IN THE CHEROKEE NATION DISTRICT COURT

IN RE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY, PROSE     

                                                                                     

                                
RESPONSE TO MOTION FOR SUMMARY JUDGMENT

 

COMES NOW Todd Hembree, pro se, and hereby responds to respondents' motion for summary judgment, and states as follows:

1. Respondents motion for summary judgment is based on petitioner's failure to

respond to their Motion to Dismiss. The Court will note that Petitioner filed a

/
response to said motion on August 20, 2004, and the Court has given the

Respondents ample time to review said response, setting a hearing on this motion
for
September 17, 2004
. Therefore, respondent's motion for summary judgment
on this issue is moot.

2. Respondents' second reason for Summary Judgment can best be described as a
standing argument. In Petitioner's Response to Respondent's Motion to Dismiss,
he set forth the justification for his standing to pursue this matter. Petitioner
adopts and restates his standing authority as set out in his response
fto
Respondents' Motion to Dismiss as previously filed.

3. Respondents' third argument for Summary Judgment seems to say that Petitioner
is just plain wrong. In response to this, petitioner states that his Declaratory
Judgment Action and his Response to the Motion to Dismiss has
citied Cherokee
Nation Authority supporting his argument, and again Petition adop ts and restates
the arguments set forth in these documents, which are on file.

WHEREFORE, having fully answered Respondents' Motion for Summary Judgment,
Petitioner prays that this Court deny the same and that he be granted any other relief
to which he may be entitled.

Respectfully Submitted,

           Todd Hembree
             
Petitioner

                                                     Certificate of Mailing

I hereby certify that on the 27th day of April , 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

<>Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy
Reynolds
12104 E. 81st St. North
Owasso, OK 74055
<> 
                                                          

todd HEMBREE
Cherokee Citizen

 

 

 

 

 


                       

 

                                                     IN THE CHEROKEE NATION DISTRICT COURT

 
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY, PROSE    
                                                                                   

                                                             RESPONSE TO MOTION TO DISMISS

COMES NOW, the Petitioner, Todd Hembree, and hereby makes his response to the
Motion to Dismiss filed herein.
To Wit:

1.     Petitioner, Todd Hembree, is a Cherokee Nation citizen. The Judicial Appeals
Tribunal has long recognized citizen standing in various forms. In PhiElips vs.
Eagle, JAT-98-09, this court stated "In summary, the law of this court
generally follows the federal standing doctrine, this court will not allow the
hyper technical federal complexities pertaining to standing prevail over a just
and expeditious resolution of a case on its merits. This court will balance the
guidance provided by Federal and State decisions in the interests of
fundamental justice tempered by prudence and guidance both by the entirety
of our Cherokee Constitution." In Cornsilk vs. Cherokee Nation,
JAT-96-15,
the court held the individual Tribal member had standing to sue the Tribal
Council. Petitioner brings this lawsuit for an interpretation of the laws; of the
Cherokee Nation. It is a highly specific and narrow question that need be
answered. To deny Petitioner standing to bring this important question to the
Court would be to deny the Cherokee People of the opportunity for
clarification of their laws which could result in further questions about the
marriage laws of the Cherokee Nation.

2.     Respondents admit in their responsive pleadings that in Title 43, there are
references to husband and wife, and that the traditional legal definition of
those terms are gender specific. Obviously, this matter has not been filed as a
meritless claim or for the purposes of harassment, it is an opportunity to
resolve a legitimate legal interpretation. Petitioner and Respondents should
want this matter heard not only for themselves but for all of their fellow
Cherokee citizens. It is within the Courts discretion to allow citizen standing.
Petitioner would requests this court, that Respondents motion to dismiss for
standing be denied.

3.     Respondents ask that this matter be dismissed for lack of subject matter
jurisdiction. The District Courts of the Cherokee Nation are part of the
Judicial system of the Cherokee Nation. Just like in any court of the
United
States
, a Constitutional question is not initially filed in the United States

Supreme Court. It first works its way through the District Court system, and
other Appellate courts before reaching the Supreme Court. Likewise, our

district court, being part of our Judicial system has the subject matter
jurisdiction to interpret statutes. If any party is agrieved by the decision of
the District Court then obviously they would have their Appellate rights as in
anv other case. Simply put, not all cases have to be originally filed, not all
cases interpreting statutes or Constitution of the Cherokee Nation have to be
filed with the Judicial Appeals Tribunal. In the alternative, if the court did so
rule, Respondents would ask that the case not be dismissed, but simply
transferred to the Judicial Appeals Tribunal.

4.     The remainder of Respondents reason for dismissal would fail if Petitioner
does have standing.

WHEREFORE PREMISES CONSIDERED, Petitioner would request this court to
deny Respondents motion  to Dismiss and to set this matter for hearing on its merits.
And to whatever relief he may be entitled.

Respectfully Submitted,

           Todd Hembree
             
Petitioner

                                                      Certificate of Mailing

<> 

I hereby certify that on the 19th day of August , 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

<>Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy
Reynolds
12104 E. 81st St. North
Owasso, OK 74055

                                                                

todd HEMBREE
Cherokee Citizen

 


                                                      IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY   


Respondents:
KATHY REYNOLDS AND
DAWN MCKINLEY, PRO SE

MOTION TO DISMISS

COMES NOW Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by

blood of the Cherokee Nation, residents ofOwasso, Oolagah District, in response to District
Court Jurisdiction prays the honorable District Court to dismiss and hold for naught case number
CV-04-36 for the following reasons to wit:
1. Petitioner, Todd Hembree, has filed a complaint for which relief cannot be given.
Petitioner has not been harmed by Respondents' marriage certificate and if Petitioner be
successful, the only persons harmed would be the Respondents.
2. Petitioner lacks standing.
3. Petitioner missed the window of opportunity to file against Leslie Penrose's marriage
license. Section 4 of Title 43 grants a 30 day window to appeal Penrose's application. Thirty
days came and went with no appeal from Petitioner.
4. Title 43 has no provision for appeals regarding marriage certificates.
5. The Cherokee Constitution at Article 2 embraces the Indian Civil Rights Act which
provides equal protection of the law in the Cherokee Nation. Under this provision, all laws must
be applied equally to all citizens. Ifhetero-sexual couples have the right to choose their spouses
and be married, then so do homo-sexual couples. If, in fact, the court finds the inference male
and female in Title 43 is applicable then that section of the act would be unconstitutional.
6. The District Court of Cherokee Nation lacks subject matter jurisdiction because
Petitioner is asking the District Court to interpret the law and Constitutional questions reserved
for the Judicial Appeals Tribunal.
WHEREFORE, Respondents pray the District Court of Cherokee Nation will dismiss and
hold for naught all filings and pleadings of Petitioner.
Respondents further sayeth not.
 

Respectfully Submitted,

 KATHY REYNOLDS and
DAWN MCKINLEY
12104 East 81st Street North
Owasso, OK 74055


 
 


                                                     IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY    

 

                                                      IN THE CHEROKEE NATION DISTRICT COURT


Respondents:
KATHY REYNOLDS AND
DAWN MCKINLEY, PRO SE 
                                                                                    

                                    
MOTION FOR ENLARGEMENT OF TIME

COMES NOW Petitioner, Todd Hembree and hereby request this Court for an
enlargement of time for which to respond to Respondents' pleadings filed on July 12, 2004
which is currently due on the 27th day of July 2004. In support hereof, Movant shows the
Court as follows:

1. That the present status of this case is set for hearing on August 20, 2004.

2. That this enlargement of time is necessary because the Movant is a candidate for
State Senate District 3, which concludes on
July 27, 2004.

3. That Movant does not have the required time to devote to a Constitutional issue at
this time.

4. For these reasons, the undersigned cannot, consistent with this obligation to
adequately investigate, evaluate or prepare for the pending motions without being allowed
this enlargement of time.

5. That this motion is not made for the purpose of hindrance or delay and will not
prejudice the parties involved in this matter.

WHEREFORE, premises considered Petitioner respectfully requests an enlargement
of time, often days or until August 6, 2004, as hereinabove set forth, and for such other and
further relief to which Movant is entitled, whether legal or equitable.

Respectfully submitted,

TODD HEMBREE, OBA ^14739

Hembree & Hembree

110\V. Choctaw

Tahlequah OK 74464

(918)453-0101 (918) 458-9898 facsimile

 

                                                             Certificate of Mailing

 

I hereby certify that on the 14th day of July , 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

<>Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy
Reynolds
12104 E. 81st St. North
Owasso, OK 74055

                                                                

todd HEMBREE
Cherokee Citizen

 

 


                         

 

                                         IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY    

 

                                                                                        

                                    
PETITION FOR DECLARATORY TUDGMENT

COMES NOW Petitioner, Todd Hembree and hereby request this Court for a
Declaratory Judgment to declare that same sex marriages are not allowed under Title 43
et
seq.,
of the Cherokee Nation Code. In support of this filing petitioner "would state as follows,
to wit:

1. That marriage statutes of the Cherokee Nation are found in Title 43 of the
Cherokee Nation code. Throughout this title there are references to "husband and wife."
Black's Law Dictionary 6th ed. defines husband and wife. A "husband" is defined as "a married
man; one how has a lawful wife living." A "wife" is defined as "a woman united in marriage to
a man."

2. When determining the meaning of language in any statute, it is proper to look at
the statute as a whole and apply the plain language to the relation of society in the time it was
written. Eggers vs. Olson, 104
Okla.
297, 231 P. 483, 486 (1926). As in all cases of statutory
construction, it is the task of this Court to interpret the words of these statutes in light of the
purposes the legislature sought to serve.

3. Title 43 of the Cherokee Nation Code was based upon the Constitution of Laws of
the Cherokee Nation in 1892. Same sex marriages were not part of Cherokee history or
tradition. Cherokee society in 1892 did not allow nor contemplate same sex marriage. This
Court should determine that same sex marriage is not allowed under today's laws.

4. Respondents' actions are an attempt to have the Courts redefine the traditional
concept of marriage within the Cherokee Nation. Simply put Respondents are seeking to take
advantage of a perceived "loop hole" in our statute that if successful would fly in the face of
the traditional definition and understanding of marriage of the Cherokee people.

WHEREFORE, premises considered Petitioner prays this Court to declare that same
sex marriages are not allowed under Cherokee law and that Respondents marriage certificate
is null and void and held for naught.

 

 

               Respectfully submitted,

TODD HEMBREE, OBA ^14739

Hembree & Hembree

110\V. Choctaw

Tahlequah OK 74464

(918)453-0101 (918) 458-9898 facsimile

 

                                                             Certificate of Mailing

 

I hereby certify that on the 16th day of June , 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

<>Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy
Reynolds
12104 E. 81st St. North
Owasso, OK 74055

                                                                

todd HEMBREE
Cherokee Citizen



 


                                          

                                             IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY    

 

       ________________________________________________________________                                                                                   

                      APPLICATION FOR TEMPORARY INJUNCTION

COMES NOW Petitioner Todd Hembree, pro se, and hereby request this Court to
grant a Temporary Injunction enjoining the Respondents from registering any marriage
certificate with the Cherokee Nation District Court Clerk for the reason that Petitioner has
filed an Application for Declaratory Judgment and has given notice to Respondents' Council.
Petitioner would state that if a Respondent is allowed to register their marriage certificate
irreparable harm will occur to the Cherokee Nation and would make Petitioner's Application
for Declaratory Judgment moot. Petitioner would state that time is of the essence in this
matter and that this matter should set before this court at the earliest possible time so that
the merits on Petitioner's Application for Declaretory Judgement may be heard.

