DOUGLAS DRY, ROSIE BURLISON,
and JUANITA McCONNELL,

Petitioners/Appellants

VS.

CFR COURT OF INDIAN OFFENSES
FOR THE CHOCTAW NATION,
JAMES, WOLFE, Magistrate

Respondents/Appellees

Case No. 98-7027

Robert L. Rabon
RABON, WOLF and RABON
402 East Jackson P.O. Box 726
Hugo, Oklahoma
(580) 326-6427

Attorneys for Respondents/
Appellees

(1) Respondents' Response to Petition for Injunctive and Declaratory Relief, Durant v. Dry, In the Tribal Court for the Choctaw Nation of Oklahoma, Case No. C-96-02

(2) Motion to Dismiss for Lack of Subject Matter Jurisdiction, Choctaw Nation of Oklahoma vs. Dry, et al, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, Case No. CR-9501

(3) Petition for Writ of Prohibition, Exhibit A, Dry, et al vs. Court of Indian Offenses of the Choctaw Nation, In the Court of Indian Offenses for the Chickasaw Agency, No. CIV-96-027

(4) Order, Burlison v. Choctaw Nation, et al., In the District Court of Atoka County, Oklahoma, No. C-96-198

(5) Motion for Disqualification of Trial Judge, Choctaw Nation of Oklahoma v. Dry, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, No. CR-95-01

(6) Motion for Severance, Choctaw Nation of Oklahoma v. Dry, et at, In the
Court of Indian Offenses of the Choctaw Nation of Oklahoma, Nos. CR-95-03,05

(7) Application for Change of Venue, Choctaw Nation of Oklahoma vs. Dry, et al, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, Nos. CR-95-01, 02, 03, 04, 05

(8) Motion to Quash and Set Aside Information, Choctaw Nation of Oklahoma v. Dry, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, Nos. CR-95-01, 02.

(9) Motion to Quash and Set Aside Information, Choctaw Nation of Oklahoma v. Dry, et at, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, No. CR-95-05.

(10) Motion to Withdraw Motion for Disqualification of Trial Judge, Choctaw Nation of Oklahoma v. Dry, et at, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, Nos. CR-95-01, 02, 05

(11) Amended Motion for Disqualification of Tribal Prosecutor, Choctaw Nation of Oklahoma v. Dry, et at, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, Nos. CR-95-01, 05

(12) Second Amended Motion for Disqualification of Tribal Prosecutor, Choctaw Nation of Oklahoma v. Dry, et aL, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, Nos. CR-9501, 05

(13) Motion to Stay Proceedings Pending Appeal, Choctaw Nation of Oklahoma v. McConnell, et aL, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, Nos. CR-95-03, 04, 05.

(14) Special Appearance and Motion to Quash Subpoena, Choctaw Nation of Oklahoma v. Dry, et aL, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, Nos. CR-95-01, 05.

(15) Withdrawal of Subpoenas without Prejudice, Choctaw Nation of Oklahoma v. Dry, In the Court of Indian Offenses of the Choctaw Nation of Oklahoma, Nos. CR-95-01, 05.

RANDAL DURANT, et al.,

Petitioners,

vs.

BOB BURLISON, et al.,

Respondents.

Case No. C-96-02

Comes now, Respondents, Bob Burlison, Doug Dry, Rosie Burlison, and Juanita McConnell, by and through their attorney of record, Scott Kayla Morrison, and state as follows.

A hearing was held on October 12, 1996, at 10 a.m. at Tuskahoma, Oklahoma, on this petition. The second request for relief was basically abandoned by counsel for Randal Durant, et al, due to the lack of power by the court to hold any party or person in contempt. The remaining issues are whether Council Bill 138-91 and 111-92 are constitutional; whether the CFR Court of Indian Offenses of the Choctaw Nation is a federal court and not a tribal court; and whether the Choctaw Council has the authority to contract with the federal government for court and law enforcement programs. All these questions must be answered in the negative.

