which is consistent with this Court’srulings. There is no doubt that the NationalCouncil, in order to properly legislate for theNation, needs additional information from timeto time. Ellis v. Muscogee (Creek) Nation Nation-al Council, SC 05-03/05 (Muscogee (Creek)2006)







If one party in a lawsuit is tribal member,interest of tribe in regulating activities of tribalmembers and resolving disputes over Indianproperty are sufficient to confer jurisdiction to

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the court. Enlow v. Bevenue, 4 Okla Trib. 175(Muscogee (Creek) 1994).

Constitution of Muscogee (Creek) Nation ispatterned after United States Constitution withrespect to separation of powers; decisions ofUnited States courts with respect to that doc-trine are therefore applicable with equal forceto government of Muscogee (Creek) Nation.Beaver, v. National Council, 1 Okla. Trib. 57(Muscogee (Creek) 1986).

All citizens of the Muscogee (Creek) Nationmay look to decisions of federal courts as prece-dents to follow in determination of free and justtribal elections. Beaver v. National Council, 1Okla. Trib. 57 (Muscogee (Creek) 1986).






Mandate of Montana [Montana v. U.S., 450U.S. 544 (1981)] recognizes a tribes regulatoryauthority if the conduct to be has or threatens tohave a substantial effect on the tribes politicalintegrity, economic security or health and wel-fare. Muscogee (Creek) Nation v. American To-bacco Co., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct.1998)

Canons of Treaty construction developed bythe United States Supreme Court resolve ambi-guities in favor of Indians and that language ofan Indian Treaty is to be understood today asthat same language was understood by tribal

representatives when the treaty was negotiated.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Entire reading of Treaty of 1856 in light ofhistorical realties clearly indicates that the Unit-ed States Congress has abrogated the treaty andsubsequently restored the governmental powersof the Muscogee (Creek) Nation which includesthe power of the Court to assert jurisdiction.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

No indication in the 1867 Treaty that the mengave up any right to full adjudicatory authority.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).







The sovereign authority of Indian tribes islimited in ways state and federal authority is

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not. Plains Commercial Bank v. Long FamilyLand & Cattle Co. et al., 128 S.Ct. 2709 (2008)






We recognize that in 1871 Congress endedthe practice of entering into treaties with theIndian tribes. 25 U.S.C. § 71. But the statutesaved existing treaties from being ‘‘invalidatedor impaired,’’ and this Court has explicitly stat-ed that the statute ‘‘in no way affected Con-

gress’ plenary powers to legislate on problemsof Indians,’’(quoting Antoine v. Washington, 420U.S. 194 (1975)) U.S. v. Lara, 541 U.S. 193(2004)








25 U.S.C. § 2804 which permits federal-stateagreements enabling state law-enforcementagents to act on reservations, applies only todeputizing them for the enforcement of federalor tribal criminal law. Nothing in the federalstatutory scheme prescribes, or even remotelysuggests, that state officers cannot enter a reser-vation (including Indian-fee land) to investigateor prosecute violations of state law occurring

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off the reservation. Nevada v. Hicks, 533 U.S.353 (2001)










[T]he Nation has no applicable law concern-ing the creation and perfection of security inter-ests in vehicles. Malloy v. Wilserv Credit Union,516 F.3d 1180 (10th Cir. 2008)




We disagree that federal-question jurisdictionnegates an Indian tribe’s immunity from suit.Indeed, nothing in § 1331 unequivocally abro-gates tribal sovereign immunity. In the contextof the United States’ sovereign immunity, wehave held that ‘‘[w]hile 28 U.S.C. § 1331 grantsthe court jurisdiction over all civil actions aris-ing under the Constitution, laws or treaties ofthe United States, it does not independentlywaive the Government’s sovereign immunity;§ 1331 will only confer subject matter jurisdic-tion where some other statute provides such awaiver.’’ [quoting from High Country CitizensAlliance v. Clarke, 454 F.3d 1177, 1181 (10thCir. 2006)]

(quotation omitted), cert. denied, 127 S.Ct.2134 (2007)(citations omitted in original). MinerElectric and Russell Miner v. Muscogee (Creek)Nation, 505 F.3d 1007 (10th Cir. 2007)

Tribal sovereign immunity is deemed to becoextensive with the sovereign immunity of theUnited States. [quoting Ramey Constr. Co. v.Apache Tribe of Mescalero Reservation, 673 F.2d315, 319–20 (10th Cir. 1982)] Miner Electric andRussell Miner v. Muscogee (Creek) Nation, 505F.3d 1007 (10th Cir. 2007)

Therefore, in an action against an Indiantribe, we conclude that § 1331 will only confersubject matter jurisdiction where another stat-

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ute provides a waiver of tribal sovereign immu-nity or the tribe unequivocally waives its im-munity. Miner Electric and Russell Miner v.Muscogee (Creek) Nation, 505 F.3d 1007 (10thCir. 2007)





[f]ederal courts do have jurisdiction under theICRA [Indian Civil Rights Act, 25 U.S.C.

§§ 1301–1303] to entertain habeas proceedings.Specifically, 25 U.S.C. § 1303 makes availableto any person ‘‘[t]he privilege of the writ ofhabeas corpus TTT, in a court of the UnitedStates, to test the legality of his detention byorder of an Indian tribe.’’ Walton v. Pueblo etal., 443 F.3d 1274 (10th Cir. 2006)






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9. Distribution of tribal judicial powersThe Supreme Court finds that the Appellants

failed to establish a right to intervene in theproceeding below. The District Court’s dismissalof Appellant’s oral Motion to Intervene is there-fore affirmed. Johnson and Johnson v. MuscogeeCreek Nation and Muscogee (Creek) Administra-tion Review Board, et al., SC 07–03 (Muscogee(Creek) 2009)

[T]he Court finds Petitioner’s Application isnot ripe for appellate review and that the Courtwill not exercise original jurisdiction in thiscase. The Court notes that this action wouldhave been more properly brought before theDistrict Court, where a Special Judge would beappointed to hear it. Muscogee (Creek) NationNational Council and Trepp v. Muscogee(Creek) Election Board, A.D. Ellis and Musco-gee (Creek) Constitutional Convention Commis-sion, SC 09–10 (Muscogee (Creek) 2009)

Where a statute states in plain language on aparticular matter, the Court will not place adifferent meaning on the words. Tiger v. Musco-gee (Creek) Nation Election Board, et al. SC07–04 (Muscogee (Creek) 2008)

The recent decision by this Court in Glass v.Muscogee (Creek) Nation Tulsa Casino, et al.decided in April 2006 (affirming dismissal be-cause no waiver from sovereign immunity was

obtained by Plaintiff) is controlling as to theGOAB [Gaming Operations Authority Board].Molle and Chalakee v. The Gaming OperationsAuthority Board, et al., SC 06–05 (Muscogee(Creek) 2008)


The Court further holds that the receipt of awaiver from sovereign immunity must be ob-tained from the National Council as a conditionprecedent to filing suit against the GOAB [Gam-ing Operations Authority Board]. Molle andChalakee v. The Gaming Operations AuthorityBoard, et al., SC 06–05 (Muscogee (Creek) 2008)

The District Court properly applied thisCourt’s decision in Glass,[Glass v. Muscogee(Creek) Nation Tulsa Casino, et al., SC 05–04(2006)] and therefore, the dismissal of Respon-dent/Defendant GOAB as being protected fromcivil suit by sovereign immunity was also prop-er. Molle and Chalakee v. The Gaming Opera-tions Authority Board, et al., SC 06–05 (Musco-gee (Creek) 2008)

The doctrine of sovereign immunity, a condi-tion precedent to filing suit against the GOAB,is often accompanied by the doctrine of quali-fied immunity for government employees actingwithin the scope of their employment. Qualifiedimmunity is not, however, absolute. Molle andChalakee v. The Gaming Operations AuthorityBoard, et al., SC 06–05 (Muscogee (Creek) 2008)

The qualified immunity test requires a two-part analysis: ‘‘(1) Was the law governing theofficial’s conduct clearly established? (2) Underthe law, could a reasonable officer have be-lieved the conduct was lawful?’’ [citing Act-Up/Portalnd v. Bagley, 988 F.2d 868, 871 (9thCir. 1993); Tribble v. Gardner, 860 F.2d 321, 324(9th Cir. 1988), cert. denied, 490 U.S. 1075(1989).] This Court is persuaded by and herebyadopts the forgoing reasoning regarding the ap-plication of the doctrine of qualified immunity.Molle and Chalakee v. The Gaming OperationsAuthority Board, et al., SC 06–05 (Muscogee(Creek) 2008)

On remand, the District Court should applythe two-part test discussed above [(1) Was thelaw governing the official’s conduct clearly es-tablished? (2) Under the law, could a reasonableofficer have believed the conduct was lawful?]to determine whether the named individual de-fendants may be immune from suite under thedoctrine of qualified immunity. Molle and Cha-lakee v. The Gaming Operations Authority Board,et al., SC 06–05 (Muscogee (Creek) 2008)

[T]hat the Motion for Emergency Stay filed byPlaintiff/Appellant Thlopthlocco Tribal Town be,and the same hereby is GRANTED and theDistrict Court’s June 20, 2007 order dissolvingits June 11, 2007 Temporary Restraining Order

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is stayed pending the conclusion of proceedingsin this Court on Thlopthlocco Tribal Town’sApplication for a Writ of MandamusTTT Thlopth-locco Tribal Town v. Moore, Anderson, et al., SC07–01 (Muscogee (Creek) 2007)


