REPORT Nº 6/97
UNITED STATES (*)
March 12, 1997
ALLEGATIONS IN PETITION
The following allegations of facts which form the basis of the
petition, are referred to in several communications submitted to the
Inter-American Commission on Human Rights ("the
Commission"), June 18, 1992, August 24, 1992, and October 30,
1992. On June 18, 1992,
the Commission received a communication from the Petitioner alleging
violations of the human rights of the Cherokee Nation by the United
States. These allegations
were later reiterated in a petition, which was received by the
Commission, on August 24, 1992, and which was filed on behalf of the
Cherokee Nation west of the Mississippi River. On October 30, 1992, the Commission received additional
information from the petitioner which is included in the allegations
found in the petition.
The Petitioner alleged that a claim was filed on behalf of the
entire Cherokee Nation, west of the Mississippi River against the
United States for its attempt to deny their rights as Indians in their
ancestors' homelands. The
claim arose out of a lawsuit in which the government sued the Cherokee
Nation in the Indian Claims Commission, to quiet the Cherokee Nation's
title in their former homelands.
It is alleged that the government told the Cherokee Nation that
their homelands consisted of one million acres, and that it would pay
them $1.00 per acre for a one million acre claim when, in fact, the
area was in excess of a million acres, and most of the land had a
value of over $100.00 an acre. In
the lawsuit settlement, the government said that their agreement would
be withdrawn if any other Indians objected. The date of the letter containing the lawsuit settlement
agreement between the United States and the Eastern Band of Cherokees,
was "June 15, 1972." This
letter was composed by Kent Frizzell and addressed to Paul M. Niebell.
This letter can be found in the Indian Claims Commission
Decisions, which is available at the Library of Congress, Volume 28,
The Petitioner also alleged, that this agreement was with the
Eastern Band, however, it constituted an acknowledgement of liability
to the Cherokee Nation, for half of the Western Band.
It is also alleged that according to the Bureau of Indian
Affairs, the Eastern Band was that portion of the Cherokee Nation that
refused to forfeit their
lands in the eastern half of the
United States, and
with the demands of the U.S. Government, which were often made at
gunpoint. Furthermore, it is alleged that all of the Indian Nations
recognized that the exclusive negotiating authority rested within the
Federal Government, and not with the States because of this published
rule of law in the United States. It
is also alleged that "when and if the Western Band reaches a
settlement with the United States Government, it will be treated as if
it had been with each state wherein they currently reside, the major
state being Oklahoma."
The Petitioner further alleged, that the western Cherokees
attempted to object with no effect, and the petitioner was compelled to
file a lawsuit against the United States over their objection, in Creek
County in northeast Oklahoma. The
Government chose not to appear in the case nor to defend it.
It is also alleged that the petitioner sought and was granted a
Default Judgment on September 11, 1991, by Judge Thompson, to protect
the Cherokee Nation from the wrongs which had been committed against
them. The petitioner
further alleged that the judgment was a valid judgment which set aside
the Indian claims case which was brought by the United States. It further alleged that there is a global due process rule
which requires a state judge to relinquish jurisdiction over a case
after thirty days, and this rule was published in the case of McNac.
Moreover, the Petitioner alleged, that the U.S. Government
conspired with the Bank of Oklahoma 's attorney, Christopher L. Coyle,
to deny the petitioner due process of law, and that on the 15th day of
May, 1992, Judge Thompson of the District Court continued to deny the
petitioner due process of law when he vacated the previous valid Default
Judgment and stated that his justification for doing so, was defective
service. It is also alleged
that the requirement of service of process on the United States was
waived when it made a General Appearance in the Court in Oklahoma to set
aside the Default Judgment. This
rule of law which cured any defect in service was published by Mr.
Justice Brandeis in Richardson Machinery Co. v. Scott.
It is alleged that the rule stated that "failure to follow
this rule by Oklahoma would constitute a denial of the Cherokee Nation's
right to due process of law."