 

 

 

               Respectfully submitted,

TODD HEMBREE, Petitioner

110 W. Choctaw

Tahlequah OK 74464

(918)453-0101

 

                                                          

                                                          Certificate of Mailing

 

I hereby certify that on the           day of  June, 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

<>Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy
Reynolds
12104 E. 81st St. North
Owasso, OK 74055

                                                                 

todd HEMBREE
Cherokee Citizen

 


                                                    IN THE CHEROKEE NATION DISTRICT COURT


IN RE: THE MARRIAGE LICENSE
OF DAWN L. MCKINLEY AND
KATHY REYNOLDS, PRO SE                                                                              CASE NO. CV-04-36

                                           IN THE CHEROKEE NATION DISTRICT COURT


KATHY REYNOLDS AND
DAWN MCKINLEY, PROSE                                                                                           CASE NO. CV-04-36

RESPONSE AND MOTION TO QUASH

COMES NOW Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by
blood of the Cherokee Nation, residents of Owasso, Oolagah District, in response to District
Court Jurisdiction pray the honorable District Court to quash and hold for naught the petition for
declaratory judgement for Todd Hembree, Petitioner, for the following reasons to wit:
1. Title 43, section 2 of the Cherokee Nation Code Annotated, empowers every person
to contract marriage, not restricting their choice of spouse. In section 3, it is clear to identify
those prohibited to marry; first cousins, the insane or idiotic, or those who have a living husband
or wife. It does not say a person cannot choose person of the same gender. Respondents concede
Black's Law does define 'husband' as male and 'wife' as female in portions of Cherokee Act
Title 43. Portions that enable and portions inhibiting do not define gender. The black letter
reading of Section 5, is that the couple take each other as husband and wife, not that they be
husband and wife. Respondents have complied with that in the black letter reading of law in
Cherokee and English language. We concede Black Law's does define wife as female, and
husband as male, however in this instance, we do not concede in applies. If Black Law's applies
at all, it is superceded by the Cherokee Nation Constitution.

The Cherokee Nation Constitution at Article 2 embraces the Indian Civil Rights Act of
1968 which says the laws of Cherokee Nation must be applied EQUALLY among it's citizens
and if a law purports to restrict marriage as only a male and female the law is unequal and is
therefore unconstitutional. If the Court finds that this law is so restricted, then the Court lacks
subject matter jurisdiction because the case then rises to constitutional question which is reserved
for the Judicial Appeals Tribunal. Though the constitution says all officials of Cherokee Nation
shall take an oath swearing to protect and defend the constitution and promote culture, heritage,
and language of the Nation. This court has had no opportunity to hear evidence on whether or not
same sex marriages have ever existed in Cherokee Nation. Without having such information, the
court could not a make reasonable, equitable decision for all parties concerned. Further, the
Court has not heard, nor received, any information regarding the use of Cherokee language and
the interpretation of husband and wife as it is spoken in Cherokee language.
2. Petitioner, Todd Hembree, counsel for Cherokee Nation Tribal Council, has access to
legai documents, resources, internet. Black's Law that respondents do not have. Hembree offers
an Oklahoma court case as guidance to the court. It would be unfair to give Declaratory
Judgement to Petitioner when Respondents have not had equal opportunity to provide legal
history which would provide guidance. Respondents would be irreparably harmed.

Respondents have the right to their day in court and Petitioner is attempting to use his position of
advantage as a Cherokee Nation employee to railroad a baseless claim against Respondents'
marriage.
3. Title 43 has it's origin in 1892 Cherokee Nation. Neither Respondents nor Petitioner are
historians qualified to give courts information allowing the court to determine what Cherokee
Nation was like in 1892. To provide that information, both Respondents and Petitioner must
provide competent witnesses versed in Cherokee history and culture. The Court has not had an
opportunity to hear that information.
4. Petitioner has not provided any documentation to the court of what traditional marriage is
and is not. His inference that Cherokee marriage is the same as Euro-American marriage may be
inaccurate. Respondents hope to provide to the court documentation through witnesses that
traditional Cherokee marriage is not the same as Euro-American marriage and for the Court to
make judgement without that information is impossible.
Respondents believe there is no "loop hole" in Title 43. A black letter reading of the
enabling and prohibiting sections of that code are clear that EVERY person, with only minor
exceptions, may contract a civil Cherokee marriage. The re-adoption of the Cherokee Marriage
Act in 1993 came 17 years after the state of Oklahoma amended it's marriage act to restrict
marriage between a man and woman. Many other states amended their marriage act defining
marriage between a man and a woman. Neither the Cherokee Nation, author of it's law who now
sits as principle chief of Cherokee Nation, operated in a vacuum. It was well know in 1976 and
1993 that same sex couples were seeking legal civil marriage. The Cherokee Nation could have
made it's law identical to Oklahoma law as it has done in most instances. However, the
Cherokee Nation and it's officials are bound by a Constitutional oath to protect, defend, and
promote the heritage, language, and culture of The People. In this instance, Cherokee law
regarding civil marriages does in fact promote the heritage, language and culture of the Cherokee
people by embracing at most, or not prohibiting at least, same sex marriages.
WHEREFORE, Respondents further pray that the Court will consider the following to
wit:
1. Petitioner lacks standing to file such a claim and Respondents pray court will dismiss
all proceedings. Petitioner could have filed an appeal of the marriage license of the minister who
performed the ceremony per the wordings of Title 43 Section 4. Petitioner had 30 days to appeal
the license of Leslie Penrose, a widely known equal rights activist minister whom only prior to
applying for her license, was widely reported in the media as a minister who had gone to San
Francisco, California to perform same sex marriages. Petitioner missed his opportunity to appeal
and Title 43 provides for no other appeal neither of ministers' license, nor of marriage certificate.
2. Petitioner has filed a claim for which relief cannot be given. Petitioner has not
shown in any of his claims or filings how he has been harmed by Respondents' marriage. In
order for the Court to entertain an appeal, the Petitioner would be required to show that some
great irreparable harm would occur if the marriage were finalized by the filing of the certificate.

The only parties who will be harmed if Petitioner's claim is successful is the Respondents.
Respondents further sayeth not.

Respectfully Submitted,

 KATHY REYNOLDS and
DAWN MCKINLEY
12104 East 81st Street North
Owasso, OK 74055


 

                                           IN THE CHEROKEE NATION DISTRICT COURT


KATHY REYNOLDS AND
DAWN MCKINLEY, PROSE                                                                                           CASE NO. CV-04-36

WRIT OF MANDAMUS

COMES NOW Respondents, Kathy Reynolds and Dawn McKinley, pro se, and hereby
pray the honorable District Court will issue a Writ of Mandamus ordering the court
administrator. Lisa Fields, or her representative to comply with Title 43, Section 6, ordering her
to 'at once make record of the marriage certificate in a book kept for that purpose'
Respondents further sayeth not.

Respectfully Submitted,

 KATHY REYNOLDS and
DAWN MCKINLEY
12104 East 81st Street North
Owasso, OK 74055 


                                  IN THE JUDICIAL APPEALS TRIBUNAL
                                                              OF THE CHEROKEE NATION
IN THE MATTER OF THE                                        )
APPEAL OF THE ADVERSE                                     )
ORDER OF THE DISTRICT                                      )                                     Case No. JAT _______
COURT AGAINST KATHY                                        )                            District Court Case No. CV-04-36
REYNOLDS AND                                                        )
DAWN L. MCKINLEY, PRO SE                                )


                                                                     NOTICE TO THE COURT
                                                           AND MOTION TO CERTIFY RECORD

         COMES NOW, Respondents, Kathy Reynolds and Dawn L. McKinley, Pro Se,
citizens by blood of the Cherokee Nation, residents of Owasso, Oolagah District, and in
accordance with the Order of the District Court of the Cherokee Nation hereby gives
Notice to the District Court of Respondents' appeal to the Judicial Appeals Tribunal of
the Order of Judge John Cripps to over rule Respondents' Motion to Dismiss, Motion to
Quash and Motion for Summary Judgment. Respondents further move the Court to
certify the entire record in the above and styled case for transfer to the office of the Court
Clerk of the Judicial Appeals Tribunal.

        Respectfully submitted this ___day of December, 2004.

                                                                                                   _________________
                                                                                                    Kathy Reynolds and
                                                                                                     Dawn L. McKinley
                                                                                                   12104 East 81st St. N.
                                                                                                     Owasso, OK 74055
                                                                      
                                                          CERTIFICATE OF MAILING

 
We, the undersigned, do hereby certify that on the ___day of December, 2004,
mailed a true and correct, exact copy of the above and foregoing instrument, via first
class mail, postage paid thereon, to: Todd Hembree, P.O. Box 1353, Stilwell, OK 74960.
                                                                                                  ____________________
                                                                                                       Kathy Reynolds and
                                                                                                        Dawn L. McKinley



 _______________________________________________________________________________________________


                                                   IN THE JUDICIAL APPEALS TRIBUNAL
                                                              OF THE CHEROKEE NATION
IN THE MATTER OF THE                                        )
APPEAL OF THE ADVERSE                                     )
ORDER OF THE DISTRICT                                      )                                     Case No. JAT _______
COURT AGAINST KATHY                                        )                            District Court Case No. CV-04-36
REYNOLDS AND                                                        )
DAWN L. MCKINLEY, PRO SE                                )

                                                                        Notice to the Court

Comes now, Kathy Reynolds and Dawn L. McKinley, Pro se, and for their
Petition for Review, in accordance with the rules of the Judicial Appeals Tribunal, do
hereby appoint David Alien Comsilk as our representative (lay advocate) for the purpose
of speaking on our behalf at hearings, accepting court documents, filings and briefs from
the Court and other necessary parties, accepting service, notice and orders and preparing
filings and presenting court documents and all other such requirements as deemed
necessary to properly present our cause before the Honorable Court in the above and
styled case.

Respectfully submitted this ___day of December, 2004.