The Supreme Court has the power to enforceits orders, and judgments subject to the rules ofprocedure as to ‘‘due process’’ which it hasadopted. Ellis v. Muscogee (Creek) NationalCouncil, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The distinction between a civil contempt andcriminal contempt is dependent on the conse-quences to person accused of contempt. If aperson is sentenced to a definite term for a pastdeed, it is criminal. If a fine is imposed that isnot redeemable, it is criminal. The applicationof sanctions designed to coerce a person tocomply with a court’s orders is civil so long asthe contemnor is able to purge (avoid) the fineby complying with court’s order or is able to getout of jail by complying with a court order. Inthese cases, the sixth amendment, right to a jurytrial, does not apply. Ellis v. Muscogee (Creek)National Council, ‘‘Ellis II’’, SC 06–07 (Musco-gee (Creek) 2007)



We think that the highest court of a sovereigngovernment, when created by the Constitutionof that government which recognizes the princi-ple of separation of powers, is entitled to be freeto function as the framers of that Constitutionintended, and it should guard its prerogativesjealously to preserve its powers as an indepen-

dent co-equal branch of government. Ellis v.Muscogee (Creek) National Council, ‘‘Ellis II’’,SC 06–07 (Muscogee (Creek) 2007)








This Court has addressed the issue of legalfunds before. As stated supra, all three brancheshave the right to legal counsel. All threeBranches of government deserve to have equal

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funding for legal representation. Ellis v. Musco-gee (Creek) Nation National Council, ‘‘Ellis II’’,SC 06–07 (Muscogee (Creek) 2007)

This Court has held that a fundamental tenetof our case law is that each branch of govern-ment remains autonomous and that each re-spects the duties of the others. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

There must be a careful balance of powerwhereupon each branch has special limitationsthat are constitutionally placed upon them. (em-phasis in original) Ellis v. Muscogee (Creek) Na-tion National Council, ‘‘Ellis II’’, SC 06–07(Muscogee (Creek) 2007)

Today, we still have three co-equal branchesof government that we have continued to reiter-ate in our opinions are co-equal, each sharingpowers and each having inherent powers, butwith no one branch being more powerful thanthe other. Ellis v. Muscogee (Creek) Nation Na-tional Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)



We hold that the penalties for any case ofindirect civil contempt shall be: a) Court or-dered corrective action, and or; b) Public Cen-sure, and or; c) Fine of not less than $1,000,and or; d) Imprisonment of not more than l2months. Ellis v. Muscogee (Creek) Nation Na-tional Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)


Each of this Nation’s three branches of gov-ernment holds great power, but each must alsoact with a great sense of responsibility andrecognition of its rightful authority and its con-comitant limitations. Oliver v. Muscogee (Creek)National Council, SC 06–04 (Muscogee (Creek)2006)

We have held that the Constitution of thisNation must be strictly construed and interpret-ed; and where the plain language is clear, wemust not place a different meaning on the

words. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

Courts are required to hear actual cases andcontroversies and not hypothetical ones. How-ever, the U.S. Supreme Court has stated a veryimportant exception to this rule: if a case iscapable of repetition, yet evading review, theCourt should and could hear and decide thecase. This Court agrees with and adopts thisview [Roe v. Wade, 410 U.S. 112, 113–114(1978)], and for the foregoing reason deniesDefendant’s Motion to Dismiss Case as Moot.Oliver v. Muscogee (Creek) National Council, SC06–04 (Muscogee (Creek) 2006)

As stated in the Court’s Glass decision,MCNCA 21 § 4–103 (c)(1)(h) is ‘‘valid, clear anddirectly on point.’’ Glass v. Muscogee (Creek)Nation Tulsa Casino, et al. SC 05–04 (2006)

Where, as here, there is a statute that is valid,clear, and directly on point, this Court mustfollow the Code of the Nation. Glass v. Musco-gee (Creek) Nation Tulsa Casino, SC 05–04 (Mus-cogee (Creek) 2006)

Though the term ‘‘separation of powers’’ isnot specifically delineated in the Muscogee(Creek) Constitution, this Court stated in Beaverv. National Council, 4 Mvs. L. Rep. 28 (Musco-gee (Creek) 1986), ‘‘the Constitution of the Mus-cogee (Creek) Nation is patterned after theUnited States Constitution with respect to sepa-ration of powers.’’ We further expounded onthis notion in Cox v. Kamp, 4 Mvs. L. Rep. 75(Muscogee (Creek) 1991) saying that ‘‘eachbranch of government has special limitationsplaced on it’’ and ‘‘there must be a balance ofpowers.’’ Finally, we also articulated that ‘‘theMuscogee (Creek) Nation Constitution intendedto incorporate into it the basic parts of theseparation of powers between the three branch-es of government.’’ Id. Ellis v. Muscogee (Creek)Nation National Council, SC 05–03/05 (Musco-gee (Creek) 2006)


Each branch of the Muscogee (Creek) Nationhas the rights and powers consistent with theConstitution and this Court’s prior rulings tocontract on behalf of its own branch for theproper running of day-to-day activities that helpthe government run efficiently. (emphasis inoriginal) Ellis v. Muscogee (Creek) Nation Na-tional Council, SC 05–03/05 (Muscogee (Creek)2006)

The Courts of this Nation exercise generalcivil jurisdiction over all civil actions arisingunder the Constitution, laws or treaties whicharise within the Nation’s Indian country, re-gardless of the Indian or non-Indian status ofthe parties. 27 Muscogee (Creek) Nation Code.Ann. § 1–102(B)(Civil Jurisdiction). Muscogee(Creek) Nation v. One Thousand Four Hundred

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Sixty Three and 14/100; Methamphetamine; anda 2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)










Indeed Canon 3 is to insure a judge’s impar-tiality in all cases. As such, a judge should usehis own best judgment in weighing his relative’srole and interest in the case under consider-ation and determine if there could be a questionof a lack of impartiality. In Re: The Practice ofLaw Before the Courts of the Muscogee (Creek)Nation, SC 04–02 (Muscogee (Creek) 2005)



Citizens do not differentiate between the per-son and the office of the Judge. A judge musttherefore avoid impropriety in all activities. InRe: The Practice of Law Before the Courts of theMuscogee (Creek) Nation, SC 04–02 (Muscogee(Creek) 2005)

In determining a question of disqualification,it is essential for a judge to consider how hisdecisions will be perceived by prospective liti-gants in Muscogee (Creek) Nation Courts. In Re:The Practice of Law Before the Courts of theMuscogee (Creek) Nation, SC 04–02 (Muscogee(Creek) 2005)

It is the responsibility of the Judge in all casesto determine, himself, using his best judgment,if his decision will be perceived as unfair requir-ing recusal. In Re: The Practice of Law Beforethe Courts of the Muscogee (Creek) Nation, SC04–02 (Muscogee (Creek) 2005)


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Petitioners, just as any other litigant in theMuscogee (Creek) Courts still has available theright to appeal after a final order is issued bythe District Court. Brown and Williamson To-bacco Corp. v. District Court, 5 Okla. Trib. 447(Muscogee (Creek) 1998).

Supreme Court of the Muscogee (Creek) Na-tion may accept a question certified to it by theDistrict Court of the Nation. Reynolds v. Skaggs,4 Okla. Trib. 51 (Muscogee (Creek) 1994).

District Court of Muscogee (Creek) Nationhas power to grant writ of replevin for posses-sion of personal property by creditor for non-payment of amounts due. Stedman v. LocalAmerican Bank of Tulsa, 5 Okla. Trib. 548 (Mus-cogee (Creek) 1992).

Muscogee (Creek) Nation Supreme Court haspower to issue declaratory relief regarding pro-cedure by which Principal Chief’s veto of pro-posed ordinance was allegedly overridden, insuit brought by Principal Chief invoking Court’soriginal jurisdiction. Cox v. Childers, 2 Okla.Trib. 276 (Muscogee (Creek) 1991).

Only in rare eases, involving emergency de-manding immediate attention from SupremeCourt, will Muscogee (Creek) Nation SupremeCourt assume original jurisdiction without giv-ing tribal district court opportunity to first hearcase. Cox v. Crow, 2 Okla. Trib. 246 (Muscogee(Creek) 1991).

Muscogee (Creek) Nation’s Supreme Courtmay issue writ of mandamus directing managerof tribal business to provide books and recordsof such business to auditors upon petition byPrincipal Chief. Cox v. McIntosh, 2 Okla. Trib.182 (Muscogee (Creek) 1991).

Supreme Court of the Muscogee (Creek) Na-tion may appoint District Judge as its referee toconduct fact finding hearing. National Councilv. Cox., 5 Okla. Trib. 512 (Muscogee (Creek)1990).

Muscogee (Creek) Nation’s Constitution veststribal Supreme Court with power to assumeoriginal jurisdiction in case where constitution-ality and meaning of National Council ordi-nance is involved, and where tribal PrincipalChief maintains that Tribe lacks a seated districtcourt judge. In re District Judge, 2 Okla. Trib. 54(Muscogee (Creek) 1990).


Nothing therein [Article VII of the Muscogee(Creek) Nation Constitution] mandates that saidJustices and Judges shall be full citizens of theMuscogee (Creek) Nation and as is specificallyset forth and provided for in the articles thatpertain to the elected offices of Chief, SecondChief, and members of the National Council.