Furthermore, the Petitioner alleged, that the Cherokee Nation
west of the Mississippi River was denied due process in the State Court
of Oklahoma, in Creek County, and was discriminated against by the Court
because of their Indian Nationality.
The petitioner alleged violations of Article II, (discrimination
against the Indians) Article XXVI, paragraph 1, and Article XVIII, of
the American Declaration of the Rights and Duties of Man.
The petitioner claimed that for five years it has provided legal
services and financial resources in the amount of $50,000 in pursuing
this claim on behalf of the Cherokee Nation, while the Government has
paid the attorney for the eastern Cherokees $100,000.00 to obtain this
fraudulent settlement. The
petitioner claimed that it is unable to exhaust further remedies in the
United States courts, because it has exhausted its resources to the
extent that it has lost home, cars, and its spouse, and cannot give any
more, and nothing more should be expected of it.
Moreover, the petitioner alleged that, in the interim, the
Government has filed several dilatory pleadings in the Creek County
Court in pursuing its tactics. During this period, two-tenths of the organizers of the
Thrift Coop have died.
ARTICLES OF THE AMERICAN DECLARATION ALLEGEDLY VIOLATED
The Petitioner alleged violations of Article II, (right to
equality before the law,) XXVI, paragraph 1, (right to due process of
law,) and Article XVIII, (right to a fair trial.
PETITIONER REQUESTS THAT:
The Commission uses its office to obtain a friendly settlement in
this matter. The Petitioner
offers to accept $100,000,000, which it alleged is substantially less
than the amount dictated by the United States Government in the Court of
Claims suit which attempted to settle this matter.
BEFORE THE COMMISSION
Receipt of Documentary Materials
Upon receipt of the petition dated August 24, 1992, additional
information, and up to the presentment of the petition, the Commission
has complied with the procedural requirements of its Regulations.
It has studied, examined, and considered all information
submitted by the parties.
During this period it communicated with the Petitioner and the
United States Government by notes. It sent the pertinent parts of the petition on October 19,
1992, and additional information to the United states Government with
requests that it supply information which it deemed appropriate to the
allegations referred to in the petition, and additional information, and
which addressed the issue of exhaustion of domestic legal remedies.
The Commission qualified these requests by stating that "the
request for information did not constitute a decision as to the
admissibility of the communication."
Commission received several notes from the United States' Government
including its Reply to the petition, and Rebuttal to the Petitioner's
Response and which are referred to below.
Commission also received several notes from the Petitioner including
documents of Court proceedings in the United States Courts, and its
responses to the United States Government's Reply to the petition, which
are referred to below.
The United States Government's Reply to the Petition
United States Government replied to the petition on March 19, 1993 and
provided the following historical background to the Petition: "From
time immemorial, the entire Cherokee Nation lived east of the
Mississippi River, and resided primarily in what are now the States of
Georgia, Alabama, North Carolina and South Carolina. In the early part of the nineteenth century, a portion of the
Cherokee Nation sought permission to exchange their then present lands
for lands west of the Mississippi River.
Treaties concluded in 1817 and 1819 set aside lands west of the
Mississippi for use of those Cherokees who wished to move westward.
In 1828, the United States agreed to exchange the lands already
ceded to them under the treaties of 1817 and 1819 for other lands west
of the Mississippi located in what was then known as the Indian
western group became commonly known as the "Western
United States stated that in 1835, those Cherokee Indians remaining east
of the Mississippi River (then known as the "Eastern
Cherokees") executed a treaty with the United States whereby all
remaining lands east of the Mississippi River were ceded to the United
States in consideration of $5,000,000.
These Cherokees then moved westward across the Mississippi to
join with the "Western Cherokees."
By 1838, the bulk of the "Eastern Cherokees" had
emigrated westward - some voluntarily, some involuntarily - into the
lands of the "Western Cherokees."