1. Self- Determination is the federal policy.

It is uncontroverted that the federal policy is self-determination and self-governance of Indian tribes. Congress enacted the Indian Self-Determination Act, 25 USC § 450, et seq., in 1975. The Act was Public Law 93-638, and contracts signed pursuant to this Act are known as PL-638 contracts. The Petitioners' request for declaratory relief is based on two PL-638 contracts between the Bureau of Indian Affairs (BIA) and the Choctaw Nation of Oklahoma for the court and law enforcement programs.1 The will of Congress was expressed in the, Indian Self-Determination Act to allow Indian self-government and self-determination. The will of the President of the United States was expressed in Pres. Memo of April 29, 1994, 59 Fed. Reg. 22951, which states, in part, a strong commitment "to building a more effective day-to-day working relationship reflecting respect for the rights of self-government due the sovereign tribal governments." This memo is found in the notes to 25 USC § 450.

With that said, however, this federal policy is turned on its ear by the assertions of Petitioners. The Council, at the urging of the BIA, has taken the position that the will of Congress and the will of the President of the United States are irrelevant and unimportant. According to the Petitioners, the will of the BIA is the only relevant and important issue in this matter. The will of the BIA is to contract and fund a federal court and law enforcement program in Choctaw Country, administered by the executive branch of government and contracted through the legislature of the Choctaw tribal council, even though we Choctaw voters have denied our government criminal, or even civil, jurisdiction in our Constitution.2 This exercise of power is not allowed by federal acts and is contradictory to federal policy.

This subversion of the will of Congress and the will of the President by the BIA is accomplished by interpreting our constitution, or rather mis-interpreting our constitution. The BIA has broadly interpreted our constitution to mean that the specific language limiting the judicial branch is without effect. The BIA has interpreted our constitution to be void and of no legal effect in its attempts to impose a CFR Court on the Choctaw people. Congress has plenary power over Indian tribes, but not the BIA.3

1 The tribe possibly could contract for a law enforcement program, but the officers could only enforce 25 CFR Part 11 for the CFR Court for the Chickasaw Agency, and not tribal law passed by the Choctaw Council. (back)

2 Respondents have never proposed, as Petitioners allege, that there should be lawlessness on Choctaw lands. The only court available with criminal misdemeanor and civil jurisdiction is a federal CFR Court administered by the BIA under the U.S. government's trust responsibility. (back)

3 Logan v. Andrus, 456 F. Supp. 1318, 1324 (E.D. Okla. 1978). The validity of the Muskogee Area Office of the BIA was at issue in this case. The court said, "As we have seen, the Secretary does not have planary authority over the exercise of sovereign powers by the Indian tribes. We have also seen that those powers are subject to limitation only by the Congress." (back)

2. BIA's "Bureaucratic Imperialism''

The Council and the BIA are attempting to turn back the clock to pre-Harjo v. Keppe, 420 F. Supp. 110 (D. D.C. 1976), times. in Harjo, Judge Bryant said that the Department of Interior had regarded the office of principal chief for the Creek Nation as its own fief. Judge Bryant characterized the actions of the federal officials as an example of "bureaucratic imperialism," and that "the influence and control of the (BIA) over ... the Creek national government between 1920 and 1970 was exercised wholly without the benefit of any specific congressional mandate. " To remedy this situation, the court ordered constitutional reform in the Creek Nation. Harjo was decided one year after the passage of the Indian Self-Determination Act. Congress and Judge Bryant were of the same opinion, that the "fiefdom" of the BIA over Indian internal affairs would not be tolerated.

A year after Harjo was decided, Choctaw and Chickasaw citizens filed a similar action in the same court, using the same attorneys. That case, Morris v. Watt, ordered our constitutional reform. In 1982, Choctaw voters were asked whether to expand the jurisdiction of tribal court to include general civil, criminal and probate jurisdiction. We voted no. Choctaws determined for themselves not to allow our government to have criminal jurisdiction over us. The will of Congress to allow Indian self-government and selfdetermination was expressed in that constitutional election, that is, the exercise and expression of Indian people must be respected by the federal government.

3. BIA's "Bureaucratic Imperialism": Same Song, Second Verse.

Yet, here we are in 1996, with the Council and BIA asserting that the will of the Choctaw people, the will of Congress, and the will of the President of the United States, not only should be, but must be ignored. The Council, at the urging of the BIA, assert that a Choctaw tribally administered federal court may be imposed on the Choctaw people when a tribal court may not be because of Choctaw constitutional limitations. The Council, by signing these contracts with the BIA, has brought back the "bureaucratic imperialism" disallowed in Harjo and Morris v. Watt. The Council is not exercising self-determination by signing PL-638 contracts. The Choctaw people exercised self-determination by not granting criminal jurisdiction over us to our government.4 Until the Choctaw people, with a constitutional amendment, change the limits of our constitution, any action by the Council to subvert Congressional purpose of self-determination is unlawful and void.