                                                                                                   _________________
                                                                                                    Kathy Reynolds and
                                                                                                     Dawn L. McKinley
                                                                                                   12104 East 81st St. N.
                                                                                                     Owasso, OK 74055
                                                                      
                                                          


                                                           CERTIFICATE OF MAILING

 
We, the undersigned, do hereby certify that on the ___day of December, 2004,
mailed a true and correct, exact copy of the above and foregoing instrument, via first
class mail, postage paid thereon, to: Todd Hembree, P.O. Box 1353, Stilwell, OK 74960.
                                                                                                  ____________________
                                                                                                       Kathy Reynolds and
                                                                                                        Dawn L. McKinley

        

________________________________________________________________________________________________

                                                     IN THE JUDICIAL APPEALS TRIBUNAL
                                                              OF THE CHEROKEE NATION
IN THE MATTER OF THE                                        )
APPEAL OF THE ADVERSE                                     )
ORDER OF THE DISTRICT                                      )                                     Case No. JAT _______
COURT AGAINST KATHY                                        )                            District Court Case No. CV-04-36
REYNOLDS AND                                                        )
DAWN L. MCKINLEY, PRO SE                                )


                                                                    PETITION FOR REVIEW

Comes now, Kathy Reynolds and Dawn L. McKinley, Pro se, and for their
Petition for Review, states:

1. Petitioner-Appellant Kathy Reynolds is a citizen by blood of the Cherokee Nation
and a resident of Owasso, Oolagah District and receives her mail at 12104 East
81st St. North, Owasso, Oklahoma 74055 and her telephone number is 918-376-
9309.

2. Petitioner-Appellant Dawn L. McKinley is a citizen by blood of the Cherokee
Nation and a resident of Owasso, Oolagah District and receives her mail at 12104
East 81st St. North, Owasso, Oklahoma 74055 and her telephone number is 918-
376-9309.

3. Todd Hembree is a citizen by blood of the Cherokee Nation and a resident of
Tahlequah, Cherokee District and receives his mail at P.O. Box 1353, Stilwell,
Oklahoma 74960.

4. Factual statement:
In an Order filed on December 10, 2004, the Cherokee Nation District Court over
ruled Petitioners' Motion to Dismiss, Motion to Quash and Motion for Summary
Judgment and granted ten days to appeal the decision to the Judicial Appeal
Tribunal.

WHEREFORE, it is prayed that the Order of the District Court be reversed and
the above and styled Case CV-04-36 be dismissed with prejudice.

                                                                    DECLARATIONS
I, Kathy Reynolds, under penalty of the Criminal Code, do hereby declare that the
foregoing instrument and the allegations contained therein are true and correct to the best
of my knowledge and belief.
Kathy Reynolds

I, Dawn L. McKinley, under penalty of the Criminal Code, do hereby declare that
the foregoing instrument and the/allegations contained therein are true and correct to the
best of my knowledge and belief.
Dawn L. McKinley

Respectfully submitted this ___day of December, 2004.

                                                                                                   _________________
                                                                                                    Kathy Reynolds and
                                                                                                     Dawn L. McKinley
                                                                                                   12104 East 81st St. N.
                                                                                                     Owasso, OK 74055
                                                                      
                                                        

                                                           CERTIFICATE OF MAILING

 
We, the undersigned, do hereby certify that on the ___day of December, 2004,
mailed a true and correct, exact copy of the above and foregoing instrument, via first
class mail, postage paid thereon, to: Todd Hembree, P.O. Box 1353, Stilwell, OK 74960.
                                                                                                  ____________________
                                                                                                       Kathy Reynolds and
                                                                                                        Dawn L. McKinley

 


                                                          IN THE CHEROKEE NATION DISTRICT COURBT

IN RE: THE MARRIAGE LICENSE OF
DAWN L. McKINLEY AND
KATHY E. REYNOLDS                                                                                   CASE NO.CV-04-36


ORDER GRANTING ENLARGEMENT OF TIME


Now on this  16TH   day of July, 2004, upon consideration of Movant Motion for
Enlargement of Time the Court finds, for good cause shown, said Motion is well taken and
the same should be and is hereby GRANTED, and the responses to Respondents' Writ of
Mandamus, Motion to Dismiss Response and Motion to Quash presently due on the 27th day
of July 2004, is enlarged until the 6th day of August 2004.

                                      Movant shall mail a copy hereof to all parties of record .
                                      AND IT IS SO ORDERED.
               
                                                                                                     ______________________________
                                                                                                     JUDGE OF THE DISTRICT COURT

 


 

                                                             IN THE CHEROKEE NATION DISTRICT COURT

                                                                                                                                             CASE NO. CV-04-36
KATHY REYNOLDS AND
DAWN MCKINLEY, PRO SE
                                                                          WRIT OF MANDAMUS

COMES NOW Respondents, Kathy Reynolds and Dawn McKinley, pro se, and hereby
pray the honorable District Court will issue a Writ of Mandamus ordering the court
administrator. Lisa Fields, or her representative to comply with Title 43, Section 6, ordering her
to 'at once make record of the marriage certificate in a book kept for that purpose'.
Respondents further sayeth not.
Respectfully submitted,
 
DAWN MCKINLEY, Respondents
12104 East 81st Street North
Owasso, OK 74055




                                                                  IN THE CHEROKEE NATION DISTRICT COURT
KATHY REYNOLDS AND
DAWN MCKINLEY, PROSE                                                                                           CASE NO. CV-04-36

                                                                      MOTION TO DISMISS

 


COMES NOW Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by
blood of the Cherokee Nation, residents ofOwasso, Oolagah District, in response to District
Court Jurisdiction prays the honorable District Court to dismiss and hold for naught case number
CV-04-36 for the following reasons to wit:
1. Petitioner, Todd Hembree, has filed a complaint for which relief cannot be given.
Petitioner has not been harmed by Respondents' marriage certificate and if Petitioner be
successful, the only persons harmed would be the Respondents.
2. Petitioner lacks standing.
3. Petitioner missed the window of opportunity to file against Leslie Penrose's marriage
license. Section 4 of Title 43 grants a 30 day window to appeal Penrose's application. Thirty
days came and went with no appeal from Petitioner.
4. Title 43 has no provision for appeals regarding marriage certificates.
5. The Cherokee Constitution at Article 2 embraces the Indian Civil Rights Act which
provides equal protection of the law in the Cherokee Nation. Under this provision, all laws must
be applied equally to all citizens. Ifhetero-sexual couples have the right to choose their spouses
and be married, then so do homo-sexual couples. If, in fact, the court finds the inference male
and female in Title 43 is applicable then that section of the act would be unconstitutional.
6. The District Court of Cherokee Nation lacks subject matter jurisdiction because
Petitioner is asking the District Court to interpret the law and Constitutional questions reserved
for the Judicial Appeals Tribunal.
WHEREFORE, Respondents pray the District Court of Cherokee Nation will dismiss and
hold for naught all filings and pleadings of Petitioner.
Respondents further sayeth not.

Respectfully Submitted,

 KATHY REYNOLDS and
DAWN MCKINLEY
12104 East 81st Street North
Owasso, OK 74055

 




                                                            IN THE CHEROKEE NATION DISTRICT COURT
Respondents:
KATHY REYNOLDS AND
DAWN MCKINLEY, PRO SE                                                                                CASE NO. CV-04-36

                                                      RESPONSE AND MOTION TO QUASH


COMES NOW Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by
blood of the Cherokee Nation, residents of Owasso, Oolagah District, in response to District
Court Jurisdiction pray the honorable District Court to quash and hold for naught the petition for
declaratory judgement for Todd Hembree, Petitioner, for the following reasons to wit:
1. Title 43, section 2 of the Cherokee Nation Code Annotated, empowers every person
to contract marriage, not restricting their choice of spouse. In section 3, it is clear to identify
those prohibited to marry; first cousins, the insane or idiotic, or those who have a living husband
or wife. It does not say a person cannot choose person of the same gender. Respondents concede
Black's Law does define 'husband' as male and 'wife' as female in portions of Cherokee Act
Title 43. Portions that enable and portions inhibiting do not define gender. The black letter
reading of Section 5, is that the couple take each other as husband and wife, not that they be
husband and wife. Respondents have complied with that in the black letter reading of law in
Cherokee and English language. We concede Black Law's does define wife as female, and
husband as male, however in this instance, we do not concede in applies. If Black Law's applies
at all, it is superceded by the Cherokee Nation Constitution.
The Cherokee Nation Constitution at Article 2 embraces the Indian Civil Rights Act of
1968 which says the laws of Cherokee Nation must be applied EQUALLY among it's citizens
and if a law purports to restrict marriage as only a male and female the law is unequal and is
therefore unconstitutional. If the Court finds that this law is so restricted, then the Court lacks
subject matter jurisdiction because the case then rises to constitutional question which is reserved
for the Judicial Appeals Tribunal. Though the constitution says all officials of Cherokee Nation
shall take an oath swearing to protect and defend the constitution and promote culture, heritage,
and language of the Nation. This court has had no opportunity to hear evidence on whether or not
same sex marriages have ever existed in Cherokee Nation. Without having such information, the
court could not a make reasonable, equitable decision for all parties concerned. Further, the
Court has not heard, nor received, any information regarding the use of Cherokee language and
the interpretation of husband and wife as it is spoken in Cherokee language.
2. Petitioner, Todd Hembree, counsel for Cherokee Nation Tribal Council, has access to
legai documents, resources, internet. Black's Law that respondents do not have. Hembree offers
an Oklahoma court case as guidance to the court. It would be unfair to give Declaratory
Judgement to Petitioner when Respondents have not had equal opportunity to provide legal
history which would provide guidance. Respondents would be irreparably harmed.

Respondents have the right to their day in court and Petitioner is attempting to use his position of
advantage as a Cherokee Nation employee to railroad a baseless claim against Respondents'
marriage.
3. Title 43 has it's origin in 1892 Cherokee Nation. Neither Respondents nor Petitioner are
historians qualified to give courts information allowing the court to determine what Cherokee
Nation was like in 1892. To provide that information, both Respondents and Petitioner must
provide competent witnesses versed in Cherokee history and culture. The Court has not had an
opportunity to hear that information.
4. Petitioner has not provided any documentation to the court of what traditional marriage is
and is not. His inference that Cherokee marriage is the same as Euro-American marriage may be
inaccurate. Respondents hope to provide to the court documentation through witnesses that
traditional Cherokee marriage is not the same as Euro-American marriage and for the Court to
make judgement without that information is impossible.
Respondents believe there is no "loop hole" in Title 43. A black letter reading of the
enabling and prohibiting sections of that code are clear that EVERY person, with only minor
exceptions, may contract a civil Cherokee marriage. The re-adoption of the Cherokee Marriage
Act in 1993 came 17 years after the state of Oklahoma amended it's marriage act to restrict
marriage between a man and woman. Many other states amended their marriage act defining
marriage between a man and a woman. Neither the Cherokee Nation, author of it's law who now
sits as principle chief of Cherokee Nation, operated in a vacuum. It was well know in 1976 and
1993 that same sex couples were seeking legal civil marriage. The Cherokee Nation could have
made it's law identical to Oklahoma law as it has done in most instances. However, the
Cherokee Nation and it's officials are bound by a Constitutional oath to protect, defend, and
promote the heritage, language, and culture of The People. In this instance, Cherokee law
regarding civil marriages does in fact promote the heritage, language and culture of the Cherokee
people by embracing at most, or not prohibiting at least, same sex marriages.
WHEREFORE, Respondents further pray that the Court will consider the following to
wit:
1. Petitioner lacks standing to file such a claim and Respondents pray court will dismiss
all proceedings. Petitioner could have filed an appeal of the marriage license of the minister who
performed the ceremony per the wordings of Title 43 Section 4. Petitioner had 30 days to appeal
the license of Leslie Penrose, a widely known equal rights activist minister whom only prior to
applying for her license, was widely reported in the media as a minister who had gone to San
Francisco, California to perform same sex marriages. Petitioner missed his opportunity to appeal
and Title 43 provides for no other appeal neither of ministers' license, nor of marriage certificate.
2. Petitioner has filed a claim for which relief cannot be given. Petitioner has not
shown in any of his claims or filings how he has been harmed by Respondents' marriage. In
order for the Court to entertain an appeal, the Petitioner would be required to show that some
great irreparable harm would occur if the marriage were finalized by the filing of the certificate.

