allencaseorder

                                         IN THE JUDICIAL APPEALS TRIBUNAI
                                            OF THE CHEROKEE NATION

LUCY ALLEN,                        )
Petitioner,                          )
                                                                                 )                                  JAT-04-09
                                                                     )
CHEROKEE NATION                                          )
TRIBAL COUNCI, et al.,                                    )
Defendants              )

                                                                 RESPONSE TO MOTION TO DISMISS

Comes now Lucy Allen, by and through her appointed lay advocate
David Allen Comsilk, and herein responds to defendants' Motion to
Dismiss. Petitioner prays the Honorable Court will deny Respondents'
Motion to Dismiss for the following reasons:
Petitioner concedes that Cherokee Nation is a sovereign cloaked in
many of the attributes of sovereignty, one of which is sovereign immunity.
However, Petitioner takes issue with, completely disagrees with and denies
the notion that sovereign immunity applies in this instance.

Not withstanding the ruling of this Court in Rorex v. Cherokee Nation, JAT 93-
05, Petitioner claims that the Cherokee people have waived sovereign
immunity in the Constitution. Petitioner draws the Court's attention to the
following references from the Constitution of the Cherokee Nation,
approved by referendum of the Cherokee people on June 26, 1976:
              a. Article II. Bill of Rights
Section 1.
The judicial process of the Cherokee Nation
shall be open to every member of the Cherokee Nation. Speedy
and certain remedy shall be afforded under the terms of this
Constitution for every wrong and injury to person, property or
reputation wherein said remedy does not conflict with the laws of
the United States. The Council shall prescribe the procedures
pertinent thereto. The appropriate protections guaranteed by the
Indian Civil Rights Act of 1968 shall apply to all members of the
Cherokee Nation.
              b. Article III. Membership
Section 2. (c).
The decisions of the Registration
Committee shall be subject to review by the Tribunal created by

Article VII.
          c. Article VII. Judicial
There is hereby created a Judicial Appeals Tribunal
composed of three (3) members all of whom must be admitted to
practice law before the highest Court of the State of which they are
residents, and all of whom shall be members of the Cherokee
Nation, appointed by the Principal Chief and approved by the
Council for such terms as the Council may provide. The purpose
of this Tribunal shall be to hear and resolve any disagreements
arising under any provisions of this Constitution or any enactment
of the Council.

The Council shall provide for a procedure which
shall insure that any litigant receives due process of law together
with prompt and speedy relief, and shall generally follow that
portion of the Oklahoma Statutes known as the Administrative
Procedures Act, Title 75, Oklahoma Statutes, 301 et seq. The
decision of the Judicial Appeals Tribunal shall be final insofar as
the judicial process of the Cherokee Nation is concerned.

           d. Article XII. Employee Rights
No Employee, who having served in a position at least
one (1) year, shall be removed from the employment of the
Cherokee Nation except for cause. The employee shall be afforded
a hearing by the Judicial Appeals Tribunal under such rules and
procedures as may be prescribed by the Council. These rules and
procedures, however, must follow, as nearly as practicable, the
provisions of the Oklahoma Administrative Procedures Act, Title
75, Oklahoma Statutes 301 et seq.

Petitioner has been harmed by the actions of the Cherokee Nation
Tribal Council through the 'by blood' requirements found in the Cherokee
Nation Code. Petitioner has standing to bring this suit and relies upon the
findings of Cherokee standing affirmed by the Judicial Appeals Tribunal at
Leach v. Election Commission, JAT 94-1, Mayes v. Thompson, JAT 95-15,
Comsilk v. Council, JAT 96-15, and Phillips v. Eagle, JAT 98-09.

Numerous other cases have come and gone before this Honorable Court and
have been heard on the merits, notwithstanding any claim of sovereign
immunity raised by the defendants. The Cherokee people, in their wisdom,
knew that there would be disputes within the Cherokee family and provided
for a mechanism whereby disputes could be resolved.

The Cherokee people have expressly waived the sovereign immunity of the Cherokee
Nation regarding internal disputes and have not waived sovereign immunity when
the Cherokee Nation is attacked from the outside. It is clear that sovereign
immunity in the Cherokee Nation is unique and not the same as that of other
sovereigns.

In a long and historic thread of Cherokee jurisprudence, the
Judicial Appeals Tribunal has held that Citizens of the Cherokee Nation may
file suit against the Council, the Chief, appointed officials and
committees/commissions of the Cherokee Nation when individuals have
been harmed by the actions of those parties and such harm is actionable
under the terms of the Constitution and laws of the Nation.

In this instance, Lucy Allen has been harmed by the actions of the Council through
the passage of laws which seek to extinguish her rights. She has been further
harmed by the actions of the Registrar and the Registration Committee by
their enforcement of the Council's laws.

The Constitution of the CherokeeNation speaks loud and clear that the
Judicial Appeals Tribunal, the final word on Cherokee law, has both subject
matter and personal jurisdiction tohear and adjudicate this case.

As a point of clarification for Richard Osbum, legal council for Leia
Ummerteskee, Registrar and the Registration Committee, Plaintiff Lucy
Allen has sued Ms. Ummerteskee in her official capacity as Registrar.

Further, Petitioner asks this Court to clarify if representation of the
defendants, so named in this suit, by the Cherokee Nation Department of
Justice, actually constitutes representation by the Cherokee Nation itself.
Petitioner believes that absent a resolution or legislative act of the Cherokee
Nation Tribal Council, no department, committee, commission, employee or
individual has the authority to speak for the Cherokee Nation. Petitioner
does not seek to deny defendants representation, only that she know if her
opponent is an attorney employed by the Cherokee Nation or if he is in fact
the Cherokee Nation, as he purports.

Wherefore, Petitioner Lucy Allen prays that the Court will deny
Respondents' motion to dismiss and make appropriate clarifications as
necessary and requested.

___________________
Lucy Allen, Pro Se
5518 N.Hartford Place
Tulsa, OK 74126

___________________
David Allen Comsilk
5925 E. 33rd Court
Tulsa, OK 74135

                                                                          Certificate of Mailing

I, David Allen Comsilk, hereby certify that on the 22nd day of
October, 2004,1 mailed a true and correct copy of the foregoing Response to
Motion to Dismiss, via first-class mail with sufficient postage prepaid
thereon, to: Richard Osbum. Cherokee Nation Department of Justice, Todd
Hembree, Cherokee Nation Council House, Cherokee Nation Tribal Council,
all at the same address of P.O. Box 948, Tahlequah, OK 74465.

David Allen Comsilk