The Choctaw Nation Court of Indian Appeals agreed with this position in Morrison v. Choctaw Nation, No. CA-95-01, 23 ILR 6093 (June 1996). "The jurisdiction of the tribal court is defined by the Constitution of the Choctaw Nation of Oklahoma. This exclusive jurisdiction is limited to 'decide disputes arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council.'" The appeals court of the CFR Court of Indian Offenses for the Choctaw Nation has ruled on the jurisdiction of the CFR Court. It is limited to the jurisdiction granted under the constitution. Three attorneys, appointed by the chief to sit on the appeals court, looked at this issue and agreed with the position of Respondents, that the CFR Court does not have general civil or criminal jurisdiction.

4. The BIA Cannot Contract Criminal Jurisdiction to the Choctaw Nation.

The Indian Law Enforcement Reform Act, 25 USC § 2801, allows tribes, the BIA, and state law enforcement agencies to sign interlocal agreements, like the cross-deputization agreements. That Act, however, at 25 USC 2806, very clearly states that provisions of this Act "alter neither the civil or criminal jurisdiction" of any parties. This Act does not confer criminal jurisdiction by contract where none existed before. Even if the BIA could contract its criminal jurisdiction to the Choctaw Nation, it cannot contract its trust responsibilities or Choctaw people to the Choctaw government.

Fred Ragsdale, Jr., was chief arbitrator-negotiator on the constitutional reform ordered

4 Fred Ragsdale, Jr., testified at a March 5, 1995, hearing on Respondents' motion to dismiss in the CFR Court. He said: "It seems to me that I know of no case, I have thought about this, I know of no case in which, nor statute that congress has ever granted an agency that allows them to confer jurisdiction. I know of statutes that allow the tribe and the state to negotiate jurisdiction, for example, but I know of no case that allows a federal agency to confer jurisdiction that was not otherwise there." Transcript Page 21. (back)

by Judge Richey in Morris v. Watt . Ragsdale testified at a March 5, 1995, hearing in
Cho taw Nation v. Dry, Burlison and McConnell. He said:

. [I]f you take the proposition that a federal agency can, though contract, create
jurisdiction, then you have to assume that when a federal agency does not sign
the contract or takes the money away, there is no jurisdiction. If they confer it
by contract, then they can take it away by contract and that just seems to me to
be a terrible principle of federal Indian law. " Transcript pages 21-22.

The proposition advocated by Petitioners is the idea that the BIA can confer criminal jurisdiction by contract, over the vote of the people in the constitutional process. Respondents' agree with Ragsdale, this is a terrible principle for the Choctaw Nation to adopt: the federal government has control over our internal matters by contract. This proposition must be rejected by this court.

5. Federal Trust Responsibility Ignored by the BIA.

The BIA has a trust responsibility of the federal government to provide criminal and civil court for the Choctaws until either the Choctaw people have elected to grant that authority and jurisdiction to their tribal government or Congress has exercised its plenary power by eliminating the U.S. government's trust role in law and order over Indian lands. Congress could expand Public Law 280 to include the Choctaw Nation to be under the state of Oklahoma's criminal and civil jurisdiction. In reality, Congress has partially done this through federal statutes granting state jurisdiction over probates of the Five Tribes, including the Choctaw Nation.

6. Expanding Jurisdiction would Violate the Constitution.

A Court of Indian Offenses, also known as a CFR court, is a court administered by the BIA, and established pursuant to federal regulations. It is not a tribal court.5 Though a CFR court may enforce tribal criminal codes that have been approved by the BIA, a tribal council must have authority under the tribal constitution to adopt criminal codes. Adopting tribal criminal codes and a CFR court enforcing such codes does not convert a CFR court

5 As tribal attorney Bob Rabon pointed out in the Choctaw Criminal Procedure Code, Section 1-4A.
into a tribal court. If the CFR court is a federal court, as alleged by Petitioners, it may not enforce criminal codes adopted by the Choctaw council. The council is without any authority to exercise criminal jurisdiction under the Choctaw Constitution. Since Choctaw citizens have limited criminal jurisdiction of the tribal government, the council cannot pass any resolutions to contract for a CFR court or tribal court. To do so would enlarge criminal jurisdiction and violate the Choctaw Constitution. (back)

7. Separation of Powers.

The BIA was a party to Morris v. Watt , and approved the Choctaw Constitution after it was ratified by the people. Article V, Section 1, of the Choctaw Constitution provides for three distinct and separate departments. No person or persons from one department may exercise the authority of another department. The duties and powers of the judicial department is limited by Article XIII, Section 1, "The judicial authority of the Choctaw nation shall be vested in a Tribal Court... " This article establishes the Judicial Department as the sole judicial authority of the tribal government.