The only parties who will be harmed if Petitioner's claim is successful is the Respondents.
Respondents further sayeth not.
 

—————————
KATHY REYNOLDS AND
DAWN MCKTNLEY
12104 East 81st Street North
Owasso, OK 74055


 

                                                    IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LICENSE                              
OF DAWN L. McKINLEY AND                              
KATHY E. REYNOLDS                                                                                              CASE NO. CV-04-36   

                                                                             ORDER

           NOW, on this the 10th day of December, 2004, the above captioned and numbered action
comes on for decision as to pending Motion to Dismiss, Motion to Quash and Motion for
Summary Judgment as filed herein by the Respondents heretofore taken under advisement until
this date.

             The Court, having reviewed all briefs and argument filed in this matter, having heard
argument of Counsel and the pro se Respondents, and being otherwise fully advised in the
premises, FINDS AND ORDERS as follows, to-wit:

               1. The Motion to Dismiss, Motion to Quash, and Motion for Summary Judgment are
                    hereby over ruled with exceptions granted to the Respondents.
               2. The Respondents are hereby granted ten days from the date of the filing of this Order
                   within which to appeal the ruling of this court to the Judicial Appeals Tribunal.
              
               3. By virtue of the rulings hereinabove and granting of the right of Interlocutory Appeal,
                   the Pre-Trial Conference heretofore set for the 17th day of December, 2004, is
                   stricken and reset to the 21st day of January, 2005, at 2:30 p.m. if no appeal is filed by
                   the Respondents to the rulings of the Court. If appeal is filed, the Pre Trial
                   Conference is stricken to be reset upon resolution of appeal, if still required.

IT IS SO ORDERED
                                                         ________________________________
                                                         JUDGE OF THE DISTRICT COURT



 

 

 

                                              IN THE CHEROKEE NATION DISTRICT COURT

IN RE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY, PROSE     

                                                                                     

                                
RESPONSE TO MOTION FOR SUMMARY JUDGMENT

 

COMES NOW Todd Hembree, pro se, and hereby responds to respondents' motion for summary judgment, and states as follows:

1. Respondents motion for summary judgment is based on petitioner's failure to

respond to their Motion to Dismiss. The Court will note that Petitioner filed a

/
response to said motion on August 20, 2004, and the Court has given the

Respondents ample time to review said response, setting a hearing on this motion
for
September 17, 2004
. Therefore, respondent's motion for summary judgment
on this issue is moot.

2. Respondents' second reason for Summary Judgment can best be described as a
standing argument. In Petitioner's Response to Respondent's Motion to Dismiss,
he set forth the justification for his standing to pursue this matter. Petitioner
adopts and restates his standing authority as set out in his response
fto
Respondents' Motion to Dismiss as previously filed.

3. Respondents' third argument for Summary Judgment seems to say that Petitioner
is just plain wrong. In response to this, petitioner states that his Declaratory
Judgment Action and his Response to the Motion to Dismiss has
citied Cherokee
Nation Authority supporting his argument, and again Petition adop ts and restates
the arguments set forth in these documents, which are on file.

WHEREFORE, having fully answered Respondents' Motion for Summary Judgment,
Petitioner prays that this Court deny the same and that he be granted any other relief
to which he may be entitled.

Respectfully Submitted,

<>           Todd Hembree
             
Petitioner
         

                                                                           
Certificate of Mailing<>            <>                                                      <>

I hereby certify that on the 27th day of April , 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

<>Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy
Reynolds
12104 E. 81st St. North
Owasso, OK 74055

 

                                                                 

todd HEMBREE
Cherokee Citizen

 

 

 

 

 


                       

 

                                                     IN THE CHEROKEE NATION DISTRICT COURT

 
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY, PROSE    
                                                                                   

                                                             RESPONSE TO MOTION TO DISMISS

COMES NOW, the Petitioner, Todd Hembree, and hereby makes his response to the
Motion to Dismiss filed herein.
To Wit:

1.     Petitioner, Todd Hembree, is a Cherokee Nation citizen. The Judicial Appeals
Tribunal has long recognized citizen standing in various forms. In PhiElips vs.
Eagle, JAT-98-09, this court stated "In summary, the law of this court
generally follows the federal standing doctrine, this court will not allow the
hyper technical federal complexities pertaining to standing prevail over a just
and expeditious resolution of a case on its merits. This court will balance the
guidance provided by Federal and State decisions in the interests of
fundamental justice tempered by prudence and guidance both by the entirety
of our Cherokee Constitution." In Cornsilk vs. Cherokee Nation,
JAT-96-15,
the court held the individual Tribal member had standing to sue the Tribal
Council. Petitioner brings this lawsuit for an interpretation of the laws; of the
Cherokee Nation. It is a highly specific and narrow question that need be
answered. To deny Petitioner standing to bring this important question to the
Court would be to deny the Cherokee People of the opportunity for
clarification of their laws which could result in further questions about the
marriage laws of the Cherokee Nation.

2.     Respondents admit in their responsive pleadings that in Title 43, there are
references to husband and wife, and that the traditional legal definition of
those terms are gender specific. Obviously, this matter has not been filed as a
meritless claim or for the purposes of harassment, it is an opportunity to
resolve a legitimate legal interpretation. Petitioner and Respondents should
want this matter heard not only for themselves but for all of their fellow
Cherokee citizens. It is within the Courts discretion to allow citizen standing.
Petitioner would requests this court, that Respondents motion to dismiss for
standing be denied.

3.     Respondents ask that this matter be dismissed for lack of subject matter
jurisdiction. The District Courts of the Cherokee Nation are part of the
Judicial system of the Cherokee Nation. Just like in any court of the
United
States
, a Constitutional question is not initially filed in the United States

Supreme Court. It first works its way through the District Court system, and
other Appellate courts before reaching the Supreme Court. Likewise, our

district court, being part of our Judicial system has the subject matter
jurisdiction to interpret statutes. If any party is agrieved by the decision of
the District Court then obviously they would have their Appellate rights as in
anv other case. Simply put, not all cases have to be originally filed, not all
cases interpreting statutes or Constitution of the Cherokee Nation have to be
filed with the Judicial Appeals Tribunal. In the alternative, if the court did so
rule, Respondents would ask that the case not be dismissed, but simply
transferred to the Judicial Appeals Tribunal.

4.     The remainder of Respondents reason for dismissal would fail if Petitioner
does have standing.

WHEREFORE PREMISES CONSIDERED, Petitioner would request this court to
deny Respondents motion  to Dismiss and to set this matter for hearing on its merits.
And to whatever relief he may be entitled.

Respectfully Submitted,

<>           Todd Hembree
             
Petitioner

                                   Certificate of Mailing

I hereby certify that on the 19th day of August , 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy Reynolds
12104 E. 81st St. North
Owasso, OK 74055

                                                                

todd HEMBREE
Cherokee Citizen

 


                        IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY   


Respondents:
KATHY REYNOLDS AND
DAWN MCKINLEY, PRO SE

MOTION TO DISMISS

COMES NOW Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by

blood of the Cherokee Nation, residents ofOwasso, Oolagah District, in response to District
Court Jurisdiction prays the honorable District Court to dismiss and hold for naught case number
CV-04-36 for the following reasons to wit:
1. Petitioner, Todd Hembree, has filed a complaint for which relief cannot be given.
Petitioner has not been harmed by Respondents' marriage certificate and if Petitioner be
successful, the only persons harmed would be the Respondents.
2. Petitioner lacks standing.
3. Petitioner missed the window of opportunity to file against Leslie Penrose's marriage
license. Section 4 of Title 43 grants a 30 day window to appeal Penrose's application. Thirty
days came and went with no appeal from Petitioner.
4. Title 43 has no provision for appeals regarding marriage certificates.
5. The Cherokee Constitution at Article 2 embraces the Indian Civil Rights Act which
provides equal protection of the law in the Cherokee Nation. Under this provision, all laws must
be applied equally to all citizens. Ifhetero-sexual couples have the right to choose their spouses
and be married, then so do homo-sexual couples. If, in fact, the court finds the inference male
and female in Title 43 is applicable then that section of the act would be unconstitutional.
6. The District Court of Cherokee Nation lacks subject matter jurisdiction because
Petitioner is asking the District Court to interpret the law and Constitutional questions reserved
for the Judicial Appeals Tribunal.
WHEREFORE, Respondents pray the District Court of Cherokee Nation will dismiss and
hold for naught all filings and pleadings of Petitioner.
Respondents further sayeth not.
 

Respectfully Submitted,

 KATHY REYNOLDS and
DAWN MCKINLEY
12104 East 81st Street North
Owasso, OK 74055


 
 


                                                     IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY    

 

                                                      IN THE CHEROKEE NATION DISTRICT COURT


Respondents:
KATHY REYNOLDS AND
DAWN MCKINLEY, PRO SE 
                                                                                    

                                    
MOTION FOR ENLARGEMENT OF TIME

COMES NOW Petitioner, Todd Hembree and hereby request this Court for an
enlargement of time for which to respond to Respondents' pleadings filed on July 12, 2004
which is currently due on the 27th day of July 2004. In support hereof, Movant shows the
Court as follows:

1. That the present status of this case is set for hearing on August 20, 2004.

2. That this enlargement of time is necessary because the Movant is a candidate for
State Senate District 3, which concludes on
July 27, 2004.

3. That Movant does not have the required time to devote to a Constitutional issue at
this time.

4. For these reasons, the undersigned cannot, consistent with this obligation to
adequately investigate, evaluate or prepare for the pending motions without being allowed
this enlargement of time.

5. That this motion is not made for the purpose of hindrance or delay and will not
prejudice the parties involved in this matter.

WHEREFORE, premises considered Petitioner respectfully requests an enlargement
of time, often days or until August 6, 2004, as hereinabove set forth, and for such other and
further relief to which Movant is entitled, whether legal or equitable.