On August 6, 1846, the various groups west of the Mississippi
entered into a treaty with the United States which provided that all
lands west of the Mississippi River ceded to the Western Cherokees would
become the common property of the "whole Cherokee People."
United States also stated that, about 1400 Cherokees refused to emigrate
and remained in North Carolina. This
group became federally recognized as the "Eastern Band of Cherokees
of North Carolina." In
1959, in the case of the Eastern Band of Cherokee Indians v. United
States, this group sued the United States in the Indian Claims
Commission, claiming money owed to the Band for lands ceded to the
United States as a result of twelve treaties concluded by the Cherokee
Nation and the United States between 1785 and 1835. The Commission ordered the matter severed into twelve
separate dockets. After
appropriate pleadings were filed, the Commission ordered all dockets
tried on the issue of liability. The
parties compromised this issue by a joint stipulation filed in each
docket on February 27, 1970. The
matter was then ordered to be tried on the issue of value.
the United States stated that, the two parties entered into
negotiations, and by resolution agreed to a settlement finding in favor
of the Eastern Cherokees of 1,686,595 acres of land at the fair market
value at the time of the taking of $1.10 per acre.
This represented 1/15 of the total land implicated in the twelve
treaties, and reflected the parties agreement that this represented the
fair share of compensation due to the fraction of the Cherokee Nation
which had not migrated to the west.
The Band agreed to accept $1,855,254.50 for its claim.
The offer of the Cherokee's claims was to be withdrawn if any
other party intervened in the case. The compromise settlement was approved by the Commissioner of
Indian Affairs on August 17, 1972.
Funds to satisfy the award were appropriated by the Act of
October 31, 1972.
United States also stated, that the Petitioner's complaint was based on
the following events: On
July 26, 1991, James L. Fisk of Tulsa, Oklahoma, ("plaintiff")
filed a petition on behalf of the First American Thrift Coop. Assn.
v. Commissioner of Indian Affairs in the State of Oklahoma's
District Court of Creek County, Oklahoma, which alleged that the
Cherokee Indians living west of the Mississippi had a valid claim
"for compensation of being deprived of their homelands in North
plaintiff also claimed that the settlement agreement approved by the
Indian Claims Commission in the Eastern Band of Cherokee Indians v.
United States wrongfully excluded participation by the Western Band
of Cherokees and that the negotiations between the Eastern Band of
Cherokees and the United States was kept secret from the Western Band.
The plaintiff sought an injunction against the Commissioner of
Indian Affairs which enjoined him from further negotiations of the
claims by either the Eastern Bands or the Western Bands of Cherokees,
and granted the Western Band of Cherokees one-half of all the funds
authorized to be paid for any claims arising from the treaties.
United States further stated that, the complaint was sent by regular
mail to the Commissioner of Indian Affairs in Washington, D.C.
No summons accompanied the petition, and neither the United
States Attorney for the Northern District of Oklahoma nor the
Attorney General of the United States was served with notice of the
lawsuit as required by federal law.
Because of this lack of proper notice, the Commissioner did not
appear on the date set for the hearing.
On September 11, 1991, Judgment by Default was entered by the
Court for the Petitioner. In
the Affidavit of Judgment filed November 13, 1991, the plaintiff was
awarded judgment in the amount of $27 million.
The United States filed a Motion to vacate the Default Judgment
on March 16, 1992, based upon insufficiency of both process and service.
The motion specifically stated that the complaint had not been
mailed to the Commissioner of Indian Affairs by certified mail with
return receipt requested, that there was no summons attached and that
neither the Attorney General nor the United States Attorney had been
served with a copy of the summons.
the United States stated that, on May 11, 1992, a hearing was held in
the District Court for Creek County, Oklahoma on the motion of the
United states to vacate the Default Judgment.
The Court ruled that it did not have jurisdiction over the
federal defendant in the absence of proper issuance and service of
process and ordered the Default Judgment vacated.
