Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 1 of 32
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(1) THLOPTHLOCCO TRIBAL TOWN, ) a federally-recognized Indian Tribe, ) ) Plaintiff ) ) -vs- ) No. 09-CV-527-TCK-FHM ) (2) GREGORY R. STIDHAM, Judge of ) the District Court of the Muscogee ) (Creek) Nation; and ) (3) HOUSTON SHIRLEY, Vice Chief ) Justice of the Muscogee (Creek) Nation ) Supreme Court, all Defendants joined ) individually and in their official capacity ) for purposes of declaratory relief as may ) be necessary, and prospective Injunctive ) Relief only, )
Defendants.
COMPLAINT FOR INJUNCTIVE RELIEF
(Federal Question involving Sovereignty Immunity from Suit by Thlopthlocco Tribal Town under 25 U.S.C. §503 (Oklahoma Indian Welfare Act) and/or Determining the Extent of Jurisdiction of the Muscogee (Creek) Nation Tribal Courts over the sovereign activities of Thlopthlocco Tribal Town)
I. -Preliminary Statement-
1. THLOPTHLOCCO TRIBAL TOWN (“Thlopthlocco” or “TTT”), a federally
recognized Indian Tribe and Plaintiff in the above captioned matter, comes before the Court and files
this Complaint for Preliminary and Permanent Injunctive Relief, asking this Court to enjoin the
Defendants judicial officers of the Tribal Courts of the Muscogee (Creek) Nation (MCN),
individually or in their official capacity as may be necessary, their officers, agents, employees, and
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all persons acting in active concert or participation with them (including any associate justices or
judges of the MCN judiciary), from actions involving an exercise of jurisdiction by the MCN
judiciary over sovereign internal tribal matters of Thlopthlocco.
2. Thlopthlocco, an independent and autonomous Tribe under federal law, sought
declaratory and injunctive relief under a limited consent and waiver of sovereign immunity in the
MCN courts to prevent disruption of the Thlopthlocco government by various individuals seeking
a takeover of government. The limited consent included Thlopthlocco’s claims only and sought only
declaratory and injunctive relief against various individuals who sought control of Thlopthlocco
property and bank accounts. In submitting the limited consent to the MCN courts, Thlopthlocco
specifically excluded any jurisdiction as a matter of subject jurisdiction to decide any election
dispute, an internal sovereign process.
3. During the course of court proceedings, the MCN Supreme Court has asserted that
it has jurisdiction to determine various matters outside the boundaries of the limited consent to
jurisdiction (including cross-claims) as a matter of the supremacy of MCN law over federal law and
in derogation of Thlopthlocco’s independent sovereign status as a federally recognized Indian Tribe.
The issues over which the MCN courts have improperly assumed jurisdiction include an alleged
dispute by the individual defendants in the Tribal Court over the 2007 election, even though those
persons determined to be the successful candidates of that election took their oaths of office, and
assumed de facto status as members of the Business Committee and governed the Tribe since then.
4. In addition, the MCN courts have asserted jurisdiction over the contractual
arrangements of Thlopthlocco with its previous attorneys in the Tribal court, forbidding
Thlopthlocco from paying its attorneys for services performed and ordering those attorneys to return
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all funds received to the Thlopthlocco treasury even though Thlopthlocco never consented to
litigation of its contractual arrangements in the MCN courts nor did Thlopthlocco grant subject
matter jurisdiction to litigate any contract in the MCN Tribal Courts.
5. Related portions of this dispute are already pending in this Court in Crowe &
Dunlevy, P.C. v. Stidham, No. CIV-09-95-TCK, USDC ND Okla. This Court has issued a
preliminary injunction restraining Defendant Stidham from enforcement of various orders regarding
the return of payment by Crowe & Dunlevy (hereafter “Crowe”) to Thlopthlocco. (No. CIV-09-95-
TCK, Opinion and Order, Doc. 030, 4/24/2009)1
6. Finally, because of the MCN tribal Court’s refusal to honor the sovereign status of
Thlopthlocco in its exercise of jurisdiction, Thlopthlocco has since withdrawn the limited consent
to jurisdiction thereby revoking all subject matter jurisdiction in the MCN courts and sought
dismissal of all claims including the cross-claims of Defendants. Stidham has denied Thlopthlocco’s
conditional motion to dismiss and continues to exercise jurisdiction over the original action and
cross-claims including the election dispute.
7. The trial of the claims of Plaintiff Thlopthlocco and the individual Defendants against
Thlopthlocco’s Business Committee are now set for jury trial on October 5, 2009, thereby making
urgent this Court’s consideration of a preliminary inunction restraining the illegal exercise of
adjudicative jurisdiction by the MCN judiciary.
1 At page 1 of his 4/24/2009 Order, Judge Kern described Thlopthlocco as follows, “The Tribe has been recognized by the United States as a separate and distinct sovereign Indian band, and the Tribe has a Constitution and By-Laws. The Tribe has a historical relationship with the Muscogee (Creek) Nation, and many of its members hold dual citizenship in both tribes. Pursuant to the Tribe’s Constitution, the governing body of the Tribe is the Business Committee. The Business Committee is comprised of ten individuals and has the power to transact business on behalf of the Tribe. (emphasis added)
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8. Thlopthlocco appealed Stidham’s denial of the Conditional Motion on an
interlocutory basis filed August 3, 2009 with the MCN Supreme Court. The MCN Rules of
Appellate Procedure provide for an initial expedited review of interlocutory appeals by the Chief
Justice of the MCN. Despite rules which indicate that the Court will act initially on such appeals
within 5 days, Defendant Houston Shirley, MCN Acting Chief Justice, has failed or refused to act
on Thlopthlocco’s appeal.
9. Even though the MCN Supreme Court has failed to act on the more recent
interlocutory appeal of the Conditional Motion to Dismiss, Stidham’s assertion of continued
jurisdiction over Thlopthlocco in denying the motion is consistent with the previous decisions of the
MCN Supreme Court complained of herein at the very least with regard to the disregard of the
limited consent to jurisdiction and have thus been exhausted. In other words, even if the MCN
Supreme Court fails to act on the presently pending Interlocutory appeal of jurisdiction involving
the Conditional Motion to Dismiss of Thlopthlocco, the question of MCN’s improper assumption
of jurisdiction over Thlopthlocco has been exhausted under Tribal remedies and is ripe for
consideration by this Court and any further delay in waiting for a decision of the MCN courts would
be futile and subject to a delay which would cause irreparable harm to Thlopthlocco.
10. There is a need for temporary and permanent declaratory and prospective injunctive
relief prohibiting the exercise of jurisdiction against the sovereign interests of Thlopthlocco which
exceed both the limited jurisdiction grant and Thlopthlocco’s withdrawal of its limited consent to
jurisdiction of the MCN courts.