Respectfully submitted,

TODD HEMBREE, OBA ^14739

Hembree & Hembree

110\V. Choctaw

Tahlequah OK 74464

(918)453-0101 (918) 458-9898 facsimile

 

                                                             Certificate of Mailing

 

I hereby certify that on the 14th day of July , 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy Reynolds
12104 E. 81st St. North
Owasso, OK 74055

                                                                

todd HEMBREE
Cherokee Citizen

 

 


                        IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY    

 

                                                                                        

                                    
PETITION FOR DECLARATORY TUDGMENT

COMES NOW Petitioner, Todd Hembree and hereby request this Court for a
Declaratory Judgment to declare that same sex marriages are not allowed under Title 43
et
seq.,
of the Cherokee Nation Code. In support of this filing petitioner "would state as follows,
to wit:

1. That marriage statutes of the Cherokee Nation are found in Title 43 of the
Cherokee Nation code. Throughout this title there are references to "husband and wife."
Black's Law Dictionary 6th ed. defines husband and wife. A "husband" is defined as "a married
man; one how has a lawful wife living." A "wife" is defined as "a woman united in marriage to
a man."

2. When determining the meaning of language in any statute, it is proper to look at
the statute as a whole and apply the plain language to the relation of society in the time it was
written. Eggers vs. Olson, 104
Okla.
297, 231 P. 483, 486 (1926). As in all cases of statutory
construction, it is the task of this Court to interpret the words of these statutes in light of the
purposes the legislature sought to serve.

3. Title 43 of the Cherokee Nation Code was based upon the Constitution of Laws of
the Cherokee Nation in 1892. Same sex marriages were not part of Cherokee history or
tradition. Cherokee society in 1892 did not allow nor contemplate same sex marriage. This
Court should determine that same sex marriage is not allowed under today's laws.

4. Respondents' actions are an attempt to have the Courts redefine the traditional
concept of marriage within the Cherokee Nation. Simply put Respondents are seeking to take
advantage of a perceived "loop hole" in our statute that if successful would fly in the face of
the traditional definition and understanding of marriage of the Cherokee people.

WHEREFORE, premises considered Petitioner prays this Court to declare that same
sex marriages are not allowed under Cherokee law and that Respondents marriage certificate
is null and void and held for naught.

 

 

               Respectfully submitted,

TODD HEMBREE, OBA ^14739

Hembree & Hembree

110\V. Choctaw

Tahlequah OK 74464

(918)453-0101 (918) 458-9898 facsimile

 

                                                             Certificate of Mailing

 

I hereby certify that on the 16th day of June , 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy Reynolds
12104 E. 81st St. North
Owasso, OK 74055

                                                                

todd HEMBREE
Cherokee Citizen

 

                        IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LISCENSE OF
KATHY REYNOLDS AND                                                         CASE NO. CV-04-36
DAWN MCKINLEY    

<>                                                                                

                      APPLICATION FOR TEMPORARY INJUNCTION

COMES NOW Petitioner Todd Hembree, pro se, and hereby request this Court to
grant a Temporary Injunction enjoining the Respondents from registering any marriage
certificate with the Cherokee Nation District Court Clerk for the reason that Petitioner has
filed an Application for Declaratory Judgment and has given notice to Respondents' Council.
Petitioner would state that if a Respondent is allowed to register their marriage certificate
irreparable harm will occur to the Cherokee Nation and would make Petitioner's Application
for Declaratory Judgment moot. Petitioner would state that time is of the essence in this
matter and that this matter should set before this court at the earliest possible time so that
the merits on Petitioner's Application for Declaretory Judgement may be heard.

 

 

 

               Respectfully submitted,

TODD HEMBREE, Petitioner

110 W. Choctaw

Tahlequah OK 74464

(918)453-0101

 

                                                          

                                                          Certificate of Mailing

 

I hereby certify that on the           day of  June, 2004,1 mailed a true and
correct copy of the foregoing document, with proper postage affixed thereto, to:

 

<>Dawn McKinley
310E.12th Place
Claremore, OK 74017

Kathy
Reynolds
12104 E. 81st St. North
Owasso, OK 74055

                                                                 

todd HEMBREE
Cherokee Citizen

 


                                                    IN THE CHEROKEE NATION DISTRICT COURT


IN RE: THE MARRIAGE LICENSE
OF DAWN L. MCKINLEY AND
KATHY REYNOLDS, PRO SE                                                                              CASE NO. CV-04-36

                                           IN THE CHEROKEE NATION DISTRICT COURT


KATHY REYNOLDS AND
DAWN MCKINLEY, PROSE                                                                                           CASE NO. CV-04-36

RESPONSE AND MOTION TO QUASH

COMES NOW Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by
blood of the Cherokee Nation, residents of Owasso, Oolagah District, in response to District
Court Jurisdiction pray the honorable District Court to quash and hold for naught the petition for
declaratory judgement for Todd Hembree, Petitioner, for the following reasons to wit:
1. Title 43, section 2 of the Cherokee Nation Code Annotated, empowers every person
to contract marriage, not restricting their choice of spouse. In section 3, it is clear to identify
those prohibited to marry; first cousins, the insane or idiotic, or those who have a living husband
or wife. It does not say a person cannot choose person of the same gender. Respondents concede
Black's Law does define 'husband' as male and 'wife' as female in portions of Cherokee Act
Title 43. Portions that enable and portions inhibiting do not define gender. The black letter
reading of Section 5, is that the couple take each other as husband and wife, not that they be
husband and wife. Respondents have complied with that in the black letter reading of law in
Cherokee and English language. We concede Black Law's does define wife as female, and
husband as male, however in this instance, we do not concede in applies. If Black Law's applies
at all, it is superceded by the Cherokee Nation Constitution.

The Cherokee Nation Constitution at Article 2 embraces the Indian Civil Rights Act of
1968 which says the laws of Cherokee Nation must be applied EQUALLY among it's citizens
and if a law purports to restrict marriage as only a male and female the law is unequal and is
therefore unconstitutional. If the Court finds that this law is so restricted, then the Court lacks
subject matter jurisdiction because the case then rises to constitutional question which is reserved
for the Judicial Appeals Tribunal. Though the constitution says all officials of Cherokee Nation
shall take an oath swearing to protect and defend the constitution and promote culture, heritage,
and language of the Nation. This court has had no opportunity to hear evidence on whether or not
same sex marriages have ever existed in Cherokee Nation. Without having such information, the
court could not a make reasonable, equitable decision for all parties concerned. Further, the
Court has not heard, nor received, any information regarding the use of Cherokee language and
the interpretation of husband and wife as it is spoken in Cherokee language.
2. Petitioner, Todd Hembree, counsel for Cherokee Nation Tribal Council, has access to
legai documents, resources, internet. Black's Law that respondents do not have. Hembree offers
an Oklahoma court case as guidance to the court. It would be unfair to give Declaratory
Judgement to Petitioner when Respondents have not had equal opportunity to provide legal
history which would provide guidance. Respondents would be irreparably harmed.

Respondents have the right to their day in court and Petitioner is attempting to use his position of
advantage as a Cherokee Nation employee to railroad a baseless claim against Respondents'
marriage.
3. Title 43 has it's origin in 1892 Cherokee Nation. Neither Respondents nor Petitioner are
historians qualified to give courts information allowing the court to determine what Cherokee
Nation was like in 1892. To provide that information, both Respondents and Petitioner must
provide competent witnesses versed in Cherokee history and culture. The Court has not had an
opportunity to hear that information.
4. Petitioner has not provided any documentation to the court of what traditional marriage is
and is not. His inference that Cherokee marriage is the same as Euro-American marriage may be
inaccurate. Respondents hope to provide to the court documentation through witnesses that
traditional Cherokee marriage is not the same as Euro-American marriage and for the Court to
make judgement without that information is impossible.
Respondents believe there is no "loop hole" in Title 43. A black letter reading of the
enabling and prohibiting sections of that code are clear that EVERY person, with only minor
exceptions, may contract a civil Cherokee marriage. The re-adoption of the Cherokee Marriage
Act in 1993 came 17 years after the state of Oklahoma amended it's marriage act to restrict
marriage between a man and woman. Many other states amended their marriage act defining
marriage between a man and a woman. Neither the Cherokee Nation, author of it's law who now
sits as principle chief of Cherokee Nation, operated in a vacuum. It was well know in 1976 and
1993 that same sex couples were seeking legal civil marriage. The Cherokee Nation could have
made it's law identical to Oklahoma law as it has done in most instances. However, the
Cherokee Nation and it's officials are bound by a Constitutional oath to protect, defend, and
promote the heritage, language, and culture of The People. In this instance, Cherokee law
regarding civil marriages does in fact promote the heritage, language and culture of the Cherokee
people by embracing at most, or not prohibiting at least, same sex marriages.
WHEREFORE, Respondents further pray that the Court will consider the following to
wit:
1. Petitioner lacks standing to file such a claim and Respondents pray court will dismiss
all proceedings. Petitioner could have filed an appeal of the marriage license of the minister who
performed the ceremony per the wordings of Title 43 Section 4. Petitioner had 30 days to appeal
the license of Leslie Penrose, a widely known equal rights activist minister whom only prior to
applying for her license, was widely reported in the media as a minister who had gone to San
Francisco, California to perform same sex marriages. Petitioner missed his opportunity to appeal
and Title 43 provides for no other appeal neither of ministers' license, nor of marriage certificate.
2. Petitioner has filed a claim for which relief cannot be given. Petitioner has not
shown in any of his claims or filings how he has been harmed by Respondents' marriage. In
order for the Court to entertain an appeal, the Petitioner would be required to show that some
great irreparable harm would occur if the marriage were finalized by the filing of the certificate.

The only parties who will be harmed if Petitioner's claim is successful is the Respondents.
Respondents further sayeth not.

Respectfully Submitted,

 KATHY REYNOLDS and
DAWN MCKINLEY
12104 East 81st Street North
Owasso, OK 74055


 

                                           IN THE CHEROKEE NATION DISTRICT COURT


KATHY REYNOLDS AND
DAWN MCKINLEY, PROSE                                                                                           CASE NO. CV-04-36

WRIT OF MANDAMUS

COMES NOW Respondents, Kathy Reynolds and Dawn McKinley, pro se, and hereby
pray the honorable District Court will issue a Writ of Mandamus ordering the court
administrator. Lisa Fields, or her representative to comply with Title 43, Section 6, ordering her
to 'at once make record of the marriage certificate in a book kept for that purpose'
Respondents further sayeth not.

Respectfully Submitted,

 KATHY REYNOLDS and
DAWN MCKINLEY
12104 East 81st Street North
Owasso, OK 74055 




                                                                     NOTICE TO THE COURT
                                                           AND MOTION TO CERTIFY RECORD

         COMES NOW, Respondents, Kathy Reynolds and Dawn L. McKinley, Pro Se,
citizens by blood of the Cherokee Nation, residents of Owasso, Oolagah District, and in
accordance with the Order of the District Court of the Cherokee Nation hereby gives
Notice to the District Court of Respondents' appeal to the Judicial Appeals Tribunal of
the Order of Judge John Cripps to over rule Respondents' Motion to Dismiss, Motion to
Quash and Motion for Summary Judgment. Respondents further move the Court to
certify the entire record in the above and styled case for transfer to the office of the Court
Clerk of the Judicial Appeals Tribunal.