In 1993, the BIA ignored both the intent of Congress in PL 93-638 and the expressed will of the Choctaw people under the constitution that they had established by conspiring with the tribal council to contract the CFR court to the tribal government under CB 111-92. The BIA used the PL 93-638 process to betray the intent of Congress by attempting to confer through contract, civil and criminal authority to a tribal government against the expressed will of the Choctaw people in their constitution, and without the authority of Congress to bypass the recognized right of the Choctaw to self-determination. This is in direct contrast to the directive~ found in Harjo. The Bureau and tribal council have in effect subverted the tribal constitution's separation of powers by establishing a separate court system, contracted by the tribal council and administered by the executive department by contract with the BIA, a move that is clearly illegal under Article V, Section 1.

Respectfully submitted,

I certify that the above and foregoing RESPONDENTS' RESPONSE TO PETITION FOR INJUNCTIVE AND DECLARATORY RELIEF has been mailed to Bob Rabon, Rabon, Wolf & Rabon, PO Box 726, Hugo, Oklahoma 74743, on this 23rd day of October, 1996.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,
Juanita McConnell, and
Rosie Lee Burlison,

Defendants.

COME NOW Douglas Dry, Juanita McConnell, and Rosie Lee Burlison, Defendants in the above styled and numbered cause, by and through their attorney of record, Scott Kayla Morrison, and move to dismiss for lack of subject matter jurisdiction. This Court does not have the authority to hear criminal matters.

WHEREFORE, PREMISES CONSIDRED, the Defendants respectfully prays that the Court dismiss these causes for lack of subject matter jurisdiction.

CERTIFICATE OF SERVICE

I certify that I mailed first class postage prepaid the above and foregoing Motion to Dismiss for Lack of Subject Matter Jurisdiction to Robert L. Rabon on this 26th day of September, 1995.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,
Juanita McConnell, and
Rosie Lee Burlison,

Defendants.

No. CR-95

COME NOW Douglas Dry, Juanita McConnell, and Rosie Lee Burlison, by and through their attorney, Scott Kayla Morrison, and file this Brief In Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction.

1. THE CHOCTAW NATION TRIBAL COURT HAS NO CRIMINAL JURISDICTION

The Constitution of the Choctaw Nation was ratified July 9, 1983. Tribal members, before ratifying the new constitution, voted in an election for Choctaw Constitutional reform pursuant to a federal court order in Morris v. Watt, CIV-77-1667, District Court of the District of Columbia.

The voters cast ballots on eleven fundamental differences between the 1860 Historic Choctaw Constitution and the 1979 Provisional Choctaw Constitution. One question put before the Choctaw voters in May 1983 was "[s]hall the tribal court's jurisdiction be extended to include general civil, criminal and probate matters?" (see Durant Democrat newspaper article, May 25, 1983, attached as Exhibit 1). The Choctaw voters defeated this proposition by 2,567 voting "no," and 1,161 voting "yes." This election was supervised by an observer team from the Department of Interior. Interior also approved the proposed Constitution on June 9, 1983, and verified the ratification of
the Constitution on July 25, 1983. The Choctaw Constitution has not been amended since July 9,
1983. Tribal voters have never extended the judicial department to include a general civil, criminal and probate jurisdiction tribal court. The power of the judicial branch is limited "exclusive jurisdiction to decide dispute, by vote of two (2) members, arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Court." The Choctaw Court of Indian Appeal recently ruled, in Morrison v. Choctaw Nation, CA-01 (September 23, 1995), that the Courts jurisdiction is limited to the above.