Bruner, d/b/a Chebon’s Indian Smoke Shop v.Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)







It is THEREFORE ORDERED, ADJUDGEDAND DECREED that each Justice of the Su-preme Court of the Muscogee (Creek) Nation

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shall and do retain their position and authorityand shall continue to serve as Justice until theirsuccessor is duly qualified. Done in Conference,October 31, 1986 (Muscogee (Creek) Nation(1986))




District Court has power to prescribe methodof establishing an agenda for meetings of theEufaula (Creek) Indian Community and hownotices of meetings are to be posted. McGirt v.Tiger, 5 Okla Trib. 557 (Musc. (Cr.) D.Ct. 1993).

District Court of the Muscogee (Creek) Nationhas power to appoint an Ahaka Mvhereuca forpurposes of mediating disputes within a Musco-gee (Creek) Nation Chartered Community. Mus-cogee (Creek) Nation v. Holdenville Indian Com-munity, 5 Okla. Trib. 551 (Musc. (Cr.) D.Ct.1992).

District Court of the Muscogee (Creek) Nationhas power to suspend control by officers ordirectors of Muscogee (Creek) Nation CharteredCommunities over such communities and theirresources where exigent circumstances exist.Muscogee (Creek) Nation v. Holdenville IndianCommunity, 5 Okla. Trib. 551 (Musc. (Cr.) D.Ct.1992).

District Court of the Muscogee (Creek) Nationhas power to direct officers of the Muscogee(Creek) Nation to provide training and technicalassistance to officers and/or directors of Musco-gee (Creek) Chartered Communities. Muscogee(Creek) Nation v. Holdenville Indian Community,5 Okla. Trib. 551 (Musc. (Cr.) D.Ct. 1992).

Where dispute threatening stability and/oreconomic well being of a Muscogee (Creek)Nation Chartered Community has occurred thatresulted in litigation, District Court may directCommunity to pay reasonable attorneys’ feesfrom Community funds. Muscogee (Creek) Na-

tion v. Holdenville Indian Community, 5 Okla.Trib. 551 (Musc. (Cr.) D.Ct. 1992).








It [sovereignty] centers on the land held bythe tribe and on tribal members within thereservation. Plains Commercial Bank v. LongFamily Land & Cattle Co. et al., 128 S.Ct. 2709(2008)

As part of their residual sovereignty, tribesretain power to legislate and to tax activities onthe reservation, including certain activities bynonmembers. Plains Commercial Bank v. Long

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Family Land & Cattle Co. et al., 128 S.Ct. 2709(2008)

They [tribes] may also exclude outsiders fromentering tribal land. Plains Commercial Bank v.Long Family Land & Cattle Co. et al., 128 S.Ct.2709 (2008)




[w]hen the tribe or tribal members convey aparcel of fee land ‘‘to non-Indians, [the tribe]loses any former right of absolute and exclusiveuse and occupation of the conveyed lands.’’(quoting South Dakota v. Bourland, 508 U.S.679 (1993)) (emphasis in original) Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)


We have recognized two exceptions to thisprinciple, circumstances in which tribes mayexercise ‘‘civil jurisdiction over non-Indians ontheir reservations, even on non-Indian feelands.’’ First, ‘‘[a] tribe may regulate, throughtaxation, licensing, or other means, the activi-ties of nonmembers who enter consensual rela-tionships with the tribe or its members, throughcommercial dealing, contracts, leases, or otherarrangements.’’ Second, a tribe may exercise‘‘civil authority over the conduct of non-Indianson fee lands within the reservation when thatconduct threatens or has some direct effect onthe political integrity, the economic security, orthe health or welfare of the tribe.’’ (quoting

Montana v. United States, 450 U.S. 544 (1981))(internal cites omitted) Plains Commercial Bankv. Long Family Land & Cattle Co. et al., 128S.Ct. 2709 (2008)



According to our precedents, ‘‘a tribe’s adju-dicative jurisdiction does not exceed its legisla-tive jurisdiction.’’ We reaffirm that principletodayTTT (quoting Strate v. A–1 Contractors, 520U.S. 438 (1997)) (internal cites omitted) PlainsCommercial Bank v. Long Family Land & CattleCo. et al., 128 S.Ct. 2709 (2008)

The status of the land is relevant ‘‘insofar as itbears on the application of TTT Montana’s ex-ceptions to [this] case.’’ (quoting Nevada v.Hicks, 533 U.S. 353 (2001)) Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)

Montana [Montana v. United States, 450 U.S.544 (1981)] does not permit Indian tribes toregulate the sale of non-Indian fee land. Mon-tana and its progeny permit tribal regulation ofnonmember conduct inside the reservation thatimplicates the tribe’s sovereign interests. Mon-tana expressly limits its first exception to the‘‘activities of nonmembers,’’ allowing these tobe regulated to the extent necessary ‘‘to protecttribal self-government [and] to control internalrelations.’’ Plains Commercial Bank v. LongFamily Land & Cattle Co. et al., 128 S.Ct. 2709(2008)


The logic of Montana [Montana v. UnitedStates, 450 U.S. 544 (1981)] is that certain activ-ities on non-Indian fee land (say, a business

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enterprise employing tribal members) or certainuses (say, commercial development) may in-trude on the internal relations of the tribe orthreaten tribal self-rule. To the extent they do,such activities or land uses may be regulated.Plains Commercial Bank v. Long Family Land &Cattle Co. et al., 128 S.Ct. 2709 (2008)



The power to tax certain nonmember activitycan also be justified as ‘‘a necessary instrumentof self-government and territorial management’’insofar as taxation ‘‘enables a tribal governmentto raise revenues for its essential services,’’ topay its employees, to provide police protection,and in general to carry out the functions thatkeep peace and order (quoting Merrion v. Jicar-illa Apache Tribe, 455 U.S. 130 (1982))(internalquotes omitted) Plains Commercial Bank v. LongFamily Land & Cattle Co. et al., 128 S.Ct. 2709(2008)


Any direct harm to its political integrity thatthe tribe sustains as a result of fee land sale issustained at the point the land passes fromIndian to non-Indian hands. It is at that pointthe tribe and its members lose the ability to usethe land for their purposes. Plains CommercialBank v. Long Family Land & Cattle Co. et al.,128 S.Ct. 2709 (2008)

Once the land has been sold in fee simple tonon-Indians and passed beyond the tribe’s im-mediate control, the mere resale of that landworks no additional intrusion on tribal relationsor self-government. Resale, by itself, causes noadditional damage. Plains Commercial Bank v.Long Family Land & Cattle Co. et al., 128 S.Ct.2709 (2008)






[n]onmembers have no part in tribal govern-ment—they have no say in the laws and regula-tions that govern tribal territory. Consequently,those laws and regulations may be fairly im-posed on nonmembers only if the nonmemberhas consented, either expressly or by his ac-tions. Even then, the regulation must stem fromthe tribe’s inherent sovereign authority to setconditions on entry, preserve tribal self-govern-ment, or control internal relations. Plains Com-mercial Bank v. Long Family Land & Cattle Co.et al., 128 S.Ct. 2709 (2008)


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The second exception authorizes the tribe toexercise civil jurisdiction when non-Indians’‘‘conduct’’ menaces the ‘‘political integrity, theeconomic security, or the health or welfare ofthe tribe.’’ The conduct must do more thaninjure the tribe, it must ‘‘imperil the subsis-tence’’ of the tribal community. (quoting Mon-tana v. United States, 450 U.S. 544 (1981)) (in-ternal citation omitted) Plains Commercial Bankv. Long Family Land & Cattle Co. et al., 128S.Ct. 2709 (2008)

The sale of formerly Indian-owned fee land toa third party is quite possibly disappointing tothe tribe, but cannot fairly be called ‘‘cata-strophic’’ for tribal self-government. PlainsCommercial Bank v. Long Family Land & CattleCo. et al., 128 S.Ct. 2709 (2008)



[u]nder our Indian tax immunity cases, the‘‘who’’ and the ‘‘where’’ of the challenged taxhave significant consequences. We have deter-mined that ‘‘[t]he initial and frequently disposi-tive question in Indian tax cases TTT is whobears the legal incidence of [the] tax,’’ and thatthe States are categorically barred from placingthe legal incidence of an excise tax ‘‘on a tribeor on tribal members for sales made inside Indi-an country’’ without congressional authoriza-tion (emphasis in original)(quoting OklahomaTax Comm’n v. Chickasaw Nation, 515 U.S. 450(1995)) Wagnon v. Prairie Band Potawatomi Na-tion, 546 U.S. 95 (2005)

We have further determined that, even whena State imposes the legal incidence of its tax ona non-Indian seller, the tax may nonetheless bepre-empted if the transaction giving rise to taxliability occurs on the reservation and the impo-

sition of the tax fails to satisfy the Brackerinterest-balancing test. Wagnon v. Prairie BandPotawatomi Nation, 546 U.S. 95 (2005)

Limiting the interest-balancing test exclusive-ly to on-reservation transactions between a non-tribal entity and a tribe or tribal member isconsistent with our unique Indian tax immunityjurisprudence. We have explained that this ju-risprudence relies ‘‘heavily on the doctrine oftribal sovereignty TTT which historically gavestate law ‘no role to play’ within a tribe’s terri-torial boundaries.’’ (emphasis in original, quot-ing Oklahoma Tax Commission v. Sac and FoxNation, 508 U.S. 114 (1993)) Wagnon v. PrairieBand Potawatomi Nation, 546 U.S. 95 (2005)





[i]n Duro v. Reina, [Duro v. Reina, 495 U.S.676 (1990)], this Court had held that a tribe nolonger possessed inherent or sovereign authorityto prosecute a ‘‘nonmember Indian.’’ But itpointed out that, soon after this Court decidedDuro, Congress enacted new legislation specifi-cally authorizing a tribe to prosecute Indianmembers of a different tribe. [Act of Oct. 28,1991, 105 Stat. 646]. That new statute, in per-mitting a tribe to bring certain tribal prosecu-tions against nonmember Indians, does not pur-port to delegate the Federal Government’s ownfederal power. Rather, it enlarges the tribes’ own‘‘powers of self-government’’ to include ‘‘the