11. The claims of the MCN Courts that its exercise of jurisdiction under MCN law is
supreme over Thlopthlocco’s federally recognized sovereignty established under 25 U.S.C. §503
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of the Oklahoma Indian Welfare Act (OIWA) is a ‘straight-forward” violation of federal law and
inconsistent with Thlopthlocco’s historical legacy as an independent and autonomous Tribal Town
under the old Creek Confederacy of tribal towns.
12. Preliminary and permanent injunctive relief is even more urgent in this Court because
unless it is restrained by this Court, the MCN District Court has set all matters for jury trial
beginning on October 5, 2009 including the prohibited issue of the election dispute and Defendants’
cross-claims.
II. -Jurisdiction and Venue-
13. Jurisdiction is conferred by Title 28 U.S.C. §1331 which provides for original
jurisdiction of this Court in suits that arise under the Constitution, laws, or treaties of the United
States.
14. Jurisdiction is further conferred by Title 28 U.S.C. §1362 which provides for original
jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly
recognized by the Secretary of the Interior, where the matter in controversy arises under the
Constitution, laws, or treaties of the United States.
15. The specific issue raised in this action is the sovereign immunity of Thlopthlocco
Tribal Town, a federally recognized Indian Tribe, under its reorganization pursuant to Title 25
U.S.C. §503,2 the Oklahoma Indian Welfare Act, and the supremacy of federal law over any law,
decision, or rule of an Indian tribe under the Indian Commerce Clause of the United States
2 The Thlopthlocco Constitution (Ex. A, p. 2), Art. I, Section 1 refers to organization under both the Oklahoma Indian Welfare Act also known as the Thomas-Rogers Act, 49 Stat. §1967 (Approved June 26, 1936) and that part of the Indian Reorganization Act, 48 Stat. 984 (Approved June 18, 1934) which is made applicable to Oklahoma Indians.
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Constitution (Article 1, section 8); the Treaty Clause, Article II, section 2, clause 2; or, as may be
applicable, the Supremacy Clause of the United States Constitution (Article VI, paragraph 2).
Thlopthlocco’s federal recognition of sovereignty is supreme and preempts any claim of adjudicative
jurisdiction by the MCN judiciary over the sovereign activities of Thlopthlocco. The question of
the extent of a tribal court’s jurisdiction is a question of federal law. See Nat'l Farmers Union Ins.
Co. v. Crow Tribe of Indians, 471 U.S. 845, 851-53, 857, 105 S.Ct. 2447 (1985)
16. VENUE. Defendants are individuals who exercise judicial authority of the
Muscogee (Creek) Nation judiciary, yet act ultra vires with respect to their exercise of jurisdiction
over Thlopthlocco as complained herein. The Muscogee (Creek) Nation encompasses lands in
Creek, Hughes, Mayes, McIntosh, Muskogee, Okfuskee, Okmulgee, Rogers, Seminole, Tulsa, and
Wagoner Counties. Defendant Shirley can be found in the Northern District, has an office located
in the Northern District, and receives mail in the Northern District at an address listed with the
Oklahoma Bar Association. The contract of employment between Thlopthlocco and Crowe which
is the subject of the earlier litigation between Crowe and Stidham was executed in Tulsa County by
members of the Thlopthlocco Business Committee. Venue is proper in this judicial district pursuant
to 28 U.S.C. §1391(b) and (c). To the best information and belief of the Plaintiff, this Court has
jurisdiction over the subject matter of this action and can acquire in personam jurisdiction over all
defendants named herein.
III. -Plaintiff-
17. Factual allegations contained in all the paragraphs previously recited herein are
incorporated by reference as if set out in full.
18. Thlopthlocco Tribal Town is a federally recognized Indian Tribe headquartered near
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the Clearview Exit on I-40 near Okemah. Although it has an extended history as an autonomous
Tribal Town or “Talwa,” Thlopthlocco reorganized under a written Constitution which was ratified
in 1939 pursuant to Section 3 of the Oklahoma Indian Welfare Act (25 U.S.C. §503 (1936)) and
recognized by the Secretary of the Interior (Interior).
19. Thlopthlocco originated in Georgia and Alabama. It is commonly believed that
sometime before 1832 Thlopthlocco split off from a large tribal town whose name is variously
represented as Hoithle Waule, Clewalla, and Thlewarthle. Thlopthlocco Town was removed to
Indian Territory with the rest of the Muscogee Creeks in 1835.3
20. At the time of consideration of Federal recognition by the Bureau of Indian Affairs
(BIA) a Solicitor’s Opinion was authored by Frederic Kirgis in 1937. (Ex. B) The opinion
acknowledged that tribal towns were self-governing (Ex. B, p. 98), were originally individually
recognized by the Federal Government as governing units in the Creek Confederacy, declared war
and peace independently of each other, and were centralized only by the requirements of the Federal
government to avoid dealing with multiple tribes. These efforts were opposed by the Indians. (Ex.
B, p. 98-99) Kirgis concluded that while “. . . the functions of the town organizations have become
limited because of the history of the Five Civilized Tribes in Oklahoma, these towns retain sufficient
characteristics of a band to identify them as Indian bands. (Ex. B, p. 99) The Muscogee Nation
Constitution recognized the existence of tribal towns but did not define them (Ex. B, p. 101):
In other words, the towns are recognized as having an existence not derived from the constitution of the Muskogee Nation but in fact antedating and continuing alongside the constitution . . . One of the towns specifically recognized by an ordinance of
3 See
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October 28, 1890, is Thlopthlocco town, one of the two now applying for recognition.
Kirgis continued that “the Creek towns can lay a substantial claim to the right to be considered as
recognized bands within the meaning of section 3 . . . ” although treated as one group by Congress,
“It is not clear that Congress intended to deny the existence of the Creek towns as effective
organizations.” id.
21. Kirgis further indicated that, “. . . if the towns are organized under Section 3 . . . the
Federal Government will be in a position in which it will, in many instances, be forced to deal with
those town organizations directly and as entities independent of the Creek Nation and of each
other.” (Ex. B, p. 102)(emphasis added) In conclusion, Kirgis stated, “With respect to the two towns
which have already submitted constitutions, it is believed that a sufficient fact basis has been
established to permit organization.” (Ex. B, p. 103)
22. Thlopthlocco’s reorganization in 1938 into a federally recognized Indian Tribe was
separate and independent from the eventual reorganization of the historic Muscogee (Creek)
Confederation (or Nation as it is now know) some 40 years later in 1979. Some, but not all,
members of Thlopthlocco are considered to have dual membership in both Thlopthlocco and MCN
although dual tribal membership is prohibited by the MCN Constitution.
23. There is no formal or explicit supremacy clause or other acquiescence of authority
by Thlopthlocco to MCN in the Thlopthlocco Constitution as would be comparable with the role
of an individual state of the United States with the Federal government under the Constitution of the
United States.
24. As a federally recognized Indian tribe, Thlopthlocco enjoys certain immunities from
suit as a sovereign.