The Choctaw people have decided that the sovereignty of the Choctaw Nation does not include sovereignty over the criminal acts of individual Choctaws. Chief Hollis Roberts encouraged the Choctaw voters to defeat the expansion of criminal jurisdiction over tribal members. He submitted a statement to the voters with the 1983 constitutional reform ballot, attached as Exhibit 2, which said: "We have no business getting into the criminal and probate jurisdiction. How would we enforce crimial laws? We have no jails or means to punish people! The state and federal governments do this and I doubt that they would permit us to get involved." The Choctaw voters, at the encouragement of Chief Roberts, have not expanded jurisdiction of this court to include criminal jurisdiction over tribal members. This court has no power or authority to hold Douglas Dry, Juanita McConnell and Rosie Lee Burlison in any criminal action, and any judgment rendered would be null and void.

II. CONCLUSION

The Court of Indian 0ffenses of the Choctaw Nation is without jurisdiction to hear any criminal matters. The Choctaw people voted on this question in 1983 when adopting the current Constitution. The Choctaw people have not amended the Constitution to expand this court's jurisdiction to include criminal matters. Any judgment rendered by this court is null and void.

Respectfully submitted,

I certify that I mailed first class postage prepaid the above and foregoing Brief in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction to Robert L. Rabon on this 26th day of September, 1995.

1. Shall the judicial department be expanded to include an inferior court for each legislative district within the Nation whose Judges shall be elected?

I am definitely against this proposition. We already have a threemember tribal court with enough jurisdiction to decide any question arising in the tribal government. We have absolutely no need for 12 more courts. This would require putting at least twelve more judges on the payroll which would be wasteful and unnecessary. Last year it cost more than $28,000.00 to operate the court. An increase in the number of judges would raise this figure substantially. I urge you to vote no on this question.

2. Shall the Supreme Court Judges be elected by the Tribal Council?

The only Court we have in the Choctaw Nation is also the Supreme Court. It's members are presently appointed by the Chief with the approval of the Tribal Council. Under this procedure, if the Council feels that someone selected as a Judge by the Chief is not qualified, then it can refuse to approve the selection. This allows both the executive and legislative branches to have input into the selection of judges. This is the method used by the federal government and most states. A yes vote on this question will deprive the Chief of any voice in who will be your tribal judges. This would eliminate one of the checks and balances upon which our Constitution was adopted. It is in the interest of the Choctaw people that both the Chief and Council have a voice in who serves on their court. I hope the people vote an overwhelming no on this.

3. Shall the tribal court's jurisdiction be extended to include general civil, criminal and probate matters?

Under the present Constitution, the Court is set up to interpret and decide disputes which involve provisions of the Constitution and laws passed by the council. We have no business getting into the criminal and probate jurisdiction. How would we enforce criminal laws? We have no jails or any means to punish people! The state and federal governments do this and I doubt that they would permit us to get involved. Likewise, the state has probate courts to settle people's estates. No attorney in Oklahoma or any other state would recognize probate proceedings in our tribal court. I urge a no vote.

4. Shall citizens residing outside the Choctaw Nation hold elective office?

This is a very important question. Under the 1860 Constitution, members of the Council had to reside in the Choctaw Nation and the district they represented. Under the 1979 Constitution, there are three at-large Councilmembers who must reside outside the Choctaw Nation. There are good arguments on either side of this question and I will not try to influence the Choctaw people in deciding.

Case. No.
Petition for Writ of
Prohibition

DOUGLAS G. DRY, ROSIE LEE BURLISON, and JUANITA McCONNELL,

Petitioners,

VS.

COURT OF INDIAN OFFENSES OF THE CHOCTAW NATION,

Respondent,

and

CHOCTAW NATION OF OKLAHOMA,

Real Party in Interest.

1. In 1977, the federal district court for the District of Columbia decided Harjo v. Kleppe, 420 F. Supp. 1110 (D.C. 1976). The court held that the 1866 Creek Constitution was still in force and ordered a process to amend the document.

2. In September 1977, Choctaw citizens filed suit against the Choctaw Nation chief, and the Bureau of Indian Affairs (BIA) in the District of Columbia federal district court, Morris v. Andrus. The Choctaws argued that the 1860 Choctaw Constitution was still in effect, using similar arguments that were made in the Harjo v. Kleppe case since the same attorneys which represented the Creek citizens represented the Choctaw citizens.

3. In response to this lawsuit, then-Chief David Gardner submitted a proposed constitution to the BIA for approval. Before it could be approved and ratified, Chief Gardner died and the current chief, Hollis Roberts, was elected in April 1978. Chief Roberts, with the assistance of a Hugo attorney and consultants, wrote another proposed constitution and submitted it for approval by the BIA. This Provisional Constitution was ratified in 1979.