        Respectfully submitted this ___day of December, 2004.

                                                                                                   _________________
                                                                                                    Kathy Reynolds and
                                                                                                     Dawn L. McKinley
                                                                                                   12104 East 81st St. N.
                                                                                                     Owasso, OK 74055
                                                                      
                                                          CERTIFICATE OF MAILING

 
We, the undersigned, do hereby certify that on the ___day of December, 2004,
mailed a true and correct, exact copy of the above and foregoing instrument, via first
class mail, postage paid thereon, to: Todd Hembree, P.O. Box 1353, Stilwell, OK 74960.
                                                                                                  ____________________
                                                                                                       Kathy Reynolds and
                                                                                                        Dawn L. McKinley



 _______________________________________________________________________________________________


                                                   IN THE JUDICIAL APPEALS TRIBUNAL
                                                              OF THE CHEROKEE NATION
IN THE MATTER OF THE                                        )
APPEAL OF THE ADVERSE                                     )
ORDER OF THE DISTRICT                                      )                                     Case No. JAT _______
COURT AGAINST KATHY                                        )                            District Court Case No. CV-04-36
REYNOLDS AND                                                        )
DAWN L. MCKINLEY, PRO SE                                )

                                                                        Notice to the Court

Comes now, Kathy Reynolds and Dawn L. McKinley, Pro se, and for their
Petition for Review, in accordance with the rules of the Judicial Appeals Tribunal, do
hereby appoint David Alien Comsilk as our representative (lay advocate) for the purpose
of speaking on our behalf at hearings, accepting court documents, filings and briefs from
the Court and other necessary parties, accepting service, notice and orders and preparing
filings and presenting court documents and all other such requirements as deemed
necessary to properly present our cause before the Honorable Court in the above and
styled case.

Respectfully submitted this ___day of December, 2004.

                                                                                                   _________________
                                                                                                    Kathy Reynolds and
                                                                                                     Dawn L. McKinley
                                                                                                   12104 East 81st St. N.
                                                                                                     Owasso, OK 74055
                                                                      
                                                          


                                                           CERTIFICATE OF MAILING

 
We, the undersigned, do hereby certify that on the ___day of December, 2004,
mailed a true and correct, exact copy of the above and foregoing instrument, via first
class mail, postage paid thereon, to: Todd Hembree, P.O. Box 1353, Stilwell, OK 74960.
                                                                                                  ____________________
                                                                                                       Kathy Reynolds and
                                                                                                        Dawn L. McKinley

        

________________________________________________________________________________________________

                                                     IN THE JUDICIAL APPEALS TRIBUNAL
                                                              OF THE CHEROKEE NATION
IN THE MATTER OF THE                                        )
APPEAL OF THE ADVERSE                                     )
ORDER OF THE DISTRICT                                      )                                     Case No. JAT _______
COURT AGAINST KATHY                                        )                            District Court Case No. CV-04-36
REYNOLDS AND                                                        )
DAWN L. MCKINLEY, PRO SE                                )


                                                                    PETITION FOR REVIEW

Comes now, Kathy Reynolds and Dawn L. McKinley, Pro se, and for their
Petition for Review, states:

1. Petitioner-Appellant Kathy Reynolds is a citizen by blood of the Cherokee Nation
and a resident of Owasso, Oolagah District and receives her mail at 12104 East
81st St. North, Owasso, Oklahoma 74055 and her telephone number is 918-376-
9309.

2. Petitioner-Appellant Dawn L. McKinley is a citizen by blood of the Cherokee
Nation and a resident of Owasso, Oolagah District and receives her mail at 12104
East 81st St. North, Owasso, Oklahoma 74055 and her telephone number is 918-
376-9309.

3. Todd Hembree is a citizen by blood of the Cherokee Nation and a resident of
Tahlequah, Cherokee District and receives his mail at P.O. Box 1353, Stilwell,
Oklahoma 74960.

4. Factual statement:
In an Order filed on December 10, 2004, the Cherokee Nation District Court over
ruled Petitioners' Motion to Dismiss, Motion to Quash and Motion for Summary
Judgment and granted ten days to appeal the decision to the Judicial Appeal
Tribunal.

WHEREFORE, it is prayed that the Order of the District Court be reversed and
the above and styled Case CV-04-36 be dismissed with prejudice.

                                                                    DECLARATIONS
I, Kathy Reynolds, under penalty of the Criminal Code, do hereby declare that the
foregoing instrument and the allegations contained therein are true and correct to the best
of my knowledge and belief.
Kathy Reynolds

I, Dawn L. McKinley, under penalty of the Criminal Code, do hereby declare that
the foregoing instrument and the/allegations contained therein are true and correct to the
best of my knowledge and belief.
Dawn L. McKinley

Respectfully submitted this ___day of December, 2004.

                                                                                                   _________________
                                                                                                    Kathy Reynolds and
                                                                                                     Dawn L. McKinley
                                                                                                   12104 East 81st St. N.
                                                                                                     Owasso, OK 74055
                                                                      
                                                        

                                                           CERTIFICATE OF MAILING

 
We, the undersigned, do hereby certify that on the ___day of December, 2004,
mailed a true and correct, exact copy of the above and foregoing instrument, via first
class mail, postage paid thereon, to: Todd Hembree, P.O. Box 1353, Stilwell, OK 74960.
                                                                                                  ____________________
                                                                                                       Kathy Reynolds and
                                                                                                        Dawn L. McKinley

 


                                                          IN THE CHEROKEE NATION DISTRICT COURBT

IN RE: THE MARRIAGE LICENSE OF
DAWN L. McKINLEY AND
KATHY E. REYNOLDS                                                                                   CASE NO.CV-04-36


ORDER GRANTING ENLARGEMENT OF TIME


Now on this  16TH   day of July, 2004, upon consideration of Movant Motion for
Enlargement of Time the Court finds, for good cause shown, said Motion is well taken and
the same should be and is hereby GRANTED, and the responses to Respondents' Writ of
Mandamus, Motion to Dismiss Response and Motion to Quash presently due on the 27th day
of July 2004, is enlarged until the 6th day of August 2004.

                                      Movant shall mail a copy hereof to all parties of record .
                                      AND IT IS SO ORDERED.
               
                                                                                                     ______________________________
                                                                                                     JUDGE OF THE DISTRICT COURT

 


 

                                                             IN THE CHEROKEE NATION DISTRICT COURT

                                                                                                                                             CASE NO. CV-04-36
KATHY REYNOLDS AND
DAWN MCKINLEY, PRO SE
                                                                          WRIT OF MANDAMUS

COMES NOW Respondents, Kathy Reynolds and Dawn McKinley, pro se, and hereby
pray the honorable District Court will issue a Writ of Mandamus ordering the court
administrator. Lisa Fields, or her representative to comply with Title 43, Section 6, ordering her
to 'at once make record of the marriage certificate in a book kept for that purpose'.
Respondents further sayeth not.
Respectfully submitted,
 
DAWN MCKINLEY, Respondents
12104 East 81st Street North
Owasso, OK 74055




                                                                  IN THE CHEROKEE NATION DISTRICT COURT
KATHY REYNOLDS AND
DAWN MCKINLEY, PROSE                                                                                           CASE NO. CV-04-36

                                                                      MOTION TO DISMISS

 


COMES NOW Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by
blood of the Cherokee Nation, residents ofOwasso, Oolagah District, in response to District
Court Jurisdiction prays the honorable District Court to dismiss and hold for naught case number
CV-04-36 for the following reasons to wit:
1. Petitioner, Todd Hembree, has filed a complaint for which relief cannot be given.
Petitioner has not been harmed by Respondents' marriage certificate and if Petitioner be
successful, the only persons harmed would be the Respondents.
2. Petitioner lacks standing.
3. Petitioner missed the window of opportunity to file against Leslie Penrose's marriage
license. Section 4 of Title 43 grants a 30 day window to appeal Penrose's application. Thirty
days came and went with no appeal from Petitioner.
4. Title 43 has no provision for appeals regarding marriage certificates.
5. The Cherokee Constitution at Article 2 embraces the Indian Civil Rights Act which
provides equal protection of the law in the Cherokee Nation. Under this provision, all laws must
be applied equally to all citizens. Ifhetero-sexual couples have the right to choose their spouses
and be married, then so do homo-sexual couples. If, in fact, the court finds the inference male
and female in Title 43 is applicable then that section of the act would be unconstitutional.
6. The District Court of Cherokee Nation lacks subject matter jurisdiction because
Petitioner is asking the District Court to interpret the law and Constitutional questions reserved
for the Judicial Appeals Tribunal.
WHEREFORE, Respondents pray the District Court of Cherokee Nation will dismiss and
hold for naught all filings and pleadings of Petitioner.
Respondents further sayeth not.

Respectfully Submitted,

 KATHY REYNOLDS and
DAWN MCKINLEY
12104 East 81st Street North
Owasso, OK 74055

 




                                                            IN THE CHEROKEE NATION DISTRICT COURT
Respondents:
KATHY REYNOLDS AND
DAWN MCKINLEY, PRO SE                                                                                CASE NO. CV-04-36

                                                      RESPONSE AND MOTION TO QUASH


COMES NOW Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by
blood of the Cherokee Nation, residents of Owasso, Oolagah District, in response to District
Court Jurisdiction pray the honorable District Court to quash and hold for naught the petition for
declaratory judgement for Todd Hembree, Petitioner, for the following reasons to wit:
1. Title 43, section 2 of the Cherokee Nation Code Annotated, empowers every person
to contract marriage, not restricting their choice of spouse. In section 3, it is clear to identify
those prohibited to marry; first cousins, the insane or idiotic, or those who have a living husband
or wife. It does not say a person cannot choose person of the same gender. Respondents concede
Black's Law does define 'husband' as male and 'wife' as female in portions of Cherokee Act
Title 43. Portions that enable and portions inhibiting do not define gender. The black letter
reading of Section 5, is that the couple take each other as husband and wife, not that they be
husband and wife. Respondents have complied with that in the black letter reading of law in
Cherokee and English language. We concede Black Law's does define wife as female, and
husband as male, however in this instance, we do not concede in applies. If Black Law's applies
at all, it is superceded by the Cherokee Nation Constitution.
The Cherokee Nation Constitution at Article 2 embraces the Indian Civil Rights Act of
1968 which says the laws of Cherokee Nation must be applied EQUALLY among it's citizens
and if a law purports to restrict marriage as only a male and female the law is unequal and is
therefore unconstitutional. If the Court finds that this law is so restricted, then the Court lacks
subject matter jurisdiction because the case then rises to constitutional question which is reserved
for the Judicial Appeals Tribunal. Though the constitution says all officials of Cherokee Nation
shall take an oath swearing to protect and defend the constitution and promote culture, heritage,
and language of the Nation. This court has had no opportunity to hear evidence on whether or not
same sex marriages have ever existed in Cherokee Nation. Without having such information, the
court could not a make reasonable, equitable decision for all parties concerned. Further, the
Court has not heard, nor received, any information regarding the use of Cherokee language and
the interpretation of husband and wife as it is spoken in Cherokee language.
2. Petitioner, Todd Hembree, counsel for Cherokee Nation Tribal Council, has access to
legai documents, resources, internet. Black's Law that respondents do not have. Hembree offers
an Oklahoma court case as guidance to the court. It would be unfair to give Declaratory
Judgement to Petitioner when Respondents have not had equal opportunity to provide legal
history which would provide guidance. Respondents would be irreparably harmed.