First American Thrift Cooperative Association did not appeal from
that order. The United
States argued that First American Thrift has not pursued these claims
against the United States in any other state or federal court and that
the Petitioner's complaint should be dismissed under Articles 37 and
41(a) of the Commission's Regulations because the Petitioner has failed
to invoke and exhaust available remedies under domestic law.
United States also argued that, the policies and practices of the United
States Government which form the basis of the Petitioner's complaint
before the Commission were initially the subject of litigation in
domestic courts in the United States in the case of First American
Thrift Coop. Assn. v. Commissioner of Indian Affairs.
The Default Judgment in this case, which was in favor of the
Petitioner was vacated, without prejudice, in later judicial
proceedings. First American
Thrift could have filed a timely appeal of the order vacating the
earlier default judgment, but failed to do so.
The Petitioner should be barred from alleging that such a remedy
has been exhausted when the Petitioner has failed to invoke his right to
pursue a domestic remedy at the time when it was available.
Most importantly, the Petitioner continues to have the right to
pursue his initial claim in the Oklahoma District Court.
First American Thrift Cooperative Association has not been
deprived of a forum to examine the merits of its claims.
It simply is required to follow the rules of service and notice
of the forum which it has selected.
the United States argued that the Petitioner should not be allowed to
avoid the exhaustion of domestic remedies required by Article 37(2) of
this Commission's Regulations. First,
domestic law in the United States clearly provided due process of law
for protection of the rights claimed by the petitioner.
A mechanism through which to seek compensation for a wrongful
taking of the kind alleged by the Petitioner, is available.
The availability of this remedy is vividly illustrated by the
earlier Default Judgment in favor of the Petitioner.
Second the Petitioner has not been denied access to domestic
remedies or prevented from exhausting them.
The Petitioner could have filed a timely appeal of the decision
to vacate the Default Judgment, but failed to do so.
In addition, the order vacating the Default Judgment has not
prejudiced the petitioner from once again filing suit in either state or
federal court. Finally,
there has been no unwarranted delay in rendering final judgment under
the aforementioned remedies. The
only delay in the adjudication of the Petitioner's claims is the result
of the Petitioner's failure to pursue available remedies.
the United States argued that, since the Petitioner's claim has not been
fully adjudicated in the domestic courts of the United States, and
because the Petitioner continues to possess a judicial remedy in the
wake of the District Court's decision to vacate the earlier default
judgment, clearly the Petitioner has failed to exhaust judicial remedies
available in this country. Therefore,
the Petitioner fails to satisfy the exhaustion requirement of Article
37, and the United States respectfully requests the Commission to
declare the petition inadmissible, in accordance with Article 41(a).
The United States stated that, because it believes that the
complaint is inadmissible, it did not address in detail the
interpretations of law and factual assertions presented in the petition.
The Petitioner's Response to the Government's Reply to Petition
Petitioner responded to the Government's Reply to the petition in three
communications dated April 14, April 21, and May 10, 1993, and argued
that the United States Government has claimed lack of service as an
excuse for denying the Cherokee Nation a day in court.
The Default Judgment reflected a finding that the defendant (U.S)
had been properly served, the Motion to Vacate the Judgment was filed by
the United States on March 16, 1992, which was 187 days after the
Judgment. In every legal
system in America, judgment becomes final and non-attackable in 30 days.
Furthermore, the enclosed court minute reveals, that the
appearance was general, and both of these general appearances obviated
service or cured any service defects.
Therefore, the United States, cannot be heard on the quest of
whether a sheriff of Creek County, Oklahoma, appeared and personally
served the United States Government.
Petitioner also argued that, on the question of exhausting judicial
remedies, the United States will have to be more specific as to which
remedies it refers to, and whether it will guarantee the rights to
pursue said remedies and cease its harassment of the American Indians in
the pursuit of their remedies. The
United States has for the first time interposed a supposed substantive
defense to the claims of the Western Cherokees, that they have been paid
by the offer of the Oklahoma Territories.