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inherent power of Indian tribes, hereby recog-nized and affirmed, to exercise criminal juris-diction over all Indians,’’ including nonmem-bers. 25 U.S.C. § 1301(2) (emphasis added inoriginal). U.S. v. Lara, 541 U.S. 193 (2004)







Indian tribes’ regulatory authority over non-members is governed by the principles set forthin Montana v. United States, 450 U.S. 544(1981) Nevada v. Hicks, 533 U.S. 353 (2001)








Ordinarily, it is now clear, ‘‘an Indian reser-vation is considered part of the territory of theState’’ (quoting U.S. Dept. of Interior, FederalIndian Law 510, Note 1 (1958)) Nevada v.Hicks, 533 U.S. 353 (2001)

That is not to say that States may exert thesame degree of regulatory authority within areservation as they do without. To the contrary,the principle that Indians have the right tomake their own laws and be governed by themrequires ‘‘an accommodation between the inter-ests of the Tribes and the Federal Government,on the one hand, and those of the State, on the

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other.’’(quoting Washington v. ConfederatedTribes of Colville Reservation, 447 U.S. 134, 156(1980)) Nevada v. Hicks, 533 U.S. 353 (2001)






Were § 1983 [42 U.S.C. § 1983] claims cogni-zable in tribal court, defendants would inexpli-cably lack the right available to state-court§ 1983 defendants to seek a federal forum. Ne-vada v. Hicks, 533 U.S. 353 (2001)


Since it is clear, as we have discussed, thattribal courts lack jurisdiction over state officialsfor causes of action relating to their perform-ance of official duties, adherence to the tribalexhaustion requirement in such cases ‘‘wouldserve no purpose other than delay,’’ and is

therefore unnecessary. Nevada v. Hicks, 533U.S. 353 (2001)



An Indian tribe’s sovereign power to tax–whatever its derivation–reaches no further thantribal land. Atkinson Trading Company v. Shir-ley, Jr. et al.., 532 U.S. 645 (2001)





Indian tribes retain inherent sovereign powerto exercise some forms of civil jurisdiction overnon Indians on their reservations, even on nonIndian fee lands. A tribe may regulate, throughtaxation, licensing, or other means, the activi-ties of nonmembers who enter consensual rela-tionships with the tribe or its members, throughcommercial dealing, contracts, leases, or otherarrangements. A tribe may also retain inherentpower to exercise civil authority over the con-duct of non Indians on fee lands within its

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reservation when that conduct threatens or hassome direct effect on the political integrity, theeconomic security, or the health or welfare ofthe tribe. (quoting Montana v. United States, 450U.S. 544 (1981)) Strate v. A–1 Contractors, 520U.S. 438 (1997)





Tribal authority over the activities of non In-dians on reservation lands is an important partof tribal sovereignty. Civil jurisdiction over suchactivities presumptively lies in the tribal courtsunless affirmatively limited by a specific treatyprovision or federal statuteTTTT ‘‘In the absenceof any indication that Congress intended thediversity statute to limit the jurisdiction of thetribal courts, we decline petitioner’s invitationto hold that tribal sovereignty can be impairedin this fashion.’’ (quoting Iowa Mutual. Insur-ance. Co. v. LaPlante, 480 U.S. 9 (1987)) Stratev. A–1 Contractors, 520 U.S. 438 (1997)








We disagree that federal-question jurisdictionnegates an Indian tribe’s immunity from suit.Indeed, nothing in § 1331 unequivocally abro-gates tribal sovereign immunity. In the context

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of the United States’ sovereign immunity, wehave held that ‘‘[w]hile 28 U.S.C. § 1331 grantsthe court jurisdiction over all civil actions aris-ing under the Constitution, laws or treaties ofthe United States, it does not independentlywaive the Government’s sovereign immunity;§ 1331 will only confer subject matter jurisdic-tion where some other statute provides such awaiver.’’ [quoting from High Country CitizensAlliance v. Clarke, 454 F.3d 1177, 1181 (10thCir. 2006)] (quotation omitted), cert. denied, 127S.Ct. 2134 (2007)(citations omitted in original).Miner Electric and Russell Miner v. Muscogee(Creek) Nation, 505 F.3d 1007 (10th Cir. 2007)




The Dry Creek rule has ‘‘minimal precedentialvalue’’; in fact, this court has never held it to beapplicable other than in the Dry Creek [DryCreek Lodge, Inc. v. Arapahoe & ShoshoneTribes, 623 F.2d 682 (10th Cir. 1980)] decision

itself. Miner Electric and Russell Miner v. Mus-cogee (Creek) Nation, 505 F.3d 1007 (10th Cir.2007)




[t]he clean-hands doctrine ‘‘applie[s] not onlyto the participants in the transaction, but totheir heirs, and to all parties claiming under orthrough either of them.’’ [quoting Rust v. Gilles-pie, 90 Okla. 59 (1923)]. Although there is anexception to this rule for heirs who did notparticipate in the fraudulent conduct and canprove their claims without establishing the un-derlying fraud, [quoting Becker v. State, 312P.2d 935 (Okla.1957)], that exception does notapply. Here, proof of the fraudulent scheme isessential to Plaintiff’s claims (internal citesomitted) Estate of Bruner v. Bruner, 338 F.3d1172 (10th Cir. 2003)

This Court acknowledged Oklahoma did nottake steps to assume jurisdiction under the pre-vious PL–280 in Lewis v. Sac and Fox Tribe ofOklahoma Housing Authority. We held that‘‘[b]ecause Oklahoma did not take the appropri-ate steps to take jurisdiction under PL–280, theproper inquiry to be made in this case mustfocus upon the congressional policy of fosteringtribal autonomy in the light of pertinent U.S.

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Supreme Court jurisprudence.’’ Cossey v. Chero-kee Nation, 212 P.3d 447 (Okla. 2009)





Thus, a tribal court is not a court of generaljurisdiction. Its jurisdiction could be asserted inmatters involving non-Indians only when theiractivities on Indian lands are activities that maybe regulated by the Tribe. (citing Nevada v.Hicks, 533 U.S. 343 (2001)) Cossey v. CherokeeNation, 212 P.3d 447 (Okla. 2009)

The Oklahoma district court is a ‘‘court ofcompetent jurisdiction’’ to hear Cossey’s tortclaim. The Tribe’s sovereign interests are notimplicated so as to require tribal court jurisdic-

tion under the exceptions in Montana, supra.Cossey’s right to seek redress in the Oklahomadistrict court is guaranteed by our Constitution.Moreover, the United States Supreme Court hasupheld Montana and the cases following it, indi-cating the Court’s continued recognition of theneed to protect the sovereign interests of Indiantribes, while acknowledging the plenary powersof the states to adjudicate the rights of theircitizens within their borders. Cossey v. CherokeeNation, 212 P.3d 447 (Okla. 2009)

10. Practice of lawTribal Supreme Court has inherent power to

direct that only duly licensed and admitted topractice attorneys may represent litigants incourts of the Muscogee (Creek) Nation. Beaverv. National Council, 1 Okla. Trib. 57 (Muscogee(Creek) 1986).

All attorneys desiring to practice law beforecourts of the Muscogee (Creek) Nation mustapply to tribal Supreme Court upon motion of amember of that Court’s Bar, accompanied bycourt-determined annual fees and dues. Beaverv. National Council, 1 Okla. Trib. 57 (Muscogee(Creek) 1986).

11. StandingAlthough Muscogee (Creek) National Council

has standing to bring actions before tribalcourts, only in rare cases will such actions beentertained. Preferred Mgmt. Corp. v. NationalCouncil, 2 Okla. Trib. 37 (Muscogee (Creek)1990).

12. MootnessCourts are required to hear actual cases and

controversies and not hypothetical ones. How-ever, the U.S. Supreme Court has stated a veryimportant exception to this rule: if a case iscapable of repetition, yet evading review, theCourt should and could hear and decide thecase. This Court agrees with and adopts thisview [Roe v. Wade, 410 U.S. 112, 113–114(1978)], and for the foregoing reason deniesDefendant’s Motion to Dismiss Case as Moot.Oliver v. Muscogee (Creek) National Council, SC06–04 (Muscogee (Creek) 2006)

In light of court’s decision that contract withTribe is void due to absence of approval ofcontract as required by tribal law, other assert-ed reasons for invalidity of contract are moot.Preferred Mgmt. Corp. v. National Council, 2Okla. Trib. 37 (Muscogee (Creek) 1990).

13. JusticiabilityRequest for re-certification of number of dis-

trict citizens for purposes of determining num-ber of seats to be filled on Muscogee (Creek)National Council presents justiciable controver-sy subject to jurisdiction of District Court of theMuscogee (Creek) Nation. Thomas v. ElectionBoard, 1 Okla. Trib. 124 (Musc. (Cr.) D.Ct.1987).

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14. Pretrial procedureTribal Attorney General may be given leave to

intervene where issues raised could have sub-stantial impact upon tribe. Courtwright v. July, 3Okla. Trib. 132 (Muscogee (Creek) 1993).

15. Notice and service of processPersonal jurisdiction shall exist when person

is served within jurisdictional territory orserved anywhere in cases arising within territo-rial jurisdiction of the Muscogee (Creek) Nation.Muscogee (Creek) Nation v. American TobaccoCo., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct. 1998).