Respondents have the right to their day in court and Petitioner is attempting to use his position of
advantage as a Cherokee Nation employee to railroad a baseless claim against Respondents'
marriage.
3. Title 43 has it's origin in 1892 Cherokee Nation. Neither Respondents nor Petitioner are
historians qualified to give courts information allowing the court to determine what Cherokee
Nation was like in 1892. To provide that information, both Respondents and Petitioner must
provide competent witnesses versed in Cherokee history and culture. The Court has not had an
opportunity to hear that information.
4. Petitioner has not provided any documentation to the court of what traditional marriage is
and is not. His inference that Cherokee marriage is the same as Euro-American marriage may be
inaccurate. Respondents hope to provide to the court documentation through witnesses that
traditional Cherokee marriage is not the same as Euro-American marriage and for the Court to
make judgement without that information is impossible.
Respondents believe there is no "loop hole" in Title 43. A black letter reading of the
enabling and prohibiting sections of that code are clear that EVERY person, with only minor
exceptions, may contract a civil Cherokee marriage. The re-adoption of the Cherokee Marriage
Act in 1993 came 17 years after the state of Oklahoma amended it's marriage act to restrict
marriage between a man and woman. Many other states amended their marriage act defining
marriage between a man and a woman. Neither the Cherokee Nation, author of it's law who now
sits as principle chief of Cherokee Nation, operated in a vacuum. It was well know in 1976 and
1993 that same sex couples were seeking legal civil marriage. The Cherokee Nation could have
made it's law identical to Oklahoma law as it has done in most instances. However, the
Cherokee Nation and it's officials are bound by a Constitutional oath to protect, defend, and
promote the heritage, language, and culture of The People. In this instance, Cherokee law
regarding civil marriages does in fact promote the heritage, language and culture of the Cherokee
people by embracing at most, or not prohibiting at least, same sex marriages.
WHEREFORE, Respondents further pray that the Court will consider the following to
wit:
1. Petitioner lacks standing to file such a claim and Respondents pray court will dismiss
all proceedings. Petitioner could have filed an appeal of the marriage license of the minister who
performed the ceremony per the wordings of Title 43 Section 4. Petitioner had 30 days to appeal
the license of Leslie Penrose, a widely known equal rights activist minister whom only prior to
applying for her license, was widely reported in the media as a minister who had gone to San
Francisco, California to perform same sex marriages. Petitioner missed his opportunity to appeal
and Title 43 provides for no other appeal neither of ministers' license, nor of marriage certificate.
2. Petitioner has filed a claim for which relief cannot be given. Petitioner has not
shown in any of his claims or filings how he has been harmed by Respondents' marriage. In
order for the Court to entertain an appeal, the Petitioner would be required to show that some
great irreparable harm would occur if the marriage were finalized by the filing of the certificate.

The only parties who will be harmed if Petitioner's claim is successful is the Respondents.
Respondents further sayeth not.
 

—————————
KATHY REYNOLDS AND
DAWN MCKTNLEY
12104 East 81st Street North
Owasso, OK 74055


 

    IN THE CHEROKEE NATION DISTRICT COURT

IN RE: THE MARRIAGE LICENSE                              
OF DAWN L. McKINLEY AND                              
KATHY E. REYNOLDS                                                                                              CASE NO. CV-04-36   

                                                                             ORDER

           NOW, on this the 10th day of December, 2004, the above captioned and numbered action
comes on for decision as to pending Motion to Dismiss, Motion to Quash and Motion for
Summary Judgment as filed herein by the Respondents heretofore taken under advisement until
this date.

             The Court, having reviewed all briefs and argument filed in this matter, having heard
argument of Counsel and the pro se Respondents, and being otherwise fully advised in the
premises, FINDS AND ORDERS as follows, to-wit:

               1. The Motion to Dismiss, Motion to Quash, and Motion for Summary Judgment are
                    hereby over ruled with exceptions granted to the Respondents.
               2. The Respondents are hereby granted ten days from the date of the filing of this Order
                   within which to appeal the ruling of this court to the Judicial Appeals Tribunal.
              
               3. By virtue of the rulings hereinabove and granting of the right of Interlocutory Appeal,
                   the Pre-Trial Conference heretofore set for the 17th day of December, 2004, is
                   stricken and reset to the 21st day of January, 2005, at 2:30 p.m. if no appeal is filed by
                   the Respondents to the rulings of the Court. If appeal is filed, the Pre Trial
                   Conference is stricken to be reset upon resolution of appeal, if still required.

IT IS SO ORDERED
                                                         ________________________________
                                                         JUDGE OF THE DISTRICT COURT



                                               IN THE CHEROKEE NATION DISTRICT COURT


KATHY REYNOLDS AND
DAWN MCKINLEY, PROSE                                                                         CASE NO.   CV-04-36


                                                                MOTION TO DISMISS

COMES NOW Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by
blood of the Cherokee Nation, residents ofOwasso, Oolagah District, in response to District
Court Jurisdiction prays the honorable District Court to dismiss and hold for naught case number
CV-04-36 for the following reasons to wit:

           1. Petitioner, Todd Hembree, has filed a complaint for which relief cannot be given.
Petitioner has not been harmed by Respondents' marriage certificate and if Petitioner be
successful, the only persons harmed would be the Respondents.

             2. Petitioner lacks standing.

              3. Petitioner missed the window of opportunity to file against Leslie Penrose's marriage
license. Section 4 of Title 43 grants a 30 day window to appeal Penrose's application. Thirty
days came and went with no appeal from Petitioner.

                4. Title 43 has no provision for appeals regarding marriage certificates.

                 5. The Cherokee Constitution at Article 2 embraces the Indian Civil Rights Act which
provides equal protection of the law in the Cherokee Nation. Under this provision, all laws must
be applied equally to all citizens. Ifhetero-sexual couples have the right to choose their spouses
and be married, then so do homo-sexual couples. If, in fact, the court finds the inference male
and female in Title 43 is applicable then that section of the act would be unconstitutional.

                   6. The District Court of Cherokee Nation lacks subject matter jurisdiction because
Petitioner is asking the District Court to interpret the law and Constitutional questions reserved
for the Judicial Appeals Tribunal.

         WHEREFORE, Respondents pray the District Court of Cherokee Nation will dismiss and
hold for naught all filings and pleadings of Petitioner.

Respondents further sayeth not.

Respectfull Submitted


____________________________
KATHY REYNOLDS and
DAWN MCKINLEY
12104 E 81st North
Owasso, Ok 74055
 



                                                    CHEROKEE NATION DISTRICT COURT

KATHY REYNOLDS AND
DAWN MCKINLEY, PRO SE

                                                                                                                                       CASE NO. CV-04-36

                                  RESPONSE TO PETITIONER'S RESPONSE TO MOTION TO DISMISS

COMES NOW, Respondents, Kathy Reynolds and Dawn McKinley Pro Se, citizens by blood of
the Cherokee Nation, residents ofOwasso, Oolagah District, in response to District Court
Jurisdiction pray the honorable District Court to dismiss and hold for naught case number CV-
04-36 for the following reasons to wit:

                                                             PROCEDUERAL FLAW
                                                               
1.    There are several threshold points in this case which petitioner must survive in order to reach
a hearing on the merits. First, Petitioner, Todd Hembree, must be able to file a petition which is
technically sound. He has not.

Petitioner has filed his case as an Tn Re' action. The Judicial Appeals Tribunal has previously
held that 'In Re' actions are not in compliance with the law and will be dismissed (Grayson v.
Tribal Election Committee, J.AT. No. 87-E2; Exhibit A).

The Grayson case centered around an election controversy with details that need not be reiterated
here. However, two cases filed immediately following that case and consolidated with it, have
bearing on the present case before this Court.

Gloria Matthews and David Cornsilk, both unsuccessful candidates for a seat on the Cherokee
Nation Tribal Council, filed Tn Re' cases asking the JAT to place them on the Council. The
Court dismissed their cause of action on the procedural ground that neither one of them had
named a defendant in their petition as required by the Cherokee Nation Code Annotated.

Petitioner has failed to name a defendant. Respondents, Kathy Reynolds and Dawn McKinley,
have become the defacto defendants because it is their marriage certificate at stake. Respondents
fear it is that no response to a faulty petition might go against them anyway. However,
Respondent's filings do not cure Petitioner's procedural failure. The JAT is the final word on
Cherokee law. The JAT has ruled that Tn Re' cases are procedurally unsound and will be
dismissed

                                                                     STANDING

2. Second, Petitioner lacks standing to bring this suit. The JAT, in numerous cases requiring a
ruling on standing has cast a wide net in it's efforts to include the claims and hear the cases of
various tribal officials, private Cherokee citizens and even non-citizens. One theme continues to
ring loud and clear in every such case: the party filing the case must show harm.

Petitioner, Todd Hembree, in his efforts to prove he has standing grasps onto two cases, which
when analyzed for the Court's holding on standing have more bearing on a case against him than
for him. Comparing apples to oranges cannot get the desired results for Petitioner.

In the case styled Phillips v. Eagle (JAT 98-09-B), a complaint was filed by Harold "Jiggs"
Phillips, Councilor from the Trail of Tears District. His standing to bring the suit was challenged
by Respondent Garland Eagle, Deputy Principal Chief. The Court generally applied the federal
rules of standing, but allowed a great deal of leeway in reaching the conclusion that Phillips did
have standing. The real issue before the JAT in making the determination was whether or not
Phillips had been harmed by Eagle's actions. At no time did the Court rule that Phillips had
standing just because he was a Cherokee citizen. The JAT did not approve his standing just
because he was a tribal member either. His standing was approved because he was a tribal
council member who had been harmed or would be harmed by the actions of the Deputy Chief.
Phillips was able to show that the Defendant's actions constituted a violation of the Separation of
Powers clause of the Cherokee Nation Constitution and was an attempt to usurp the powers of
the Council. Phillips showed that a loss and autonomy by the whole Council was a loss to each
individual councilor and was a threat to the tripartite democratic form of government of the
Cherokee people.

Petitioner, Todd Hembree, has not shown the Court any connection he has to the issue at hand or
how the holding of standing in Phillips v. Eagle would cloak him with standing. Petitioner is not
an elected official of the Cherokee Nation. He is not imbued with any constitutional rights or
responsibilities afforded or required of an elected official of the Nation. Petitioner is, instead, an
employee of the Eegislative Branch of the Cherokee Nation. He is simply a private citizen with
an axe to grind and Phillips v. Eagle clearly does not apply to him.
Petitioner further attempts to cloak himself with standing by invoking the case ofComsilk v.
Council (JAT 96-15). Petitioner is still attempting to compare apples and oranges, although the
oranges are nearer in color, they are still oranges.