The United States has admitted that the Western Cherokees never
accepted this offer for removal, and it further admitted that these
agreements were broken. The
said admissions can be found in the excellent Government document
entitled "Federal Indian Law."
the Petitioner argued that the United States has stated that it has paid
the Eastern cherokees, and the Western Cherokees and has not denied the
possibility that, the Eastern Cherokees have been paid for the residual.
All of the foregoing representations were resolved in a judgment
of the Court of Creek County, Oklahoma, which the United States
Government submitted to, by the General Appearance of Mr. Pinnell,
United States Assistant District Attorney.
It is interesting to note that the United States Government
stated that it has never revealed a delay of several terms of Court
before it appeared and destroyed the human rights vested in the Indians,
of their right to a day in Court, when it enforced the said final
Petitioner further argued that, if the United States Government was
giving additional remedies in the judicial process, and, which it
specifically enumerated the said rights, it would be necessary for the
United States Government to provide immediate funds for the Petitioner
to exercise these rights, because all of its resources have been
depleted. The compensation
requested would be one-half of the funds which the United States gave
Mr. Nibell for his expenses in representing the Eastern Cherokees. The Petitioner further stated that "it offers to accept,
$100,000,000 as a friendly settlement in this matter."
The Petitioner also stated that it hoped that the United States
Government would see that this amount was substantially less than the
amount dictated by the United States Government in the Court of Claims
suit which attempted to settle this matter. The Petitioner stated that the said amount of $1.00 per acre
for land which was worth $10.00 per acre, of which the aggregate amount
of acres were well in excess of 1,000,000,000 acres.
the Petitioner stated that, insofar as the question of its authority to
represent the Cherokees, the Government has cited 25 USCS Section 81.
The Petitioner argued that the said Statute provided an exception
which constituted sufficient compliance with the section. Petitioner also argued that, it agreed to comply with the
compensation stated, and that it was not necessary to show that a
contract was required because it would show by separate cover that it
was an heir of an enrolled Cherokee named L.B. Butler with roll No.
U.S. Government's Rebuttal to Petitioner's Response
June 23, 1993, the United States replied to Petitioner's response to its
Reply and referred the Commission to its full reply dated March 19,
1993, and reiterated its arguments raised therein.
The United States stated that, the Petitioner has made repeated
references to a "global rule of due process" making any court
judgment final and non-challengeable after thirty days."
It argued that it is not aware of, nor has the Petitioner made
any citation to, any such rule in international law.
The United States argued further that, internal rules of
procedure within some States recognize much longer periods of time for
modification of judgments. The
State of Oklahoma had Jurisdiction in the domestic Western Cherokee
case. The Oklahoma Statues,
Title 12, Section 1031, has a rule which specifically and unequivocally
allows a judge to vacate or modify his judgment upon specific findings.
The Oklahoma provision states that "a district court shall
have the power to vacate or modify its own judgments or orders"
within one to three years of the judgment, which depends upon the
specific error found to have occurred.
United States also argued that, its motion to vacate the Default
Judgment was filed within six months after it was entered, and that it
acted well within the applicable time limits established by Oklahoma law
for such motions. The
Oklahoma court in the Western Cherokee case found that the plaintiff's
failure to follow state law in serving the United states with a
complaint had denied the Government due process, and that this denial of
due process rendered the Default Judgment invalid.
The United States further argued that, the Petitioner's argument
which asserted that "a general appearance" by the United
States had cured any defects in the service of process, was without
merit as demonstrated by the facts of the case.
It stated that, as argued previously in its March 19, 1993
communication, due to inadequate service of process, the United States
made no appearance whatsoever when the Default Judgment was entered on
September 11, 1991. Based
on the erroneous Default Judgment, a garnishment proceeding was
instituted against the Bank of Oklahoma, which was properly dismissed by
the court upon a finding that the bank did not hold any United States
funds at the time.