Court approves of service by certified mail asa common practice. Muscogee (Creek) Nation v.American Tobacco Co., 5 Okla. Trib. 401 (Musc.(Cr.) D.Ct. 1998).

Even if the language of the statutes requiredpersonal service, the Court has the discretion towaive the requirement of NCA 83–69 § 102Rule C. Muscogee (Creek) Nation v. AmericanTobacco Co., 5 Okla. Trib. 401 (Musc. (Cr.) D.Ct.1998).


Service of process should be given in mostefficient manner that will ensure defendants’receive notice. Muscogee (Creek) Nation v. Amer-ican Tobacco Co., 5 Okla. Trib. 401 (Musc. (Cr.)D.Ct. 1998).

Where members of Muscogee (Creek) Nationare notified by mail of upcoming elections andclearly instructed to request absentee ballotshould they desire to vote, tribal ordinance re-quiring such a request by a member in order tocast absentee ballot imposes no unconstitutionalburden of voters. O.C.M.A. v. National Council,1 Okla. Trib. 293 (Musc. (Cr.) D.Ct. 1989).

16. RecusalThe decision of a Supreme Court Justice to

remove himself from a case properly before theCourt is a decision the Justice can make as longas the best interests of the Nation are taken intoconsideration. Reynolds v. Skaggs, 4 Okla. Trib.51 (Muscogee (Creek) 1994).

District judge should determine whether hehas conflict of interest stemming from profes-sional relationship between judge and attorneyfor one party. Preferred Mgmt. Corp. v. NationalCouncil, 2 Okla. Trib. 37 (Muscogee (Creek)1990).

Where district court judge disqualifies, thatjudge should do so certify to tribal SupremeCourt, which will appoint a temporary judgefrom among members of tribal bar association.Preferred Mgmt. Corp. v. National Council, 2Okla. Trib. 37 (Muscogee (Creek) 1990).

Aggrieved party may apply to tribal SupremeCourt to assume original jurisdiction and grantappropriate relief where trial court judge fails

to disqualify. Preferred Mgmt. Corp. v. NationalCouncil, 2 Okla. Trib. 37 (Muscogee (Creek)1990).

Participation of Justices or Justice in pretrialconference with attorneys for one party but notthe other is not grounds for disqualification ofthat Justice or Justices when reason for conductof pretrial conference in that format is failure ofnonattending attorney to appear after provisionof proper notice. Beaver v. National Council, 1Okla. Trib. 57 (Muscogee (Creek) 1986).

17. DiscoveryDistrict Court of Muscogee (Creek) Nation

has power to direct discovery in civil cases, andto monetarily sanction a party where warrantedby course of discovery proceedings. Perry v.Holdenville Creek Community, 3 Okla. Trib. 320(Musc. (Cr.) D.Ct. 1993).

18. Burden of proofCandidate bringing protest before District

Court of Muscogee (Creek) Nation bears burdenof proof regarding allegations in protest peti-tion. In re Williams, 3 Okla. Trib. 311 (Musc.(Cr.) D.Ct. 1993).

19. Collateral attackWhere an individual has failed to challenge

directly an administrative body’s license revoca-tion, but rather collaterally attacks the action ina later judicial injunctive proceeding againstthat individual, such subsequent judicial pro-ceeding involves no retrial de novo of the issuesresolved at the license-revocation hearing, butonly involves the limited questions of notice anddue process. Bruner v. Tax Commission, 1 Okla.Trib. 102 (Muscogee (Creek) 1987).

20. RemediesReason for declining writs of mandamus and

prohibition is because these are extraordinaryremedies to be issued only when no othermeans of attaining justice are available. Brownand Williamson Tobacco Corp. v. District Court,5 Okla. Trib. 447 (Muscogee (Creek) 1998).


Petitioners have same remedies of appealavailable to them as all parties in our Courtsystem. Brown and Williamson Tobacco Corp. v.District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).

Tribal Supreme Court has authority to modifydistrict court’s order in a manner more favor-able to appellee, where underlying facts warrantmodification to correspond to relief petitionedand prayed for by appellee. Bryant v. Tax Com-mission, 1 Okla. Trib. 102 (Muscogee (Creek)1987).

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District Court of Muscogee (Creek) Nationhas power to quiet title to real property. Musco-gee (Creek) Nation v. Checotah Community, 3Okla. Trib. 239 (Muscogee (Cr.) D.Ct. 1993).









[t]he clean-hands doctrine ‘‘applie[s] not onlyto the participants in the transaction, but totheir heirs, and to all parties claiming under orthrough either of them.’’ [quoting Rust v. Gilles-pie, 90 Okla. 59 (1923)]. Although there is anexception to this rule for heirs who did notparticipate in the fraudulent conduct and canprove their claims without establishing the un-derlying fraud, [quoting Becker v. State, 312P.2d 935 (Okla.1957)], that exception does not

apply. Here, proof of the fraudulent scheme isessential to Plaintiff’s claims (internal citesomitted) Estate of Bruner v. Bruner, 338 F.3d1172 (10th Cir. 2003)




21. Temporary reliefDistrict Court of Muscogee (Creek) Nation

has power to interpret gaming contract betweenNation and gaming contractor, to determinewhether breach thereof has occurred, and toissue preliminary injunction where warrantedby legal circumstances. Muscogee (Creek) Nationv. Indian Country USA., Inc., 1 Okla. Trib. 267(Musc. (Cr.) D.Ct. 1989).

22. Declaratory reliefMuscogee (Creek) Nation Supreme Court has

power to issue declaratory relief regarding pro-cedure by which Principal Chief’s veto of aproposed ordinance was allegedly overridden,in suit brought by Principal Chief invokingCourt’s original jurisdiction. Cox v. Childers, 2Okla. Trib. 276 (Muscogee (Creek) 1991).

23. InjunctionMuscogee (Creek) Nation’s Supreme Court

may take judicial notice of fact that personshave not been confirmed in their appointmentsto cabinet positions in Nation’s executivebranch, may declare such positions vacant, andmay issue permanent injunction regarding for-mer occupants of such positions and their cur-rent status. Cox v. Kamp, 2 Okla. Trib. 303(Muscogee (Creek) 1991).

Court may enjoin conduct of election wheresuch would be pursuant to unconstitutional trib-al statutes or ordinances. Beaver v. NationalCouncil, 1 Okla. Trib. 57 (Muscogee (Creek)1986).

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24. Mandamus and prohibitionReason for declining writs of mandamus and

prohibition is because these are extraordinaryremedies to be issued only when no othermeans of attaining justice are available. Brownand Williamson Tobacco Corp. v. District Court,5 Okla. Trib. 447 (Muscogee (Creek) 1998).


Muscogee (Creek) Nation Supreme Court mayissue writ of mandamus directing manager of atribal business to provide books and records ofsuch business to auditors upon petition by Prin-cipal Chief. Cox v. McIntosh, 2 Okla. Trib. 182(Muscogee (Creek) 1991).

Although neither the Constitution nor Ordi-nances provide for mandamus so the Court canlook to Oklahoma Law for guidance. Kamp v.Cox, 5 Okla. Trib. 520 (Musc. (Cr.) D.Ct. 1991).

District Court of Muscogee (Creek) Nationmay impose fines on officials of Nation’s execu-tive branch for failure to comply with writ ofmandamus directing them to comply with validand constitutional tribal ordinance. Frye v. Cox,2 Okla. Trib. 179 (Musc. (Cr.) D.Ct. 1991).

Tribal court may issue mandamus to tribalDirector of Treasury and Comptroller of Trea-sury to issue payment of moneys owed to coun-sel validly retained by tribal legislative branch.Childers v. Bryant, 1 Okla. Trib. 311 (Musc. (Cr.)D.Ct. 1989).

25. ContemptThe distinction between a civil contempt and

criminal contempt is dependent on the conse-quences to person accused of contempt. If aperson is sentenced to a definite term for a pastdeed, it is criminal. If a fine is imposed that isnot redeemable, it is criminal. The applicationof sanctions designed to coerce a person tocomply with a court’s orders is civil so long asthe contemnor is able to purge (avoid) the fineby complying with court’s order or is able to getout of jail by complying with a court order. Inthese cases, the sixth amendment, right to a jurytrial, does not apply. Ellis v. Muscogee (Creek)National Council, ‘‘Ellis II’’, SC 06–07 (Musco-gee (Creek) 2007)

The Court hereby ORDERS George Tiger, inhis capacity as Speaker of the National Council,to return the below described official Courtrecord to the office of the Supreme Court nolater that 10:00 a.m. on August 3, 2007, saidrecord being described as: The full and com-plete original audio recording which constitutesa portion of the official transcript of the Su-preme Court hearing which was held on July18, 2007 in the above captioned matter. Failureto fully and timely comply with this Order shallbe deemed an act of direct contempt of thisCourt. Ellis v. Muscogee (Creek) Nation National

Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The type of infringement repeatedly exhibitedby the National Council simply cannot continue.It is manipulative, disruptive, and in contra-diction to the established law of the Muscogee(Creek) Nation. Ellis v. Muscogee (Creek) NationNational Council, ‘‘Ellis II’’, SC 06–07 (Musco-gee (Creek) 2007)

Plaintiffs request for a citation of civil con-tempt presents a case of first impression for thisCourt. We find that in any instance of blatantand obvious disregard for the orders of theSupreme Court or the District Court, the Courtsof the Muscogee (Creek) Nation have inherentpower to enforce compliance with such lawfulorders through contempt proceedings. (MCNCode. Title 27. App.2, Rule 20 (C)(5) and (6)).Ellis v. Muscogee (Creek) Nation National Coun-cil, ‘‘Ellis II’’, SC 06–07 (Muscogee (Creek)2007)






We hold that the penalties for any case ofindirect civil contempt shall be: a) Court or-

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dered corrective action, and or; b) Public Cen-sure, and or; c) Fine of not less than $1,000,and or; d) Imprisonment of not more than l2months. Ellis v. Muscogee (Creek) Nation Na-tional Council, ‘‘Ellis II’’, SC 06–07 (Muscogee(Creek) 2007)

The citizens of this Nation need to be awarethat those individuals elected to serve on theNational Council and represent the people ofthe Muscogee (Creek) Nation disrespected thisCourt and the authority of this Court and disre-spected the Principal Chief. Ellis v. Muscogee(Creek) Nation National Council, ‘‘Ellis II’’, SC06–07 (Muscogee (Creek) 2007)

Muscogee (Creek) Nation Supreme Court haspower to direct Nation’s Principal Chief to showcause as to why he is not in contempt, whereNation’s executive branch or Principal Chiefcontinued employment of individuals in viola-tion of earlier Order from that Court. Cox v.Kamp, 2 Okla. Trib. 303 (Muscogee (Creek)1991).