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25. The Thlopthlocco Constitution provides for a governing body known as the “Business
Committee.” The Business Committee consists of five elected town officers: A “Mekko” or “Town
King”; Two “Warriors”; a Secretary; and a Treasurer. The five elected officials then select five
members of the “advisory council.” The governing body consists of the town officers and members
of the advisory council. (Ex. A, TTT Const., Art. V, Sections 1 - 4) The Business Committee has
power to transact business and otherwise speak or act on behalf of the town on all matters in which
the town is empowered to act nor or in the future.” (Ex. A, TTT Const., Art. V, Sections 6)
26. Thlopthlocco has no constitutional judiciary under its Constitution, a historical
artifact of a failure of the Bureau of Indian Affairs (BIA) to recognize that the OIWA allowed
reinstatement of tribal judiciary with reorganization. Previously existing Tribal governments and
courts were originally abolished by Congress with the Federal Curtis Act of 1898, c. 517, 30 Stat.
495, which brought the Five Civilized Tribes of Oklahoma under the1887 General Allotment Act
from which they were previously exempt. The abolishment of existing Tribal governments was part
of a plan of assimilation of the Indian population during the time of the Dawes Commission.
27. Litigation with the BIA eventually established the rights of Indian tribes reorganizing
under the OIWA to re-establish tribal courts. See Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439
(DC Cir., 1988) Thlopthlocco has not yet established a tribal judiciary, but the Business Committee
is in the process of adopting a Judicial Code. Constitutional revision to include a judiciary is also
under consideration.
28. There are also no formal separation of powers inherent in the Thlopthlocco
Constitution. Thlopthlocco does have a constitutional grievance procedure under Article VI
whereby officers and members of the Business Committee are subject to complaints from
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constituents which are eventually considered and which may result in the removal from office of the
individual officer against whom the grievance was filed. (Ex. A, TTT Const., Art. VI)
29. There are members of the Thlopthlocco Business Committee, who are named as
Cross-Defendants in a “Specially Appearing Defendants’ Cross-Claim” filed October 11, 2007 in
Thlopthlocco v. Anderson, No. CV-2007-39, MCN District Court. These persons, whether sued in
their individual or official capacity in that Tribal Court action are identified as George Scott, Ron
Barnett, Vernon Yarholar, Brent Brown, Ryan Morrow, Janna Dickey, Tracey Hill, Celeste Johnson,
Barbara Canard-Welborn. Tanya Walker is also a member of the Thlopthlocco Business Committee,
but is not named as a Cross-Defendant for purpose of the Anderson faction’s challenge to the
January 2007 Election results. Walker is a member of the Thlopthlocco Tribe, but is not a member
of the Muscogee (Creek) Nation. To the extent that this action seeks relief for these individuals in
their official capacity as members of the Thlopthlocco Business Committee, such official capacity
is the same as relief sought on behalf of the Thlopthlocco Tribe itself. To the extent that suit is
maintained against these persons individually, such claims are in excess of Thlopthlocco’s limited
jurisdictional grant which allowed only actions by the Plaintiff which will be described further
herein.
30. Thlopthlocco reserves all rights, claims, and protections of its Tribal sovereignty,
including immunity from any suit arising under this action. See Oklahoma Tax Com'n v. Citizen
Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 509, 111 S.Ct. 905 (1991) (“. . . a tribe
does not waive its sovereign immunity from actions that could not otherwise be brought against it
merely because those actions were pleaded in a counterclaim to an action filed by the tribe.”) See
also 498 U.S. at 509 (“Possessing ... immunity from direct suit, we are of the opinion [the Indian
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nations] possess a similar immunity from cross-suits.”)
IV. -Defendants-
31. Factual allegations contained in all the paragraphs previously recited herein are
incorporated by reference as if set out in full.
32. Defendant Gregory R. Stidham is an acting special district judge for the Muscogee
(Creek) Nation District Court. Stidham has been exercising jurisdiction over a certain action entitled
Thlopthlocco Tribal Town v. Anderson, et al., No. CV-2007-39 (hereafter Thlopthlocco v.
Anderson), Muscogee (Creek) Nation District Court.
33. Defendant Houston Shirley is the Vice Chief Justice of the Muscogee (Creek) Nation
Supreme Court, exercising authority as Chief Justice in the absence of the Chief Justice. Defendant
Shirley, along with his fellow Justices of the MCN Supreme Court have exercised jurisdiction over
the Thlopthlocco v. Anderson in several actions on appeal in the MCN Supreme Court. This
includes: Thlopthlocco v. Moore v. Anderson, et al., No. SC-2007-01 (Appeal on Jurisdiction);
Thlopthlocco v. Anderson, No. SC-2008-01 (Appeal of Attorney Fees); and most recently Plaintiff
filed an Interlocutory Appeal on Jurisdiction involving Plaintiff’s Conditional Motion to Dismiss,
No. SC-2009-07.
34. Defendant Shirley is a licensed attorney and has an office located in Bixby,
Oklahoma and receives mail and other information from the Oklahoma Bar Association from an
address in Glennpool, Oklahoma.
35. The Muscogee (Creek) Nation (MCN) is also a federally recognized Indian Tribe by
virtue of its adoption of a written Constitution in 1979 and federal recognition under the OIWA. As
previously provided herein, the MCN originally arose as a group of Creek Tribal Towns which
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became more formal as a matter of convenience for the United States Government in dealing with
the several Creek Tribal Towns. There is a history of a loose confederation of tribal towns from
early in Creek history to discuss and plan matters such as mutual defense. Even so, the Tribal
Towns were autonomous and free to pursue their own choices and were not bound to the
considerations of the meeting groups, the House of Kings or the House of Warriors. Tribal towns
were traditionally autonomous.
36. The MCN does have a judiciary as a result of litigation with the BIA from the time
after its reorganization as a Tribe in 1979. See Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439
(DC Cir., 1988)
37. This action is brought against Defendants Stidham and Houston either individually,
or in their official capacities as officers of the MCN Judiciary solely for purposes of declaratory
relief as may be necessary to bind nonparties who may be involved in the decision process or the
enforcement of orders of the MCN judiciary. Prospective injunctive relief is sought to stop the
exercise of adjudicatory authority by MCN courts over Thlopthlocco.
38. This action is brought pursuant to Ex parte Young, 209 U.S. 123 (1908) to stop an
ongoing violation of federal law inherent in the violation of the sovereign rights of Thlopthlocco.
39. Upon information and belief, Denette Mouser, Leah Harjo-Ware and Amos McNac
are identified as additional members of the MCN Supreme Court, who can, in the enforcement of
MCN Supreme Court orders, be considered to be acting in concert and joint participation with
Stidham and Shirley as consistent with Fed.Rul.Civ.Pro. 65 for purposes of injunctive relief.
V. STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED
40. 25 U.S.C.§503. Oklahoma Indian Welfare Act (Section 3) provides as follows:
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Any recognized tribe or band of Indians residing in Oklahoma shall have the right to organize for its common welfare and to adopt a constitution and bylaws, under such rules and regulations as the Secretary of the Interior may prescribe. The Secretary of the Interior may issue to any such organized group a charter of incorporation, which shall become operative when ratified by a majority vote of the adult members of the organization voting: Provided, however, That such election shall be void unless the total vote cast be at least 30 per centum of those entitled to vote. Such charter may convey to the incorporated group, in addition to any powers which may properly be vested in a body corporate under the laws of the State of Oklahoma, the right to participate in the revolving credit fund and to enjoy any other rights or privileges secured to an organized Indian tribe under the Act of June 18, 1934 (48 Stat. 984) [25 U.S.C.A. § 461 et seq.]: Provided, That the corporate funds of any such chartered group may be deposited in any national bank within the State of Oklahoma or otherwise invested, utilized, or disbursed in accordance with the terms of the corporate charter.
41. United States Constitution, Article I, Section 8, Clause 3, commonly known as the
Indian Commerce Clause, is an enumerated power of the United States Government stated as
follows:
[The Congress shall have power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
42. United States Constitution, Article VI, paragraph 2, commonly known as the
Supremacy Clause, is an enumerated power of the United States Government stated as follow:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.
IV. FACTS COMMON TO ALL CLAIMS
A. BACKGROUND INFORMATION
43. All the factual allegations contained in the preceding paragraphs are incorporated
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herein as if they were set out in full.
44. As a part of a regular sovereign process, Thlopthlocco conducted Tribal elections on
January 27, 2007. Thlopthlocco’s Constitution provides for the election of a Mekko (“Town King”),
two warriors, a secretary, and a treasurer. These elected officers then select five members of an
Advisory Committee to serve with them on the Business Committee. (See Ex. A, p. 2)
45. Nathan Anderson was elected Mekko. Vernon Yarholar and Ryan Morrow were
elected Warriors. Celesta Johnson was elected Secretary. Ron Barnett was elected Treasurer.
46. The five elected officials later selected five advisors: George Scott, Brent Brown,
Janna Dickey, Tracey Hill, and Barbara Canard-Welborn. The Business Committee members all
took the oath of office on February 10, 2007 and then governed as the Business Committee for
Thlopthlocco until June 5, 2007. Anderson, the four other elected officers and the five selected
members of group of Advisors, became the de jure, or at the very least, the de facto Business
Committee of the Tribe. See Ryan v. Tinsley, 316 F.2d 430 (10th Cir., 1963) (legislators elected to
de jure offices even with improprieties are still de facto members whose acts were as valid as de jure
officers)
47. There is only one way to remove Business Committee members and that is by
Grievance Procedure under Article VI of the Thlopthlocco Constitution. (Ex. A)
48. This apparently was not the slate of officers Anderson wanted. On June 5, 2007, at
a regularly scheduled Business Committee meeting, Anderson declared that he was the only lawfully
elected officer of the Tribe and that all other seats were vacant. Using a Tribal Constitutional
provision (Ex. A, Art. V, Section 6) which allows “vacancies” to be filled by the remaining officers,
Anderson then claimed that he would begin selection of a group of members of a new ad hoc
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Business Committee.
49. Following this attempted coup d'état,4 Anderson and his cronies set about trying to
take control over Thlopthlocco assets and bank accounts. The original Business then met (without
Anderson) and authorized litigation in the MCN courts for the limited purpose of securing the
continued control and authority of the original Business Committee over Thlopthlocco business.
The Business Committee authorized a limited consent to jurisdiction of the MCN courts, but
specifically withheld authority to litigate any election dispute.5 (Ex. C, Resolution of June 7, 2007)
50. As summarized by Judge Kern, the Waiver outlined the basis of the dispute with
Anderson and then stated:
[T]he Thlopthlocco Tribal Business Committee does hereby waive its immunity on a limited basis only for the purposes of adjudicating this dispute only, only claims brought by the Plaintiff, Thlopthlocco Tribal Town, and only for injunctive and declaratory relief. This waiver of immunity shall not include election disputes.
No. CIV-09-95-TCK, Opinion and Order, Doc. 030, 4/24/2009, p. 2
51. The MCN district court issued a temporary restraining order against Anderson and
his group, but inexplicably dissolved the order after hearing on June 20, 2007.
52. The original Business Committee then sought an interlocutory appeal. The MCN
Supreme Court stayed dissolution of the District Court’s injunction, held a hearing and issued a
minute order on June 29, 2009 ruling that the MCN Court’s did have jurisdiction over the cause.
(Ex. D)
4 Judge Kern described Anderson’s actions in his attempted takeover of the Thlopthlocco government as a coup d'état and Plaintiff will do so likewise. (No. CIV-09-95-TCK, Opinion and Order, Doc. 030, 4/24/2009), p. 2)
5 Judge Kern characterized the action in the MCN court as brought under a “narrow waiver of sovereign immunity.” (No. CIV-09-95-TCK, Opinion and Order, Doc. 030, 4/24/2009), p. 2)
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53. The Court later issued a clarifying ruling on October 26, 2009. (Ex. E) The Order
made no reference to Thlopthlocco sovereignty or the sovereignty waiver, and although it identified
a previous decision of the MCN District Court which referenced Thlopthlocco sovereignty6 the
MCN Supreme Court conditioned its determination of jurisdiction based upon Thlopthlocco’s
previous status as a Creek tribal town and that Thlopthlocco members were members of the MCN
which the Court identified as a “crippled confederacy.” Claiming that Thlopthlocco reorganized as
a town of Creek Indians, the Court held these reasons were a sufficient basis for jurisdiction by the
courts over Thlopthlocco. Concluding that:
The relationship between Thlopthlocco and the federal government is different from the relationship between Thlopthlocco and the Muscogee (Creek) Nation. Under federal law, Thlopthlocco is a reorganized Indian tribe; under tribal law, Thlopthlocco is a Muscogee (Creek) tribal town. . . . The Tribal Town Constitution affects neither the status of the tribal town members as citizens of the Muscogee (Creek) Nation nor the relationship of the Tribal Town to the Muscogee Nation which remains analogous to a city/state government or state/federal government relationship.
The member of Thlopthlocco Tribal Town, as citizens of the Muscogee Nation, have requested relief in the courts of the Muscogee (Creek) Nation. Neither the Town nor its members will be abandoned by the Nation’s Courts. (emphasis added)
Ex E. Order, p. 4-5.
54. Respectfully, there is no analogous relationship between Thlopthlocco and MCN as
would be consistent with city/state or state/federal government. Given the dearth of any reference
to tribal towns identified by Kirgis and their historical autonomy, the lack of any language of
supremacy of MCN over Thlopthlocco in either the Thlopthlocco Constitution or the MCN
6 See Thlopthlocco Tribal Town v. Tomah, et al., 8 Okla. Trib. 451 (Must. (Cr.), D.Ct., 2004) (Tomah I) and Thlopthlocco Tribal Town v. Tomah, et al., 8 Okla. Trib. 576 (Must. (Cr.), D.Ct., 2004) (Tomah II)
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Constitution, this ruling of the MCN Supreme Court posited MCN law, yet unidentified, supreme
to federal law and rights explicit in Thlopthlocco’s federal recognition despite Thlopthlocco’s
separate sovereignty, historical independence as an autonomous tribal town, or reorganization under
the Federal OIWA more than 40 years before the Muscogee (Creek) Confederacy ever reconstituted
as the Muscogee (Creek) Nation.