4. With the approval and ratification of the Provisional Constitution, defendants Roberts and the BIA moved to dismiss the lawsuit in Morris v. Andrus. The Chickasaws had a similar lawsuit, Cravatt v. Andrus, which was joined on appeal to become
Morris v. Watt, 640 F.2d 404 (D.C. Cir. 1981).1

5. The Court of Appeals ordered new elections on the constitutional reform process. One election was to be on eleven fundamental differences between the 1860 Constitution and the 1979 Provisional Constitution. Question 3 was: "Shall the tribal court's jurisdiction be extended to include general civil, criminal and probate matters?" Attachment 1. The Choctaw voters rejected this expansion of the tribal court's jurisdiction, at the urging of Chief Roberts. Attachment 2. He said:

Under the present Constitution, the Court is set up to interpret and decide disputes which involve provisions of the Constitution and laws passed by the council. We have no business getting into the criminal and probate jurisdiction. How would we enforce criminal laws? We have no jails or means to punish people! The state and federal governments do this and I doubt that they would permit us to get involved. Likewise, the state has probate courts to settle people's estates. No attorney in Oklahoma or any other state would recognize probate proceedings in our tribal court. I urge a no vote.

6. The 1983 Constitution was approved and ratified without the expansion of the tribal court's jurisdiction. Attachment 3. Article XIII, Section 1 provides that "The Tribal Court shall have exclusive jurisdiction to decide disputes ... arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council." The Constitution has never been amended.

7. As a defendant in the Morris v. Watt lawsuit, the BIA knew or should have known of the jurisdictional limitations of the Choctaw Constitution. The BIA approved the constitution in 1983, with the jurisdictional limitations.

8. At the December 8, 1990 Choctaw Council meeting, the Council discussed signing a contract with the BIA for a law enforcement program. Bob Rabon, tribal attorney was present and told the Council:

The feds have jurisdiction over basic crimes. There are certain major crimes, .... At this time you could have a constitutional amendment voted on by the people to expand the jurisdiction of your court because your court is very limited jurisdiction. Basically, it decides disputes arising out of provisions of the constitution and enactments you pass here.2

Speaker Bertram Bobb responded:

You need to say that further and see what we can do to pass a resolution or something to enact one of these court systems. You might ask the rules and regulations committee to look into this.

Talihina BIA Superintendent Jack Pate was at this council meeting.

1. Lon Kile argued before the Court of Appeals, representing both the Chickasaw governor and the Choctaw chief. The late Kile was a law partner of Bob Rabon, tribal attorney. (back)

9. The Choctaw Council approved contracting the law enforcement program from the BIA on January 15, 1991, with Council Bill 040-91, amended by CB 074-91 dated March 9, 1991, amended by CB 079-91 dated April 13, 1991, amended by CB 138-91 dated August 10, 1991. Attachment 4. The law enforcement program was made a part of Aide to Tribal Government Contract CT G09 T 907 14. Attachment 5.

10. On June 19, 1992, the Choctaw Council passed CB-111-92 to approve a contract with the BIA for a CFR Court, Court of 0ffenses. Attachment 6. The "Tribal Court Program" was made a part of the Aide to Tribal Government Contract CT G09 T 907 14. Attachment 7.

11. On August 31, 1992, the Choctaw Nation submitted a proposal to the BIA to contract for a CFR Court. Attachment 8. On Page 4 of the proposal, "Court of Indian 0ffenses" has been stricken and "a tribal court system" has been handwritten in its place. Attachment 8.

12. A meeting was held on September 14, 1992, at the BIA, with Ed Lowery, Jack Pate, Larry Mings, Jack Chaney, Karen Ketcher and Lorene Phillips present, regarding the Choctaw Nation court contract. Notes from that meeting reflect that the name of the contract would be changed to "tribal court program.!' The program goals would be changed to "provide a tribal court for the Choctaw Nation of Oklahoma." Attachment 9.

13. On October 22, 1992, Dennis Springwater, BIA, wrote a memorandum to the Superintendent, Talihina Agency regarding the FY 1992 Contract Proposal. Springwater said, "When the agreement is written by Area office Staff, we need to omit language which references 'Court of Indian 0ffenses' and or "CFR Court'. The term 'Tribal Court' will be substituted." Attachment 10.