Tribal Supreme Court has power to vacatecontempt enforcement decree subsequent topurging of contempt. In re Financial Services, 2Okla. Trib. 185 (Muscogee (Creek) 1991).

Tribal Supreme Court has power, when en-forcing sanctions pursuant to a finding of con-tempt, to order financial institutions holdingtribal funds to desist from paying such funds toa tribal official in contempt. In re FinancialServices, 2 Okla. Trib. 142 (Muscogee (Creek)1990).

District Court of Muscogee (Creek) Nationmay impose fines on officials of Nation’s execu-tive branch for failure to comply with writ ofmandamus directing them to comply with validand constitutional tribal ordinance. Frye v. Cox,2 Okla. Trib. 179 (Musc. (Cr.) D.Ct. 1991).

Courts of the Muscogee (Creek) Nation havepower to impose monetary civil contempt sanc-tions against executive branch officers wheresuch officers have failed to comply with a courtorder. Frye v. Cox, 5 Okla. Trib. 516 (Musc. (Cr.)D.Ct. 1990).

26. SeizureBecause the citation issued to Russell Miner

was civil in nature, Oliphant does not apply.Muscogee (Creek) Nation v. One Thousand FourHundred Sixty Three and 14/100; Methamphet-amine; and a 2004 General Motors Hummer H2,SC 05–01 (Muscogee (Creek) 2005)






Individuals who have cars of lesser worth areroutinely subject to the forfeiture of their vehi-cles when such vehicles are used to possess ortransport drugs and this Court fails to see howvehicles are more or less expensive should es-cape forfeiture proceedings for the same con-duct. Muscogee (Creek) Nation v. One ThousandFour Hundred Sixty Three and 14/100; Metham-phetamine; and a 2004 General Motors HummerH2, SC 05–01 (Muscogee (Creek) 2005)


As sole owner of his business, he had fullauthority to use the vehicle for his personal useand in doing so, chose to transport illegal drugsin the vehicle. The forfeiture statute provides forproperty to be forfeited. This Court holds thatforfeiture was appropriate. Muscogee (Creek)Nation v. One Thousand Four Hundred SixtyThree and 14/100; Methamphetamine; and a

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2004 General Motors Hummer H2, SC 05–01(Muscogee (Creek) 2005)



Where smokeshops within Muscogee (Creek)Nation’s jurisdiction is operating without requi-site tribally-issued license, and unstamped ciga-rettes are seized by Nation as contraband andsubsequently forfeited to Nation, Creek Nationcharter communities or tribal towns lose anytax lien on cigarettes which they otherwisemight have had. Tax Commission v. Nave, 3Okla. Trib. 118 (Musc. (Cr.) D.Ct. 1993).

Muscogee (Creek) Nation NCA 92–71 validlyrequires smokeshops within Nation’s jurisdic-

tion to obtain retail license; absent such license,unstamped cigarettes are contraband, and sub-ject to valid seizure by Nation’s Lighthorse Ad-ministration and forfeiture to Nation. Tax Com-mission v. Nave, 3 Okla. Trib. 118 (Musc. (Cr.)D.Ct. 1993).

Even where tribe has validly seized a vehicleused as instrumentality to store contraband un-stamped cigarettes of smokeshops operatingwithout requisite tribal retailer’s license, Musco-gee (Creek) Nation’s courts may recognize per-fected security interest in vehicle, and releasethat vehicle to interest holder or to owner. TaxCommission v. Nave, 2 Okla. Trib. 435 (Musc.(Cr.) D.Ct. 1992).

27. Attorney’s feesAll three branches of government of the Mus-

cogee (Creek) Nation have right to employ legalcounsel to assist in accomplishing their consti-tutional responsibilities. Fife v. Health Systems,4 Okla. Trib. 319 (Muscogee (Creek) 1995).

Unsuccessful litigant is not entitled to Courtaward of attorney’s fees, costs or expenses. Fifev. Health Systems, 4 Okla. Trib. 319 (Muscogee(Creek) 1995).

Court may order payment of reasonable attor-neys’ fees by tribe to successful plaintiff/candi-date in judicially-resolved election-law dispute.Beaver v. National Council, 1 Okla. Trib. 57(Muscogee (Creek) 1986).

§ 2. [Supreme Court]

The Supreme Court shall be composed of six (6) members appointed by thePrincipal Chief, subject to majority approval by the Muscogee (Creek) NationalCouncil, and whose term shall be for six (6) years beginning July 1. No personshall be appointed as a Supreme Court Justice who has a felony conviction in acourt of competent jurisdiction.

[Amended by NCA 95–72.]

Historical and Statutory Notes1995 Amendments

The 1995 amendment was passed by referen-dum on July 22, 1995, by a vote of 1,378 to 231.

Cross References

Nomination and confirmation procedures for Supreme Court Justices and District Court Judge, seeTitle 26, § 3–201 et seq.

Notes of DecisionsConstruction and application 1Vacancies 2

1. Construction and applicationThe Principal Chief, as head of the Executive

Branch, is given the duty and power to makejudicial appointments to the Supreme Court.However, the Principal Chiefs power to make

such appointments to the Court is not absolute;it is subject to the majority approval of theNational Council. Oliver v. Muscogee (Creek) Na-tional Council, SC 06–04 (Muscogee (Creek)2006)

This Court holds that failing to bring thenomination of a Supreme Court Justice nomi-nee to a vote of the full National Council is a

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violation of the Constitution and a breach of thefiduciary duty owed to the Nation’s citizenry asa whole. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)


The Court agrees that the Plaintiff was enti-tled to a reasonable notice to appear before andbe heard by either a Committee of the NationalCouncil, the Planning Session, or the regularlyscheduled monthly meeting of the full NationalCouncil. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

[T]he ideals of justice and fairness embodiedin the doctrine of Due Process, which must beafforded to all citizens of the Muscogee (Creek)Nation, do not disappear at the door when apolitical appointee’s nomination is being re-viewed by either a Committee, a Subcommittee,a Planning Session, or the full membership ofthe National Council. Oliver v. Muscogee (Creek)National Council, SC 06–04 (Muscogee (Creek)2006)

Each and every political appointee should beafforded an opportunity to relate and discuss hisor her qualifications for the position to whichhe or she has been nominated by the office ofthe Principal Chief-this is the opportunity to beheard. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

[A]ny such nominee should be given reason-able notice of his or her required appearance infront of any gathering of members of the Na-tional Council-whether a Committee, a Sub-committee, the Planning Session, or a regularlyscheduled meeting of the full National Council.A couple of hours notice-as occurred in theinstant case-is insufficient to serve as reasonablenotice. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

[W]orking hand in hand with the nomineesright to be heard is the duty of the NationalCouncil to provide the Citizens with an openand outward assurance that-regardless ofwhether the nomination was approved or reject-ed-the nomination was considered in as unbi-ased a fashion as possible, that the Council’sdecision comports with the best interests of thecitizens and of the Nation, and that its decisionwas not arbitrary or capricious. Oliver v. Musco-gee (Creek) National Council, SC 06–04 (Musco-gee (Creek) 2006)

[A] ‘‘majority approval’’ in its most basicinterpretation means a simple majority vote ofthe quorum present as opposed to a super-majority. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

This Court hereby interprets the language ofthe Constitution to direct the National Council,

at a regularly scheduled monthly meeting, toconsider and vote either in affirmation or disaf-firmation each and every Supreme Court Justiceappointee presented by the office of the Princi-pal Chief. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

Neither the National Council Planning Ses-sion, the Business & Government Committee, orany other Committee or Sub-committee shouldbe deemed to speak for the National Council,whose voice must be the voice of the citizens.Such Committees may make recommendationsto the National Council; but it would be grant-ing far too great a power to such a small num-ber of representatives to allow such Committeesto make a final determination regarding nomi-nees and appointments from the office of thePrincipal Chief. Oliver v. Muscogee (Creek) Na-tional Council, SC 06–04 (Muscogee (Creek)2006)

[T]his Court holds that a Supreme Court judi-cial nominee from the office of the PrincipalChief must be brought to a vote of the fullNational Council at a regularly scheduledmonthly meeting and shall not be deemed ap-proved or rejected by Committee nor in Plan-ning Session. A vote of the constitutionally man-dated quorum necessary to conduct businessshall suffice as the full National Council, and nosuper-majority will be required. Oliver v. Musco-gee (Creek) National Council, SC 06–04 (Musco-gee (Creek) 2006)


This Court recognizes that some limitation onthe number of times a nominee is submittedmay be appropriate, but refuses to encroachupon the legislative function of the NationalCouncil which must author and pass such lawsinto effect. However, until such legislation is inplace, this Court notes that there is no limit onthe number of times a nominee may be resub-mitted. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)


Nothing therein [Article VII of the Muscogee(Creek) Nation Constitution] mandates that saidJustices and Judges shall be full citizens of theMuscogee (Creek) Nation and as is specificallyset forth and provided for in the articles thatpertain to the elected offices of Chief, SecondChief, and members of the National Council.Bruner, d/b/a Chebon’s Indian Smoke Shop v.