55. A determination that the MCN judiciary may exercise jurisdiction over Thlopthlocco
based upon the supremacy of MCN law is a violation of Thlopthlocco sovereignty as granted under
its Constitution and federal recognition as a sovereign Indian Tribe.
56. The MCN decision is also inconsistent with the historical autonomy of the tribal
towns and representation by tribal town under the former MC Confederacy. Under the MCN
Constitution, representation is now allocated by counties rather than by Tribal towns as was the case
with the old confederacy, thus Thlopthlocco, has no real place in the new “confederation” because
it has no representation as a separate Tribal Town.
57. The decision of the MCN Supreme Court explicitly discarded the authority of
Thlopthlocco’s federally recognized Constitution and has reduced Thlopthlocco’s status from a
federally recognized Indian Tribe to that of a social club in the MCN.
58. A second issue regarding jurisdiction later arose. In their answer, Anderson’s faction
filed various cross-claims against Thlopthlocco and sought to join the original Business Committee
members challenging the election results although Anderson admitted at the MCN District Court
hearing on a temporary restraining order on June 21, 2007 that Vernon Yarholar and Ryan Morrow
were elected warriors, Ron Barnett was elected Treasurer, and Celesta Johnson was elected
Secretary. (Ex. N, p. 24, 25, 27, Transcript of Testimony of Nathan Anderson (Excerpt), Hearing
17 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 18 of 32
on Temporary Restraining Order, June 21, 2007) Anderson further admitted that he, along with
these four officers, selected the advisors7 and they each were sworn in to their positions as members
of the Business Committee. (Ex. N, p. 24 - 27) Anderson testified from and after the assumption of
office, he participated in governance activities. Meetings were held, resolutions were proposed and
passed, and the Business Committee exercised its governmental responsibilities under the
Constitution. (Ex. N, p. 26) Anderson further testified that none of the Business Committee
members resigned nor did he file any grievance against the other nine members of the Committee
even though he understood that was the only procedure to remove someone from the Business
Committee. (Ex. N, p. 26 - 29, 44 - 46) Anderson admitted that despite his objections, “They were
the duly elected, serving, governmental body of the Thlopthlocco Tribe.” (Ex. N, p. 28) Anderson
also described his attempt to use the new “Business Committee” to take signature power over bank
repositories, obtain $5,000.00 in cash from the Casino, and obtain a $20,000.00 payment to his
attorney. (Ex. N, p. 36 - 9, 40-41)
59. Further, Anderson established both the de jure and de facto status of the members of
the Business Committee by a letter dated February 22, 2007 to Kelly Harjo which reported the
election results and identified the “newly elected Officers for Thlopthlocco Tribal Town.” (Ex. O,
Letter - Nathan Anderson dated 2-22-2007)
60. Thlopthlocco moved to dismiss the Cross-claim against the individual business
committee members based upon immunity and the prohibition of authority to adjudicate an election
7 Arguably, even under Anderson’s sideways theory that he was the only lawfully elected Business Committee member and had the right to select the other members, if he concurred in the selection of the five advisory members of the Business Committee, they would be lawfully selected by virtue of his agreement and these five members would have retained office.
18 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 19 of 32
dispute. This motion as well as summary judgment based upon Anderson’s testimony has been
denied by Defendant Stidham, who by now had been appointed a special district judge by the MCN
Supreme Court with sustaining jurisdiction over the case.
61. The continued exercise of jurisdiction by the MCN judiciary to adjudicate the
election dispute is in excess of the jurisdictional grant by Thlopthlocco and is contrary
Thlopthlocco’s sovereign immunity under federal law. The interpretation of sovereignty waivers
are strictly construed in favor of the sovereign. See United States v. Nordic Villages, Inc., 503 U.S.
30, 34, 112 S.Ct. 1011 (1992)(“These cases do not, however, eradicate the traditional principle that
the Government's consent to be sued must be ‘construed strictly in favor of the sovereign,’ . . . and
not ‘enlarge[d] ... beyond what the language requires,”) (quotes omitted) citing McMahon v. United
States, 342 U.S. 25, 27, 72 S.Ct. 17, 19 (1951)
62. In the meantime, Anderson was the subject of a Grievance Procedure under the
Thlopthlocco Constitution and after consideration, was removed from office. (See Ex. F)
63. Vernon Yarholar was selected by the remaining Business Committee members as the
new Mekko. George Scott was selected as Yarholar’s replacement as Warrior. Tanya Walker was
selected as Scott’s replacement as Advisor. Walker is a member only of Thlopthlocco and is not a
member of MCN.
64. A third jurisdictional issue arose. During the course of the litigation, Anderson’s
group moved for an award of attorney fees to support their side of the litigation. Thlopthlocco
opposed as there was no jurisdictional basis in its limited consent for a fee determination, especially
on an interlocutory basis, especially against Thlopthlocco.
65. The effect of an order to pay Anderson’s attorney fees would have been payment of
19 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 20 of 32
a monetary amount in direct derogation of Thlopthlocco’s sovereign immunity under federal law.
Nevertheless, the request was granted by Defendant Stidham.
66. Thlopthlocco filed another interlocutory appeal to the MCN Supreme Court seeking
to overturn the fee ruling. After consideration, the MCN Supreme Court issued a ruling on January
16, 2009 (Ex. G, Signed by Defendant Shirley) which was remarkable in its content. The MCN
Court held:
It was premature to determine the issue of attorneys’ fees in this case until the lawful governing body of Thlopthlocco is determined. Until then, it is unknown whether anyone among the litigants has the authority to vote to expend Thlopthlocco funds. In the interest of fairness, it is therefore ORDERED that no party is entitled to attorneys’ fees during the pendency of these proceedings. It is further ORDERED that any attorneys’ fees paid from the Thlopthlocco treasury to the Plaintiff’s counsel be returned and re-deposited into the treasury.
Order, Ex. G
67. This was an Order that no one asked for, nor was it briefed, or argued. More
important, again, the Order was outside’s Thlopthlocco’s consent to jurisdiction by the MCN
judiciary. Thlopthlocco gave the MCN courts no authority to interfere with, much less adjudicate,
any question of Thlopthlocco’s contractual obligations to its attorneys or otherwise or consent to an
question of its paying fees to its opponent on an interim basis. The appeal arose simply because the
Thlopthlocco Business Committee opposed funding an illegitimate effort to take over the Tribal
government without resort to the internal Tribal grievance procedure. Once such a precedent was
established, Thlopthlocco’s government would be in a constant upheaval, not just after the regular
elections, but any time that a faction, such as Anderson’s chose to disrupt Tribal governance and
then have it financed by Thlopthlocco.