United States reiterated its argument that, service of the proceedings
on it was defective, and argued that the rules of procedure and due
process applicable in Oklahoma are neither unreasonable nor unusual.
The procedures for proper legal service of the United States
Government in this case, which the Petitioner failed to follow, are
referred to in Title 12, Section 2004 of the Oklahoma statues.
Such procedures, together with the rule which allows the court to
vacate its judgments for cause, are designed and enforced to ensure fair
and accurate judicial verdicts, with due respect to the principle of res
judicata. It also
argued, that the purpose of the procedures, was to increase the
likelihood that a case will be tried on its merits by parties who were
fully prepared to present their cases.
United States rejected the Petitioner's assertion that the Western
Cherokees have been denied their day in court, and argued that it was
the United States which was denied through the plaintiff's unlawful
service, the opportunity to present the merits of its case to the court.
Further, the judgment in this case was set aside without
prejudice to the plaintiff, who is free to re-file the case in Oklahoma,
properly serve the United States with notice, and have its day in court.
The United States reiterated that the Petitioner's claim should
be deemed inadmissible in this case, because it has not yet attempted to
exhaust the available domestic remedies.
It argued that the Petitioner has not only failed to file a
timely appeal after the vacation of the Default Judgment, but has also
chose not to re-file the lawsuit with fair and proper notice to the
United States stated that the Petitioner raised several other issues in
its supplemental communications which the United States wished to
briefly address. First, the
United States is not required to provide the Petitioner with additional
remedies beyond those which remain available to it under U.S. law.
Furthermore, no defendant in our legal system, including the
United States Government, is required to provide advance attorney's fees
to parties wishing to bring suit against it.
It argued that the Petitioner's assertions on these issues are
therefore plainly without merit. Finally, the United States argued that it noted that there
was a significant discrepancy in Petitioner's claim to the value per
acre of the land in question, which has been alternately given at $10
per acre and at $100 per acre. The
United States concluded by stating that it believed that the petition is
inadmissible pursuant to Article 37 of the Commission's Regulations.
COMMISSION'S DECISION ON ADMISSIBILITY
Issues Raised as to Admissibility of Petition
contested issues raised by the parties on admissibility of the petition
are the following:
Has the Petitioner invoked and exhausted domestic remedies?
Does the claim of indigence by the Petitioner excuses it from
invoking and exhausting available domestic remedies?
Commission has reviewed, studied, and considered the record, including
arguments, and exhibits submitted by the parties in this case in
accordance with its Regulations. It
has determined that this petition "is not pending settlement in
another procedure under an international governmental organization of
which the State concerned is a member, and it does not essentially
duplicate a pending petition or already examined and settled by the
Commission or by another international governmental organization of
which the state concerned is a member."
The Commission now examines below whether the Petitioner has invoked and
exhausted domestic remedies pursuant to Article 37 of the Commission's
Regulations, and, or is excused from so doing because of a claim of
Domestic Remedies been Invoked and Exhausted
37 of the Commission's Regulations provides:
a petition to be admitted by the Commission, the remedies under domestic
jurisdiction must have been invoked and exhausted in accordance with the
general principles of international law.
provisions of the preceding paragraph shall not be applicable when:
the domestic legislation of the State concerned does not afford
due process of law for protection of the right or rights that have
allegedly been violated;
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
the petitioner contends that he is unable to prove exhaustion as
indicated in this Article, it shall be up to the government against
which this petition has been lodged to demonstrate to the Commission
that the remedies under domestic law have not previously been exhausted,
unless it is clearly evident from the background information contained
in the petition.