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Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)

Article III, Section 4 of the Constitution of theMuscogee (Creek) Nation, and wherein thephrase appears: ‘‘All Muscogee (Creek) Indiansby blood, who are less than one-fourth Musco-gee (Creek) Indian by blood, shall be consideredcitizens and shall have all rights of entitlementas members of the Muscogee (Creek) NationEXCEPT THE RIGHT TO HOLD OFFICE’’, isconstrued to be of a general nature and applica-tion, and, therefore, subordinate to Article IIIwhich is controlling. (emphasis in original).Bruner, d/b/a Chebon’s Indian Smoke Shop v.Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)






Principal Chief of Muscogee (Creek) Nationhas responsibility to nominate, and NationalCouncil to approve, appointments to SupremeCourt of Muscogee (Creek) Nation; failure ofthose branches of government to agree on nomi-

nees, however, does not constitute obstructionof justice. O.C.M.A. v. National Council, 1 Okla.Trib. 293 (Musc. (Cr.) D.Ct. 1989).

2. VacanciesThe Principal Chief, as head of the Executive

Branch, is given the duty and power to makejudicial appointments to the Supreme Court.However, the Principal Chiefs power to makesuch appointments to the Court is not absolute;it is subject to the majority approval of theNational Council. Oliver v. Muscogee (Creek) Na-tional Council, SC 06–04 (Muscogee (Creek)2006)

This Court holds that failing to bring thenomination of a Supreme Court Justice nomi-nee to a vote of the full National Council is aviolation of the Constitution and a breach of thefiduciary duty owed to the Nation’s citizenry asa whole. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)


The Court agrees that the Plaintiff was enti-tled to a reasonable notice to appear before andbe heard by either a Committee of the NationalCouncil, the Planning Session, or the regularlyscheduled monthly meeting of the full NationalCouncil. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

[T]he ideals of justice and fairness embodiedin the doctrine of Due Process, which must beafforded to all citizens of the Muscogee (Creek)Nation, do not disappear at the door when apolitical appointee’s nomination is being re-viewed by either a Committee, a Subcommittee,a Planning Session, or the full membership ofthe National Council. Oliver v. Muscogee (Creek)National Council, SC 06–04 (Muscogee (Creek)2006)

Each and every political appointee should beafforded an opportunity to relate and discuss hisor her qualifications for the position to whichhe or she has been nominated by the office ofthe Principal Chief-this is the opportunity to beheard. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

[A]ny such nominee should be given reason-able notice of his or her required appearance infront of any gathering of members of the Na-tional Council-whether a Committee, a Sub-committee, the Planning Session, or a regularlyscheduled meeting of the full National Council.A couple of hours notice-as occurred in theinstant case-is insufficient to serve as reasonablenotice. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

[W]orking hand in hand with the nomineesright to be heard is the duty of the NationalCouncil to provide the Citizens with an open

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and outward assurance that-regardless ofwhether the nomination was approved or reject-ed-the nomination was considered in as unbi-ased a fashion as possible, that the Council’sdecision comports with the best interests of thecitizens and of the Nation, and that its decisionwas not arbitrary or capricious. Oliver v. Musco-gee (Creek) National Council, SC 06–04 (Musco-gee (Creek) 2006)

[A] ‘‘majority approval’’ in its most basic in-terpretation means a simple majority vote of thequorum present as opposed to a super-majority.Oliver v. Muscogee (Creek) National Council, SC06–04 (Muscogee (Creek) 2006)

This Court hereby interprets the language ofthe Constitution to direct the National Council,at a regularly scheduled monthly meeting, toconsider and vote either in affirmation or disaf-firmation each and every Supreme Court Justiceappointee presented by the office of the Princi-pal Chief. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)

Neither the National Council Planning Ses-sion, the Business & Government Committee, orany other Committee or Sub-committee shouldbe deemed to speak for the National Council,whose voice must be the voice of the citizens.Such Committees may make recommendationsto the National Council; but it would be grant-ing far too great a power to such a small num-ber of representatives to allow such Committeesto make a final determination regarding nomi-nees and appointments from the office of thePrincipal Chief. Oliver v. Muscogee (Creek) Na-tional Council, SC 06–04 (Muscogee (Creek)2006)

[T]his Court holds that a Supreme Court judi-cial nominee from the office of the PrincipalChief must be brought to a vote of the fullNational Council at a regularly scheduledmonthly meeting and shall not be deemed ap-proved or rejected by Committee nor in Plan-ning Session. A vote of the constitutionally man-dated quorum necessary to conduct businessshall suffice as the full National Council, and nosuper-majority will be required. Oliver v. Musco-gee (Creek) National Council, SC 06–04 (Musco-gee (Creek) 2006)


This Court recognizes that some limitation onthe number of times a nominee is submittedmay be appropriate, but refuses to encroachupon the legislative function of the NationalCouncil which must author and pass such lawsinto effect. However, until such legislation is inplace, this Court notes that there is no limit onthe number of times a nominee may be resub-mitted. Oliver v. Muscogee (Creek) NationalCouncil, SC 06–04 (Muscogee (Creek) 2006)



Article III, Section 4 of the Constitution of theMuscogee (Creek) Nation, and wherein thephrase appears: ‘‘All Muscogee (Creek) Indiansby blood, who are less than one-fourth Musco-gee (Creek) Indian by blood, shall be consideredcitizens and shall have all rights of entitlementas members of the Muscogee (Creek) NationEXCEPT THE RIGHT TO HOLD OFFICE’’, isconstrued to be of a general nature and applica-tion, and, therefore, subordinate to Article IIIwhich is controlling. (emphasis in original).Bruner, d/b/a Chebon’s Indian Smoke Shop v.Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)




The power and authority of this Court will notbe decreased nor will this Court be diminishedby any other branch of the tribal government byits failure to perform its duties and obligationsunder the constitution of the Muscogee (Creek)Nation and this Court finds that the Justices ofthis Court should retain their position and con-tinue to perform the duties of Justice of this

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Supreme Court until their successors shall beduly qualified. Done in Conference, October 31,1986 (Muscogee (Creek) Nation (1986))

Constitution of Muscogee (Creek) Nation issilent as to procedure to be followed wherevacancy on tribal Supreme Court occurs beforea term of office expires. In re Term of Office, 2Okla. Trib. 385 (Musc. (Cr.) D.Ct. 1992).

Framers of Muscogee (Creek) Nation Consti-tution did not anticipate any extended vacancieson Tribe’s Supreme Court. In re Term of Office,2 Okla. Trib. 385 (Musc. (Cr.) D.Ct. 1992).

Appointment and approval of a Justice toMuscogee (Creek) Nation Supreme Court to avacancy which does not result from the expira-tion of another Justice’s term, and which occurs

after July 1 of any year, will result in the newly-appointed and approved Justice serving in officein excess of six years, and there is no require-ment in tribal Constitution for reconfirmationafter the partial year has expired. In re Term ofOffice, 2 Okla. Trib. 385 (Musc. (Cr.) D.Ct.1992).

Principal Chief of Muscogee (Creek) Nationhas responsibility to nominate, and NationalCouncil to approve, appointments to SupremeCourt of Muscogee (Creek) Nation; failure ofthose branches of government to agree on nomi-nees, however, does not constitute obstructionof justice. O.C.M.A. v. National Council, 1 Okla.Trib. 293 (Musc. (Cr.) D.Ct. 1989).

§ 3. [Appellate procedures]

The Supreme Court shall, with the approval of the Muscogee (Creek) Nation-al Council establish procedures to insure that the appellant receives dueprocess of law and prompt and speedy relief.

Cross References

Establishment of procedures, see Title 26, § 3–108.Rules of Appellate Procedure, see Title 27, App. 2.

Notes of DecisionsInterlocutory appeal 1Preservation of issues for appeal 4Right to appeal 3Standard of appellate review 2

1. Interlocutory appealCourt is aware of a limited range of interlocu-

tory appeals are recognized in federal courtsdespite the lack of statutory provisions authoriz-ing them. No such exceptions to the final ruleorder, however, have been articulated in ourcase law. Health Board v. Skaggs and HealthBoard v. Taylor, 5 Okla. Trib. 442 (Muscogee(Creek) 1991).


Courts inability to hear interlocutory appeal isbound by NCA 82–30 § 270 (B) unless the legis-lature chooses to change its limitations. HealthBoard v. Skaggs and Health Board v. Taylor, 5Okla. Trib. 442 (Muscogee (Creek) 1991).

Aggrieved party may apply to tribal SupremeCourt to assume original jurisdiction and grantappropriate relief where trial court judge failsto disqualify. Preferred Mgmt. Corp. v. NationalCouncil, 2 Okla. Trib. 37 (Muscogee (Creek)1990).