68. Besides lacking jurisdiction, the decision is even inconsistent with earlier rulings of
20 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 21 of 32
the MCN courts enjoining the Anderson faction from interfering with Tribal governance activities
because such an injunction would not ordinarily have been granted without a substantial likelihood
of Thlopthlocco’s prevailing on the merits. The decision was additionally harmful to ongoing
governance because it interferes with and questions the status of the original Business Committee
to contract on behalf of lawful Tribal activities. The MCN Supreme Court decision arguably
contributes to the instability of the Town government in raising a question regarding the authority
to govern the Town, even though all original Business Committee members were authorized as de
facto members of the Business Committee to make decisions on behalf of the Town during their
tenure in office.
69. Thlopthlocco filed a Petition for Rehearing in the MCN Supreme Court. On February
12, 2009, the MCN Supreme Court denied the Thlopthlocco Motion. (Ex. M, Signed by Defendant
Shirley)
70. As a result of the MCN Supreme Court’s Order on Fees, on February 5, 2009,
Defendant Stidham issued an order directing Crowe as Plaintiff’s attorneys to return all funds paid
from the Thlopthlocco Treasury with proof of repayment to be furnished to the Court on or before
February 20, 2009. The matter was set for further hearing on March 6, 2009. (Ex. K)
71. Instead of complying with the Order of Defendant Stidham, as previously indicated,
Crowe instituted suit in this Court on February 24, 2009. Crowe & Dunlevy, P.C. v. Stidham, No.
CIV-09-95-TCK, USDC ND Okla) This Court is asked to take judicial notice of that proceeding
and the various filings therein. Fed.Rul.Evid. 201(d) See U.S. v. Estep, 760 F.2d 1060, 1063 (10th
Cir., 1985) (“This court adopted the general rule that “[j]udicial notice is particularly applicable
to the court's own records of prior litigation closely related to the case before it.”)
21 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 22 of 32
72. In his answer filed in response to the Complaint filed by Crowe, Defendant Stidham
admitted that Thlopthlocco was an independent and autonomous tribe:
5. As it relates to paragraph 4 of Plaintiff’s Complaint, Defendant admits Thlopthlocco has been a federal recognized Indian tribe since the 1930's and Thlopthlocco has a long historical relationship with the Muscogee Nation and it is an independent and autonomous tribe.
Crowe v. Stidham, No. CIV-09-95-TCK, (Doc. 36, p. 1-2)
This Court is asked to take judicial notice of this document filed with this Court.
73. On March 6, 2009, Defendant Stidham determined that Crowe failed to comply with
his Order and directed Plaintiff Thlopthlocco to provide the Court with copies of all billing
statements presented by Michael McBride or by Crowe which were paid during the course of the
case. Stidham further directed McBride, or a Crowe representative, to appear and show cause why
they should not be held in indirect contempt. (Ex. L signed by Defendant Stidham)
74. Judge Kern issued a preliminary injunction against Defendant Stidham on April 24,
2009 (Doc. 030) and Thlopthlocco asks that this Court take judicial notice of that Order. See
Fed.Rul.Evid. 201(d).
75. Thlopthlocco delivered redacted copies of the Crowe billing statements to Defendant
Stidham, in camera.
76. In light of this unfortunate and ill-advised continuing disregard by the MCN judiciary
of Thlopthlocco sovereignty and the continued exercise of jurisdiction without regard to the consent
given by Thlopthlocco, the Thlopthlocco Business Committee passed Resolution 2009-7 which
revoked any and all subject matter jurisdiction of the MCN judiciary to adjudicate Thlopthlocco’s
Complaint or any related issue and withdrew any consent to jurisdiction. (Ex. H)
77. On June 12, 2009, Thlopthlocco filed a conditional motion to dismiss seeking
22 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 23 of 32
dismissal of all claims based upon the Thlopthlocco revocation of jurisdiction, including dismissal
of the cross-action of the individual defendants in the Tribal Court proceeding.
78. Thlopthlocco conditioned the motion to dismiss on the Court’s dismissal of all claims
of the Plaintiff and all claims of the Defendants based upon a lack of subject matter jurisdiction since
the withdrawal of consent to jurisdiction specifically excluded any jurisdiction to adjudicate any
issue before the Court. In the event that the court did not dismiss all claims of the Defendants
(including the Ex Parte Young claims), Thlopthlocco would persist in its Complaint so as to not
allow a default as to Anderson’s cross-claims, reserving an objection to the exercise of jurisdiction
by the MCN judiciary. The Motion was briefed by the parties and came at issue.
79. On July 16, 2009, the MCN District Court denied Thlopthlocco’s Conditional Motion
to Dismiss. Judge Stidham would not enter a written order8 memorializing the hearing, but indicated
that he would rely upon the transcribed record of a court reporter brought by Thlopthlocco. Plaintiff
Thlopthlocco then excerpted and filed a statement of the transcription of the order of the Court’s
decision. (Ex. I) The entire transcript has been since been filed with the Tribal Court Clerk.
80. On August 3, 2009, Thlopthlocco filed another Interlocutory appeal seeking
adjudication by the MCN Supreme Court of Thlopthlocco’s Conditional Motion to Dismiss.
8Ordinarily, the record in the Tribal Court is a video recording. The refusal to enter a written order may very well have been an effort to frustrate Thlopthlocco announced plan to appeal. Despite a discussion regarding appeal during and after the argument, as well as an oral stay request, Judge Stidham indicated that while he did not believe he could prevent an appeal, he would not stay proceedings so as to permit an appeal. On August 3, 2009, the day that the Interlocutory Appeal was filed, Judge Stidham subsequently e-mailed that if an appeal was planned that the attorneys should draft an agreed order to be submitted to the Court. Jon Velie, counsel for Anderson’s faction will not agree to Thlopthlocco’s proposed Order or propose corrections or his own version of an order. As indicated, in lieu of a court minute or formal order, Thlopthlocco filed a written excerpt from the record containing the Judge’s verbal statement of decision. (Ex. I)
23 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 24 of 32
Although the issue involves the revocation of subject matter jurisdiction by Thlopthlocco, the
question of the Tribal Court’s improper assertion of jurisdiction over Thlopthlocco in violation of
Thlopthlocco sovereign immunity has been exhausted in the Supreme Court of the MCN in that it
is clear that the MCN Court, contending that MCN law is supreme over Federal law, does not
recognize Thlopthlocco’s separate sovereignty under the federal OIWA and Thlopthlocco’s
historical autonomous status as an Indian Tribal Town.
81. Despite the withdrawal of consent to jurisdiction and the Thlopthlocco Conditional
Motion, the MCN District Court has now set all issues for jury trial on October 5, 2009. (Ex. J)
82. The MCN courts have no right to exercise jurisdiction over internal Thlopthlocco
matters including issues of governance except as by Thlopthlocco’s explicit and specific consent.
83. Those issues of governance were properly resolved by Thlopthlocco under its
Constitution by the removal of Nathan Anderson as Mekko by a grievance procedure on July 30,
2007. (Ex. F)
84. By its original consent to jurisdiction to the MCN Court, Thlopthlocco sought only
the enforcement of Thlopthlocco law as expressed through the resolutions and decisions of its
original Business Committee duly elected and sworn in January and February 2007, not the
interference by the MCN courts with its internal governance.
