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Is the historic Cherokee courthouse Indian country?

TAHLEQUAH, Okla. - Many members of the Cherokee Nation consider the old Cherokee capitol the heart of the nation. A proposed cross-deputization of nation and county law officers has renewed the question of whether the historic site actually is Indian Country.

Built in a town-square setting, the stately brick building and surrounding square in the center of Tahlequah have been an intricate part of the nation's governmental process. Following the Trail of Tears, the Cherokee set up their government and met on what are the grounds of the old capitol building. Log houses were located along the eastern side of the square and campgrounds were laid out along a nearby creek.

Some of the buildings were burned during the Civil War and in 1867 the National Council made provisions to build the existing courthouse in 1867. The old capitol was finished in 1870, but didn't enjoy smooth sailing for long. Cherokee County used the building as its courthouse following Oklahoma statehood. The building was damaged by fire in 1928 and finally was returned to the Cherokee Nation several years ago, at least that was its understanding.

The current debate over jurisdiction and land definitions began after the arrest of Cherokee Nation Principal Chief Chad Smith in June 1997 during political unrest in the tribe and has become a barrier to cross-deputization of the Cherokee Nation Marshal Service and local law enforcement agencies. This would give the parties investigative and arrest powers in both jurisdictions.

Smith was arrested on the Cherokee Courthouse grounds in 1997 as he and other tribal members tried to regain the courthouse after former Chief Joe Byrd took control of the building. Smith tried to break through police lines and was arrested and charged with assaulting a police officer.

As the political turmoil turned violent, the nation fell into a constitutional crisis. Marshals were fired, Cherokee court judges were fired and accusations of theft and misuse of funds and power filled newspapers and conversations in the Tahlequah area.

Smith filed a civil rights lawsuit against Cherokee County District Attorney Diane Barker Harrold, claiming the county officers who arrested him trespassed on Indian land and lacked jurisdiction.

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The BIA and the U.S. Attorney's office sided with Harrold and said the Cherokee Nation Courthouse Square was not considered Indian Country.

Smith's suit was personal - not brought on behalf of the nation - and he has agreed to drop the lawsuit to gain the support of the Cherokee County district attorney in a cross-deputization agreement between the Cherokee Nation Marshal Service and the county.

"While I do not agree that a personal lawsuit, filed before I became principal chief, should be used as a bargaining chip in an unrelated cross-deputization discussion, I have agreed to the terms that the district attorney outlined to members of the Cherokee Nation Tribal Council," Smith said.

Although Harrold has met with tribal leaders, she has cautioned that she does not have authority to speak for the sheriffs in the counties she represents - three county sheriffs being sued by Smith. She told the Associated Press, "Their lawyers have discouraged cross-deputization until the lawsuits are settled."

The issues have to be resolved by all the parties, she said. "It's not just between Chad Smith and myself."

Smith has said he would drop the suit if the Cherokee County district attorney acknowledges the Cherokee Courthouse as Indian Country from the settlement date forward, pay a fee to Smith's lawyer Bob Greene and recommend cross-deputization of the Cherokee Nation Marshal Service to law enforcement agencies.

In support of his claim that the courthouse is Indian Country is a journal entry from the district court showing that in the case of the City of Tahlequah, Oklahoma vs. The board of County Commissioners of Cherokee County Oklahoma (C-78-327) dated Jan. 4, 1978, the court authorized conveyance of the courthouse land to the United States government "for the acquisition of needful public buildings" via the Cherokee Nation.

Although the Smith lawsuit may be dropped and the Cherokee Nation Courthouse may be considered Indian Country by the county, it is unclear if the 1978 document will supersede recent agreements and settle once and for all, the legal definitions of Indian Country as it pertains to the historic courthouse square.