2. Standard of appellate review[T]he Court finds Petitioner’s Application is

not ripe for appellate review and that the Courtwill not exercise original jurisdiction in thiscase. The Court notes that this action wouldhave been more properly brought before theDistrict Court, where a Special Judge would beappointed to hear it. Muscogee (Creek) NationNational Council and Trepp v. Muscogee(Creek) Election Board, A.D. Ellis and Musco-gee (Creek) Constitutional Convention Commis-sion, SC 09–10 (Muscogee (Creek) 2009)



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The Supreme Court reviewed the record denovo and finds no evidence that the CitizenshipBoard acted arbitrarily and capriciously. Mus-cogee (Creek) Nation of Oklahoma v. Grahamand Johnson, SC 06–03 (Muscogee (Creek)2007)


Where an individual has failed to challengedirectly an administrative body’s license revoca-tion, but rather collaterally attacks the action ina later judicial injunctive proceeding againstthat individual, such subsequent judicial pro-ceeding involves no retrial de novo of the issuesresolved at the license-revocation hearing, butonly involves the limited questions of notice anddue process. Bruner v. Tax Commission, 1 Okla.Trib. 102 (Muscogee (Creek) 1987).


3. Right to appealNCA 82–30 does not provide Supreme Court

with the power to review non-final orders ex-cept for limited circumstances. Brown and Wil-liamson Tobacco Corp. v. District Court, 5 Okla.Trib. 447 (Muscogee (Creek) 1998).





Petitioners, just as any other litigant in theMuscogee (Creek) Courts still has available theright to appeal after a final order is issued bythe District Court. Brown and Williamson To-

bacco Corp. v. District Court, 5 Okla. Trib. 447(Muscogee (Creek) 1998).


Petitioners have same remedies of appealavailable to them as all parties in our Courtsystem. Brown and Williamson Tobacco Corp. v.District Court, 5 Okla. Trib. 447 (Muscogee(Creek) 1998).


Where the trial court in an action for anaccounting and for determination of the interestin real and personal property ordered an ac-counting, the defendants could not, prior tofinal judgment, appeal from the order. Kelly v.Wilde, 5 Okla. Trib. 209 (Muscogee (Creek)1996).




Courts inability to hear interlocutory appeal isbound by NC 82–30 § 270 (B) unless the legisla-ture chooses to change its limitations. HealthBoard v. Skaggs and Health Board v. Taylor, 5Okla. Trib. 442 (Muscogee (Creek) 1991).


National Farmers and Iowa Mutual, [NationalFarmers Union Ins. Cos. v. Crow Tribe, 471 U.S.

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845 (1985), and Iowa Mutual Insurance Co. v.LaPlante, 480 U.S. 9 (1987)] we conclude, arenot at odds with, and do not displace, Montana.Both decisions describe an exhaustion rule al-lowing tribal courts initially to respond to aninvocation of their jurisdiction; neither estab-lishes tribal court adjudicatory authority, evenover the lawsuits involved in those cases. Stratev. A–1 Contractors, 520 U.S. 438 (1997)



Recognizing that our precedent has been vari-ously interpreted, we reiterate that NationalFarmers and Iowa Mutual [National FarmersUnion Ins. Cos. v. Crow Tribe, 471 U.S. 845(1985), and Iowa Mutual Insurance Co. v. La-Plante, 480 U.S. 9 (1987)] enunciate only anexhaustion requirement, a ‘‘prudential rule,’’,based on comity. These decisions do not expandor stand apart from Montana’s instruction on‘‘the inherent sovereign powers of an Indiantribe.’’ [Montana v. United States, 450 U.S. 544(1981)] (internal citations omitted) Strate v. A–1Contractors, 520 U.S. 438 (1997)



We distinguished Santa Clara Pueblo, [SantaClara Pueblo v. Martinez, 436 U.S. 49, 58(1978)] noting that the Supreme Court in thatcase emphasized the availability of the tribalcourts and the intra-tribal nature of the issues,

whereas in Dry Creek [Dry Creek Lodge, Inc. v.Arapahoe & Shoshone Tribes, 623 F.2d 682(10th Cir. 1980)] the plaintiffs were non-Indianswho had been denied any remedy in a tribalforum. Miner Electric and Russell Miner v. Mus-cogee (Creek) Nation, 505 F.3d 1007 (10th Cir.2007)


The Dry Creek rule has ‘‘minimal precedentialvalue’’; in fact, this court has never held it to beapplicable other than in the Dry Creek [DryCreek Lodge, Inc. v. Arapahoe & ShoshoneTribes, 623 F.2d 682 (10th Cir. 1980)] decisionitself. Miner Electric and Russell Miner v. Mus-cogee (Creek) Nation, 505 F.3d 1007 (10th Cir.2007)


Moreover, ‘‘[a] tribal court’s dismissal of asuit as barred by sovereign immunity is simplynot the same thing as having no tribal forum tohear the dispute.’’ [quoting Walton v. TesuquePueblo, 443 F.3d 1274 (10th Cir.)] (reversingdistrict court’s denial of motion to dismisswhere tribal defendants did not waive immunityand no statute authorized the suit), (internalcites omitted ) Miner Electric and Russell Minerv. Muscogee (Creek) Nation, 505 F.3d 1007 (10thCir. 2007)


Dry Creek [Dry Creek Lodge, Inc. v. Arapahoe &Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980)]

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has come to stand for the proposition that feder-al courts have jurisdiction to hear a suit againstan Indian tribe under 25 U.S.C. § 1302, not-withstanding Santa Clara Pueblo, [Santa ClaraPueblo v. Martinez, 436 U.S. 49 (1978)] whenthree circumstances are present: (1) the disputeinvolves a non-Indian; (2) the dispute does notinvolve internal tribal affairs; and (3) there is notribal forum to hear the dispute. Our jurispru-dence in this field is circumspect, and we haveemphasized the need to construe the Dry Creekexception narrowly in order to prevent a con-flict with Santa Clara.(internal cites omitted)Walton v. Pueblo et al., 443 F.3d 1274 (10th Cir.2006)


4. Preservation of issues for appealIn the case at bar, it was necessary to show

only that notice and due process were affordedAppellant at said revocation hearing, and theCourt may take judicial notice of the laws andofficial records of the Muscogee (Creek) Nation.Bruner, d/b/a Chebon’s Indian Smoke Shop v.

Muscogee (Creek) Nation, ex rel. Creek NationTax Commission, SC 86–03 (Muscogee (Creek)1987)

Where an individual has failed to challengedirectly an administrative body’s license revoca-tion, but rather collaterally attacks the action ina later judicial injunctive proceeding againstthat individual, such subsequent judicial pro-ceeding involves no retrial de novo of the issuesresolved at the license-revocation hearing, butonly involves the limited questions of notice anddue process. Bruner v. Tax Commission, 1 Okla.Trib. 102 (Muscogee (Creek) 1987).

Tribal Supreme Court has authority to modifydistrict court’s order in a manner more favor-able to appellee, where underlying facts warrantmodification to correspond to relief petitionedand prayed for by appellee. Bruner v. Tax Com-mission, 1 Okla. Trib. 102 (Muscogee (Creek)1987).

Tribal Supreme Court has inherent power todirect that only duly licensed and admitted topractice attorneys may represent litigants incourts of the Muscogee (Creek) Nation. Beaverv. National Council, 1 Okla. Trib. 57 (Muscogee(Creek) 1986).

Courts may declare a particular candidate tobe the successful candidate in a particular elec-tion. Beaver v. National Council, 1 Okla. Trib. 57(Muscogee (Creek) 1986).

§ 4. [Chief Justice; sessions]

The Supreme Court shall be presided over by a Supreme Court Justicechosen from their number and shall be in regular, quarterly-scheduled session,coinciding with that of the fiscal year.

Cross References

Chief Justice as administrative officer for Supreme Court, see Title 26, § 1–101.

§ 5. [Decisions]

The decision of the Supreme Court shall be in writing and shall be final.

Cross References

Decision of the Supreme Court, see Title 27, App. 2, Rule 23.

Notes of DecisionsForeign judgments 1

1. Foreign judgmentsCourt recognizes the concept of comity

through previous order recognizing judicial pro-ceedings of other sovereigns in the Muscogee(Creek) Nations Full Faith and Credit. Grothausv. Halliburton Oil Producing Co., 4 Okla. Trib319 (Muscogee (Creek) 1995).

Courts of Muscogee (Creek) Nation will grantfull faith and credit to all written judgments,

decrees, or orders of federal and state courts,and the courts of other tribes, provided thatcourt whose judgment is sought to be enforcedgrants reciprocity to judgments of courts ofMuscogee (Creek) Nation, pursuant to proce-dures specified by Order of that Nation’s Su-preme Court. In re Full Faith and Credit, 3Okla. Trib. 211 (Muscogee (Creek) 1993).

Foreign judgments from courts not grantingreciprocity to courts of Muscogee (Creek) Na-tion, or from courts outside the United States,may be enforced in Nation’s courts as otherwise

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JUDICIAL BRANCH Art. VII, § 6

provided by tribal law. In re Full Faith andCredit, 3 Okla. Trib. 211 (Muscogee (Creek)1993).

§ 6. [Litigation between Tribal Officers]

All litigation between tribal officers shall originate in the District Court of theMuscogee (Creek) Nation, with the right of appeal to the Supreme Court. Allquestions of fact shall be determined by jury trial.

[Added by 2009, [A114].]

Historical and Statutory Notes2009 Enactment

The 2009 enactment was passed by referen-dum on Nov. 7, 2009, by a vote of 1,516 to 844.

Documents

ARTICLE VII [JUDICIAL BRANCH]