reviewing the record, the Commission notes that the Petitioner has
alleged that a valid Default Judgment was obtained on behalf of the
Cherokee Nation west of the Mississippi river on September 11, 1991, in
the State Court of Oklahoma, against the United States who failed to
appear at the hearing. The
Petitioner also alleged that the United States was properly served in
accordance with the State laws. Petitioner
submitted several exhibits to the Commission, including a copy of a
Court Order dated August 21, 1991, signed by the District Judge of the
District Court of Creek County, in the State of Oklahoma, entitled
"Order-Setting Hearing Date on Application For Preliminary
(Temporary) Restraining Order-Directing Clerk To Issue Notice." The
Order stated that "the verified petition and motions were set down
for hearing at the Courthouse at Sapulpa, Oklahoma, Creek County, State
of Oklahoma, in accordance with this order, on September 11, 1991, at
9.30 a.m., and the Clerk shall also mail or cause to be mailed to the
Defendant a Certified copy of this order by United States Mail
(registered or certified) with return receipt requested.
Address to be supplied by Plaintiff."
Court Order stated that "Copies of this Order to be sent to Mr.
James Fisk, Attorney, and the Commissioner of Indian Affairs." The
record before the Commission also included a document entitled
"Certificate of Service," dated September 3rd, 1991, which
stated the following: "I, Pat Hobbs, Court Clerk of Creek County,
Oklahoma, certify that a true, correct and exact copy of the foregoing
Order Setting Hearing was by me duly enclosed in an envelope addressed
to the above named defendant__, with postage thereon prepaid, and the
same mailed to said defendant__, or service agent of said defendant__,
by certified mail with a request for a return receipt from addressee
only on the 21 day of August, 1991, (and that attached hereto is the
certified mail receipt) and the return receipt card with the date of
receipt of said return card by the Court Clerk endorsed hereon."
The exhibit was signed by the Deputy. The exhibit also had attached to it a copy of a document
entitled "Attached Return Receipt Card Received This 3rd day of
Sept. 1991." The
Article No. is P778-588-964. In the Address section of the Return
Receipt, stated that "Article Addressed to David Matheson,
Department of Interior, Washington, D.C., 20240," and was delivered
record before the Commission reflects that the United States appeared
before the Oklahoma Court and had the Default Judgment set aside on May
11, 1992, and a "Motion To Reconsider" the Court's decision
was filed by the plaintiff before the Court on April 9, 1992, in which
it was argued that the Court should apply the 30 day Rule, and that the
United States had made a "general appearance" before the court
when it appeared, which waved and cured any jurisdictional defects, and
that failure to apply the 30 day rule was a denial of due process.
The Court did not reinstate its Default Judgment of September
Commission also notes the United States's argument which has merit, that
the Petitioner has not invoked and exhausted the available domestic
remedies in the United States, that these remedies were still available
to the Petitioner, and therefore, the Commission should find the
petition inadmissible pursuant to Article 37 of the Commission's
Regulations. In the case of
Velásquez Rodriguez, the Inter-American Court of Human Rights,
in construing the exceptions to the exhaustion of domestic remedies as
provided by Article 46 of the American Convention, stated that:
"the State claiming non-exhaustion has an obligation to prove that
domestic remedies remain to be exhausted and that they are
the Inter-American Court's later decision, it stated that: "The
Court now affirms that if a State which alleges non-exhaustion proves
the existence of specific domestic remedies that should have been
utilized, the opposing party has the burden of showing that those
remedies were exhausted or that the case comes within the exceptions of
Article 46(2). It must not
be rashly presumed that a State party to the Convention has failed to
comply with its obligation to provide effective domestic remedies."
The Inter-American Court of Human Rights further stated that: "The
rule of prior exhaustion of domestic remedies allows the state to
resolve the problem under its internal law before being confronted with
an international proceeding. This
is particularly true in the international jurisdiction of human rights,
because the latter reinforces or complements the domestic
Commission finds that Article 37 of its Regulations is the controlling
instrument in deciding the issue of admissibility and its provisions are
applicable. The Petitioner has not met its burden of sufficiently
demonstrating that the Courts of the United States do not afford due
process of law for protection of its rights.