85. The Anderson faction has never sought to invoke the grievance procedure under
Thlopthlocco’s Constitution for the redress of any of its grievances, opting instead for an attempted
coup styled takeover of the Business Committee. As such, even if the MCN courts could exercise
jurisdiction by virtue of MCN law or otherwise, which is denied, MCN courts would still have no
jurisdiction because Anderson’s faction has never exhausted Tribal remedies under the Thlopthlocco
24 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 25 of 32
Constitution.
86. While MCN courts may erroneously claim supremacy of MCN law over federal law
that establishes and recognizes Thlopthlocco sovereignty, as a sovereign autonomous and former
member of the Muscogee (Creek) Confederacy, Thlopthlocco law is supreme over MCN law or
jurisdiction with regard to internal Thlopthlocco matters, including governance. This includes the
lawful Resolutions of the original Business Committee in its original limited consent to jurisdiction,
governing resolutions since the time of their election and entry into office including Resolutions of
employment of attorneys, and Resolutions withdrawing subject matter jurisdiction from the MCN
courts.
87. Thlopthlocco’s federal sovereignty and the supremacy of federal law which allowed
Thlopthlocco’s separate federal recognition is supreme over MCN law and thus Thlopthlocco has
a substantial likelihood of prevailing on the merits.
88. The exercise of jurisdiction by the MCN courts on matters affecting Thlopthlocco
governance is irreparable harm to Thlopthlocco in that it derogates Thlopthlocco sovereignty, calls
into question the governing authority of the current and original Business Committee, and interferes
with and is disruptive to the continued operation of that government.
89. The Thlopthlocco Tribal Town government has a budget of over $3.6 million and
oversees a number of tribal governmental committees and departments with over 50 tribal
governmental employees and 125 casino employees. Thlopthlocco is also the second largest
employer in Okfuskee County, one of the poorest areas of Oklahoma. The Thlopthlocco government
provides or administers essential governmental social services to its citizens, including utility
assistance, housing and rehabilitation services, child care, educational help, health care and
25 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 26 of 32
emergency assistance. Additionally, the Thlopthlocco government manages and protects at least
2,337 acres of tribal trust lands in Hughes and Okfuskee Counties. These properties are held by the
United States of America for the benefit of Thlopthlocco Tribal Town. Thlopthlocco deals with
Indian child welfare cases that impact Thlopthlocco tribal families.
90. Sovereign immunity, like most immunity, means not only immunity from judgment,
but immunity from suit. Thlopthlocco, as a sovereign, is not subject to suit without its consent or
the abrogation of its sovereign immunity by Congress. Thlopthlocco may withdraw its consent to
jurisdiction under circumstances when the Court acts in excess of that jurisdiction or when
Thlopthlocco withdraws jurisdiction prior to judgment. By analogy, see Republic of Iraq v. Beaty,
--- S.Ct. ----, 129 S.Ct. 2183, 2009 WL 1576569 (June 8, 2009)(After previous grant of jurisdiction
to bring suit, Congress can reinstate immunity from suit for Iraq during judicial proceedings) See
also In re National Security Agency Telecommunications Records Litigation, 2009 WL 1561818
(N.D.Cal., June 03, 2009) (During litigation Congress can grant immunity to electronic
communications service providers who were sued by customers for assisting the government in
warrantless national security wiretaps)
91. Forcing a trial means that the immunity right is lost when the purpose of the
immunity is to prevent trial and constitutes irreparable harm and is disruptive to ongoing operation
of the existing Thlopthlocco government.
92. The threatened and ongoing injury to Thlopthlocco outweighs any harm the proposed
injunction may cause the Defendants whose rulings and decisions in excess of their jurisdiction are
ultra vires to the authority and duty of their offices.
93. Any injunction issued by this Court would serve the public interest in preserving the
26 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 27 of 32
sovereign immunity of Thlopthlocco instead of disrupting its ongoing de jure governing body. The
decisions of the MCN Supreme Court and District Courts are in excess of the lawful jurisdiction of
the MCN judiciary and the acts of the individual defendants are ultra vires and unenforceable.
94. In instances of determination of the supremacy or pre-emptive effect of federal law
over state law, for example, the balance-of-harm and public-interest factors need not be taken into
account because the question of harm to the State and the matter of the public interest drop from the
analysis. See Bank One, Utah v. Guttau, 190 F.3d 844 at 847-848 (8th Cir. 1999)
VI. -Claims-
Plaintiff comes before the Court and incorporates the allegations previously stated
and makes the following claims against these Defendants:
1. SUPREMACY OF FEDERAL LAW OVER MCN LAW. Thlopthlocco Tribal Town,
as a federally recognized Indian Tribe organized under the Federal OIWA, and pursuant to its
traditional autonomous standing as a Tribal Town, is entitled to sovereign immunity from suit
without its consent and in the absence of any abrogation of that consent by Congress and such
federal rights and law are supreme over any legislative act, court decision, or practice of the MCN.
2. The exercise of jurisdiction by Defendants Stidham and Shirley and those acting in
concert with them over Thlopthlocco is a violation of Thlopthlocco’s rights of sovereignty granted
federal law under 25 U.S.C. §503, the Oklahoma Indian Welfare Act; and the supremacy of federal
law over any law, decision, or rule of an Indian tribe under the Indian Commerce Clause of the
United States Constitution (Article 1, section 8); the Treaty Clause, Article II, section 2, clause 2
or; as may be applicable, the Supremacy Clause of the United States Constitution (Article VI,
paragraph 2).
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3. SECOND ONGOING VIOLATION OF FEDERAL LAW. The actions of the
individual defendants and those acting in concert or joint participation with them to subject
Thlopthlocco to adjudication under MCN law involving cross claims involving election and other
matters which were not the subject of Thlopthlocco’s consent to jurisdiction is a violation of
Thlopthlocco’s rights of sovereignty granted federal law under 25 U.S.C. §503, the Oklahoma Indian
Welfare Act; and the supremacy of federal law over any law, decision, or rule of an Indian tribe
under the Indian Commerce Clause of the United States Constitution (Article 1, section 8), the
Treaty Clause, Article II, section 2, clause 2, or; as may be applicable, the Supremacy Clause of the
United States Constitution (Article VI, paragraph 2).
4. THIRD ONGOING VIOLATION OF FEDERAL LAW. The actions of the
individual defendants and those acting in concert or joint participation with them to order that
Thlopthlocco not pay its attorneys fees and honor its contractual agreements with its attorneys is a
violation of Thlopthlocco’s rights of sovereignty granted federal law under 25 U.S.C. §503, the
Oklahoma Indian Welfare Act; and the supremacy of federal law over any law, decision, or rule of
an Indian tribe under the Indian Commerce Clause of the United States Constitution (Article 1,
section 8), the Treaty Clause, Article II, section 2, clause 2, or; as may be applicable, the Supremacy
Clause of the United States Constitution (Article VI, paragraph 2).