The Court had little difficulty finding David A. Comsilk, a private citizen, had an actionable
cause and had the proper standing to bring the case before the Cherokee Court. In a short, but
compelling finding on standing as it relates to the relationship between a private citizen and his
or her elected representatives, the Court found that the 'stake' each private citizen has in voting
of elected officials cloaked the private citizen with standing. Again, in a consistent stream of
Jurisprudence on standing, the Court found that there must be some form of harm proven. In
order for Cornsilk to have a 'stake' in the outcome, there must be harm done or pending which
could be calculated. Petitioner has not shown how he has a stake in the marriage of Respondents
or any other marriage than his own.

Before the marriage of the Respondents, the Petitioner was totally unknown to them and them to
him. Respondents reside in a community over an hour's drive away from Petitioner's home near
Tahlequah. The only real connection to each other is this lawsuit. Petitioner, Todd Hembree,
has not and cannot show that he has suffered any immediate or prospective harm which would be
actionable in this court or any court. Respondents are not elected officials of the Cherokee
Nation. They have no constitutional obligation to Petitioner which would tend to lead the Court
to cast a wide net to find standing for him.

Petitioner, Todd Hembree, seeks to have the District Court find something he knows does not
exist. In fact, Petitioner would have this Court open a Pandora's Box of harmful standing claims
that could destroy the status of civil contracts, not just marriage, in the Cherokee Nation.
Respondents ask the Court to consider the following scenario, which, if Petitioner is found to
have standing could and probably would arise:

             A man dates a woman and they break up. He then marries another woman. The first
             woman, bitter from rejection, files the very same action Todd Hembree has filed here.
             The first woman is using the Court to promote her own hateful and sinister agenda.

Petitioner's case is virtually the same as that described above and could lead to enormous social
ills being visited upon the Cherokee Nation and it's citizens. The first woman filed her case
because she does not like the man's choice of spouse. Petitioner has filed this case because his
own hateful and bigoted ideologies lead him to the conclusion that he does not like Respondents'
choice of spouse. Respondents could even accept that the first woman might have standing to
bring her case because she could show she has been banned by the loss of love and support to the
second woman. Again, Petitioner has absolutely no connection to Respondents which would
tend to show any sort of harm might come to him from Respondents' marriage.

Petitioner's only claim that harm will ensue if Respondents' marriage is finalized is found in his
application for temporary injunction. He says, "irreparable harm will occur to the Cherokee
Nation ..." Petitioner is not the alter ego of the Cherokee Nation. He is not cloaked in any
constitutional authority to represent the Cherokee Nation. In fact, he is nothing more than an
employee of the Cherokee Nation Legislative Branch with responsibility to advise the Council in
matters of law. He has no more authority or standing to protect the Cherokee Nation from harm
or declare what will harm the Cherokee Nation than any other tribal employee or private citizen.

Finally regarding standing. Petitioner has ignored a case ruled on by the JAT which would be a
closer fit to his situation and would be a comparison of apples to apples. That case is Mayes v.
Thompson (JAT 95-15) in which Mayes made a compelling argument for standing but failed to
show how he would be harmed personally by the action of the Respondent, Tommy Thompson,
then the Cherokee Nation Comptroller. Again, we see that the JAT, the final word on Cherokee
law, has found that standing, unique as it is in the Cherokee corpus of jurisprudence, is rooted in
the legal construct that to have an actionable cause, the party must be able to show harm.
Petitioner has not shown or even alleged that he will be harmed by the filing of Respondents'
marriage certificate.

One of the various roles of the Court is to restore that which has been harmed, damaged or
wounded. Petitioner has failed to show harm that would be immediate or speculative. This
Court has nothing to restore, hi fact, a ruling in favor of Petitioner would give him more than he
came with. As legal advisor to the Cherokee Nation Council, Petitioner has the ear of the
Council. Hembree is, in a sense, a-'hyper-citizen'. He has greater access to the legislative
process of the Cherokee Nation, more than any other un-elected Cherokee citizen. His influence
is obvious when on looks at how swiftly amendments were made to Title 43, restricting marriage
in the Cherokee Nation to one man and one woman. That such amendment (Legislative Act 26-
04) reveals that Todd Hembree, Petitioner in this case, was the author of the act. The sponsor of
his amendment was Councilor Linda O'Leary who refused to talk to Respondents on the phone
about the proposed changes in the law, or that there was going to be something introduced that
would change the law. She only speculated to Respondents that "something was going to be
done about it."

Petitioner got most of what he wanted when the Cherokee Nation Council unanimously voted to
incorporate Petitioner's bigotry into Cherokee law by amending the law specifically to deny
marriage to same sex couples. The entire process took less than a month, was not debated at the
committee level and no input was solicited or accepted from Cherokee citizens who might have
an opinion in variance with Hembree's. Thankfully, there are some protections for the Cherokee
people from tribal officials gone amuck. Our Constitution provides that no law shall have
retroactive effect; thus, the amendment to the law could not touch Respondents' certificate.
Petitioner brought this suit in District Court, with all of it's flaws, thinking he could railroad a
cause of action that would finish up his dirty work by destroying the only marriage certificate
issued to a same sex couple. Unable to snuff out the life of the marriage ofKathy Reynolds and
Dawn McKinley, two human beings, he has resorted to a suit of harassment under the guise of
clarification of the law. If it were not for bigoted ideology, there would be no need for
clarification of the law. Petitioner seeks to define Cherokee marriage in the image he likes, no
matter how hurtful that might be to Respondents.

The Cherokee Courts have, as far as a private citizen is concerned, adopted the 'standing'
doctrine as it has been developed under federal law (Mayes v. Thompson, JAT 95-15). To have
standing, Petitioner would have to show an injury in fact which must be actual or imminent and
cannot be too remote or speculative (Lujan v. Defenders of Wildlife, 112, section 2130, 1992).
Petitioner has been wholly unable to show that he has a personal stake in the outcome of
Respondents' marriage (Baker v. Can", 369 US 186, 1962). The JAT, in accordance with
Cherokee legal tradition, attempted to cast a 'wide net' which would have given Mayes standing.
However, like the case at bar here, Mayes was beyond the reach of even the most widely cast net
and so is Petitioner Hembree.

                                                      RESPONSE TO SECTION 2

Respondents DO NOT concede that the 'traditional' legal definition of the term husband as man
and wife as woman as implied in Petitioner's response. Whose tradition is Petitioner talking
about? If he is talking about Euro-American tradition, then he is wrong to assert it in Cherokee
court without first looking to the authentic traditions of the Cherokee people. Certainly, the
courts of the Cherokee Nation can use any legal jurisdiction's rulings and references as guidance.
However, that use must be tempered and molded to fit the dictates of Cherokee tradition, culture,
heritage and language. Tradition is an outgrowth of culture and culture is reflected in the native
language. Respondents have asserted and can show that the terms for spouse in the Cherokee
language are translated into English as, "my companion," "the one I live with," and "my cooker."
These terms are gender neutral. The Constitution of the Cherokee Nation commands that all
elected and appointed officials swear to an oath to promote the traditions, culture, heritage and
language of the Cherokee Nation. In fact, the framers of the Constitution thought it was so
important, that they put it in the Constitution twice. Petitioner seeks to have this Court apply a
legal definition which is outside of authentic Cherokee tradition and language. Petitioner asks
the Judge of this Court to violate his oath of office by applying Euro-American, Judeo/Christian
interpretation when it is obvious that there is an alternative construct which recognizes the
uniqueness of the Cherokee people and our beautiful traditions, culture, heritage and language.
When two interpretations of law are possible, one based on Euro-American tradition and one
based on Cherokee tradition, the Constitution commands that the Cherokee tradition must win. It
is an unfortunate by-product of Cherokee history that Petitioner believes Enro-American,
Judeo/Christian beliefs are Cherokee traditions, but they are not. If that were so, the Cherokees
would be no different from the rest of society and there would be no need for a Cherokee
government. Petitioner's claims are rooted in cultural and historic ignorance and an ethnic bias
that seeks to erode an already fragile remnant of a once vibrant culture that embraced freedom of
choice for the individual in all aspects of his or her personal life.

                                                      SUBJECT MATTER JURISDICTION

Petitioner, once again, asks the Court to ignore Cherokee law in favor of his Euro-American legal
construct. It is obvious from Petitioner's response to Motion to Dismiss that he has had Phillips
v. Eagle before him. That case plainly states the relationship between the District Court and JAT
by reiterating it's previous holding on the subject in Mayes v. Thompson (JAT 95-15). Because
the District Court is a creature of statute and the JAT was created by the Constitution, the JAT
has original jurisdiction in all cases arising in the Cherokee Nation. The Council created the
District Court to hear only specific cases delineated in the Cherokee Code. The JAT has given
limited jurisdiction to the District Court through the Doctrine of Abstention. Rather than rule the
District Court an unconstitutional interference in the judicial branch by the legislative branch, the
JAT has accepted the District Court as a court of concurrent jurisdiction for cases that meet the
test of the legislative act that created it (CNC 11-90). That act only allows the District Court to
hear cases that fall into four categories: 1. crimes, 2. civil cases, 3. domestic relations, and 4.
miscellaneous. Petitioner admits that his case is one designed to "resolve a legitimate legal
interpretation." Therefore, by his own admission, Petitioner defines his case as one in which the

JAT has specifically ruled twice that it shall retain jurisdiction over cases involving violations of
the Constitution, or cases where the Constitution of legislative acts must be interpreted. The
JAT further held that thejurisdictional restrictions on the District Court would be "strictly
construed" so that the constitutional authority of the JAT would not be infringed. Clearly,
Petitioner's layout for hearing this case would infringe upon the constitutional authority of the
JAT.

Petitioner asks the District Court to transfer his case to the JAT if this Court finds it lacks Subject
Matter Jurisdiction. Respondents vociferously object to such a transfer. Petitioner Hembree has
the same appellate rights as Respondents. Respondents have and continue to ask for a clear win
or lose in this matter. If the District Court rules Petitioner lacks standing, then let him appeal that
to the JAT. If this Court rules it lacks Subject Matter Jurisdiction, then let him appeal that to the
JAT. If he wins on those points in the JAT, then the case would proceed in the District Court. If
he loses on those points in the JAT, then his case is dead in the water.

Respondents further sayeth not.
                                                                                                  Respectfully submitted.
                                                                                                   _____________________
                                                                                                   _____________________
                                                                                                   KATHY REYNOLDS and
                                                                                                   DAWN MCKINLEY
                                                                                                   12104 East 81st St. North
                                                                                                   Owasso, OK 74055
CERTIFICATE OF MAILING
We, the undersigned, do hereby certify that on the 2 day of September 2004,1 mailed a
true and correct copy of the above and foregoing instrument, via first class U.S. Mail, postage
prepaid thereon, to: Todd Hembree, PO Box 1353, Stilwell, OK 74960.

 __________________________
__________________________
Kathy Reynolds and
Dawn McKinley