There are still available, domestic remedies in the United States
to be invoked and exhausted. The
decision of a single judge granting a Default Judgment on a procedural
issue in the Petitioner's favor, and who later vacated the Default
Judgment at the request of the United States based on legal rules, does
not in itself negate the fact that these remedies are still available to
be pursued and exhausted. The
Petitioner has not demonstrated that he has been denied access to the
remedies under domestic law, or he has been prevented by the United
States from exhausting them. Furthermore, he has not demonstrated that there has been
unwarranted delay in rendering a final judgment under the domestic
remedies. According to the
record before the Commission, the United States courts have not rendered
a final decision on the merits, and the United States has argued that
the Petitioner still has this option.
Commission notes that the Petitioner has also argued that it was unable
to pursue, and exhaust the available domestic remedies because it is
indigent. Furthermore, it
has pursued this claim for the past five years, its legal and financial
resources are depleted, and have expended $50,000 in pursuing the said
claim, and in the interim the Government has filed several dilatory
pleadings in the Creek County Court in Oklahoma in pursuing its tactics.
question therefore, is, should the Petitioner be excused from invoking
and exhausting the available domestic remedies because of indigence.
The Inter-American Court of Human Rights considered the question
of "indigence" in an Advisory Opinion requested by the
The Court construed Article 46 of the American Convention which
applies to States Parties, which is similar to Article 37 of the
Commission's Regulations. The
Court stated that:
The Commission states that it has received certain petitions in
which the victim alleges that he has not been able to comply with the
requirement of the exhaustion of remedies set forth in the domestic
legislation because he cannot afford legal representation or, in some
cases, the obligatory filing fees.
Upon applying the foregoing analysis to the examples set forth by
the Commission, it must be concluded that if legal services are required
either as a matter of law or fact in order for a right guaranteed by the
Convention to be recognized and a person is unable to obtain such
services because of his indigence, that person would be exempted from
the requirement to exhaust domestic remedies.
The same would be true of cases requiring the payment of a filing
fee. That is to say, if it
is impossible for an indigent to deposit such a fee, he cannot be
required to exhaust domestic remedies unless the state provides some
Court finally concluded by stating that "Once a State Party has
shown the existence of domestic remedies for the enforcement of a
particular right guaranteed by the Convention, the burden of proof
shifts to the complainant, who must then demonstrate that the exceptions
provided for in Article 46(2) are applicable, whether as a result of
Commission notes that the Petitioner has alleged that it is indigent and
has expended $50,000 in pursuing the claim on behalf of the Cherokee
Nation, however, the record before the Commission is insufficient to
establish that "indigence" prevented the Petitioner from
invoking and exhausting domestic remedies in the United States Courts
pursuant to Article 37 of the Commission's Regulations.
Allegations of indigence are insufficient without other evidence
produced by the Petitioner to prove that he was prevented from invoking
and exhausting the domestic remedies of the United States.
Conclusion: The Commission concludes that this petition is inadmissible
for failure to invoke and exhaust domestic remedies in the United
ON THE FOREGOING REASONS, THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
petition is inadmissible pursuant to Article 37 of the
case be closed.
Report will be transmitted to the parties.
Report will be published in the Commission's Annual Report to the
(*) Commissioners Dean Claudio Grossman and Prof. Robert Goldman took no part in the proceedings, in accordance to Article 19.2 of the Commission's Regulations. Dean Grossman is a U.S. resident, and Professor Goldman is a U.S. national.
United States Government added the following footnote in its reply:
"In his complaint, petitioner purports to represent the
entire Cherokee Nation. Pursuant
to federal law, any one who seeks to represent the Cherokee Nation
in legal or financial matters must have such agreement committed to
a written contract that bears the approval of the Secretary of the
Interior and the Commissioner of Indian Affairs.
See 25 U.S.C. Section 81; 25 C.F.R. Section 89.30.
According to the Department of the Interior, there is no such
contract. Petitioner is
therefore presumed to act alone and all references herein are to
Petitioner in his capacity as an individual."