5. FOURTH ONGOING VIOLATION OF FEDERAL LAW. The actions of the
individual defendants and those acting in concert or joint participation with them to subject
Thlopthlocco to continued adjudication under MCN law after Thlopthlocco has withdrawn its
consent to jurisdiction is a violation of Thlopthlocco’s rights of sovereignty granted federal law
under 25 U.S.C. §503, the Oklahoma Indian Welfare Act; and the supremacy of federal law over any
28 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 29 of 32
law, decision, or rule of an Indian tribe under the Indian Commerce Clause of the United States
Constitution (Article 1, section 8), the Treaty Clause, Article II, section 2, clause 2, or; as may be
applicable, the Supremacy Clause of the United States Constitution (Article VI, paragraph 2).
6. ONGOING VIOLATION OF FEDERAL LAW. Each of the actions of the individual
defendants and those acting in concert or joint participation with them to subject Thlopthlocco to
adjudication under MCN law constitutes a straight forward violation of federal law as to
Thlopthlocco sovereignty and rights as a federally recognized Indian Tribe.
7. STATUS QUO. The actions of the individual defendants in seeking to subject
Thlopthlocco to adjudication in violation of Thlopthlocco’s rights of sovereignty under Federal law
violates the status quo and Thlopthlocco’s right to peaceful governance by the original Business
Committee which should be preserved by a restraining injunction.
8. IRREPARABLE HARM. Subjecting Thlopthlocco to adjudication and trial in
violation of its sovereign immunity is irreparable harm per se in that it subjects Thlopthlocco to
unwarranted instability, harm, invasion, uncertainty, and instability.
9. PUBLIC INTEREST. The granting of preliminary and permanent relief and
declaratory judgment will be in the public interest in that the MCN court will be required to conform
to federal law preventing or avoiding the improper exercise of jurisdiction.
VII. -Prayer for Relief-
WHEREFORE, Plaintiff incorporates the allegations previously stated and makes the
following requests that this Court:
1. Assume jurisdiction of the cause to determine this controversy and set this case down
promptly for hearing. (Fed.Rul.Civ.Pro. 57 provides, “The court may order a speedy hearing of a
29 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 30 of 32
declaratory-judgment action.”)
2. Upon hearing as necessary to secure the federal rights of Thlopthlocco, pursuant to
28 U.S.C. §2201-02 and Fed.Rul.Civ.Pro. 57, this Court should declare that Thlopthlocco’s rights
of sovereign immunity under federal law are supreme over any legislative act, court decision, or
practice of the MCN and that continuing to subject Thlopthlocco to the jurisdiction of Defendants
is a violation of federal law in that Thlopthlocco is immune from any adjudicative jurisdiction in the
MCN courts except upon the explicit and specific consent of Thlopthlocco. This Court should enter
judgment declaring that any and all such orders of the MCN District or Supreme Courts in excess
of their jurisdiction as they are applied in the Tribal Court action are null and void including any
claim of jurisdiction to affect Thlopthlocco’s contract payments with it attorneys, or adjudication
of any election dispute as a sovereign internal matter reserved by Thlopthlocco.
3. Upon hearing and to preserve the status quo this Court should grant Plaintiff a
preliminary injunction as to prospective injunctive relief as prayed for herein enjoining Defendants,
their agents, or anyone acting in concert or joint participation with them in their individual or official
capacity from the exercise of any jurisdiction of the Muscogee (Creek) Nation over Plaintiff
Thlopthlocco without the explicit and specific consent of Thlopthlocco. (Fed.Rul.Civ.Pro. 65(d)(2)
provides that an injunction binds the following with actual notice: (A) the parties; (B) the parties’
officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert
or participation with anyone described in (A) or (B)).
4. Upon final hearing grant Plaintiff a permanent injunction as to prospective injunctive
relief as prayed for herein enjoining Defendants, their agents, or anyone acting in concert or joint
participation with them in their individual or official capacity from the exercise of any jurisdiction
of the Muscogee (Creek) Nation over Plaintiff Thlopthlocco without the explicit and specific consent
30 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 31 of 32
of Thlopthlocco.
5. Pursuant to Rule 54(d) of the Federal Rules of Civil Procedure, allow Plaintiff its
costs herein against Defendants as permitted therein.
6. For any and all such other and further relief as this Court deems just and equitable
against appropriate parties under Fed.Rul.Civ.Pro. 54(c) and as consistent with Thlopthlocco’s
action for “prospective injunctive relief.”
Respectfully submitted,
MICHEAL SALEM (OBA #7876) Salem Law Office 101 East Gray, Suite C Norman, Oklahoma 73069 Telephone: (405) 366-1234 Telefax: (405) 366-8329
ATTORNEY FOR PLAINTIFF THLOPTHLOCCO TRIBAL TOWN, a Federally Recognized Indian Tribe
D:\WP51\Thlopthlocco Tribal Town-WP\Federal Court\Complaint\8-17-2009 Thlopthlocco Complaint.wpd
31 Case 4:09-cv-00527-TCK-FHM Document 2 Filed in USDC ND/OK on 08/18/2009 Page 32 of 32
Complaint
Exhibit List
Ex. A Thlopthlocco Constitution ratified April 13, 1939.
Ex. B Solicitor’s Opinion authored by Frederic Kirgis July 15, 1937.
Ex. C Thlopthlocco Business Committee Resolution No. 2007-21, dated June 7, 2007.
Ex. D MCN Supreme Court Minute Order dated June 29, 2007 regarding jurisdiction.
Ex. E MCN Supreme Court Order dated October 26, 2009 regarding jurisdiction.
Ex. F Business Committee Resolution Approving Removal of Nathan Anderson as Mekko by Grievance Procedure.
Ex. G MCN Supreme Court Order dated January 16, 2009 regarding Attorney Fees.
Ex. H Thlopthlocco Business Committee Resolution No. 2007-7, dated February 19, 2009 withdrawing all consent to jurisdiction by Thlopthlocco to the MCN Courts.
Ex. I Order of MCN District Court denying Thlopthlocco Conditional Motion to Dismiss (Excerpt of Transcript of District Court decision on July 16, 2009).
Ex. J MCN District Court Order setting case for jury trial on October 5, 2009 and establishing Scheduling Order.
Ex. K MCN District Court Order dated February 5, 2009 directing compliance with MCN Supreme Court order on repayment of fees.
Ex. L MCM District Court Order dated March 6, 2009 regarding failure of Crowe & Dunlevy to comply with MCN Supreme Court Order on repayment.
Ex. M MCM Supreme Court Order dated February 12, 2009 denying Rehearing of January 16, 2009 Order on Fees.
Ex. N Transcript of Testimony of Nathan Anderson, Excerpt from Hearing on Temporary Restraining Order, June 21, 2007.
Ex. O Letter - Nathan Anderson dated 2-27-2009.
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