14. The Choctaw Council passed CB-99-94 on May 10, 1994, to

2. Choctaw citizens may not copy the Council meeting minutes. We may only view them at the offIce of the Tribal Council at the BIA building in Talihina, Oklahoma. Copies of the minutes are not attached for that reason. (back)

approve Court Rules for CFR Court of Indian 0ffenses, adopting Muskogee Area Office Court of Indian 0ffenses Court Rules. Attachment 11. The Council changed the statute of limitations for civil suits from three years to six months at this meeting. This was accomplished by amending Section 44 of the Criminal Procedure Code. Attachment 12.

15. At the Council meeting approving this resolution, Attachment 13, Speaker Randal Durant stated:

While we are talking about this, the Chief won his case with the lady at Hugo.3 Doug Dry tells the papers that we're going to bring it up in Tribal Court. Which is fine, but the time limit has expired. But we will find out. They never leave him alone or the Council either. Vote.

16. On September 4, 1995, Douglas Dry, Juanita McConnell and Rosie Lee Burlison were arrested by the Choctaw Nation Police for passing out literature. These arrests were made in spite of the lack of criminal jurisdiction of the Choctaw Nation, and the legitimacy of the Choctaw court. Bob and Robert L. (Bobbie) Rabon, tribal attorney and tribal prosecutor respectively, reported to the press that there was a tribal law banning passing out political literature an tribal lands. Attachment 14. Talihina Superintendent Larry Mings requested this resolution. Attachment 15.

17. Ms. Morrison requested the Choctaw criminal codes and the resolution revoking the right to pass out political literature on Choctaw lands from this office. Karen Ketcher, BIA Tribal Operations Specialist, responded on October 26, 1995, stating that the Choctaw Nation had adopted 25 CFR Part 11 as %their criminal codes by CB-138-91. Attachment 16.

18. Ms. Morrison, in the spring of 1996, made numerous Freedom of information Act requests from the BIA regarding the court and law enforcement programs. The answer to one of her FOIA requests contained a memorandum from Dennis Springwater, dated March 3, 1992, approving the Choctaw Nation's Criminal Code. Attachment 17.

The Choctaw Nation does not have criminal jurisdiction under the 1983 Constitution. Even if the tribe had criminal jurisdiction, the Council passed a resolution to contract for a CFR Court or Court of Indian 0ffenses, but the BIA signed a contract for a "tribal court" with the tribe. This creates a question of exactly what the court is, and what authority does it

3. The "case" referred to by Durant is Kobi Russ v. Choctaw Nation, Hollis Roberts and Linda Higginbotham, a civil sexual harassment suit dismissed from federal district court on sovereign immunity grounds on April 29, 1994.have. Even if the tribe had criminal jurisdiction and a legitimate court, there is a question of whether the criminal codes had ever been approved by the BIA prior to September 4, 1995. (back)

Dated July 22, 1996

1. Shall the judicial department be expanded to include an inferior court for each legislative district within the Nation whose Judges shall be elected?

I am definitely against this proposition. We already have a threemember tribal court with enough jurisdiction to decide any question arising in the tribal government. We have absolutely no need for 12 more courts. This would require putting at least twelve more judges on the payroll which would be wasteful and unnecessary. Last year it cost more than $28,000.00 to operate the court. An increase in the number of judges would raise this figure substantially. I urge you to vote no on this question.

2. Shall the Supreme Court Judges be elected by the Tribal Council?

The only Court we have in the Choctaw Nation is also the Supreme Court. It's members are presently appointed by the Chief with the approval of the Tribal Council. Under this procedure, if the Council feels that someone selected as a Judge by the Chief is not qualified, then it can refuse to approve the selection. This allows both the executive and legislative branches to have input into the selection of judges. This is the method used by the federal government and most states. A yes vote on this question will deprive the Chief of any voice in who will be your tribal judges. This would eliminate one of the checks and balances upon which our Constitution was adopted. It is in the interest of the Choctaw people that both the Chief and Council have a voice in who serves on their court. I hope the people vote an overwhelming no on this.

3. Shall the tribal court's jurisdiction be extended to include general civil, criminal and probate matters?

Under the present Constitution, the Court is set up to interpret and decide disputes which involve provisions of the Constitution and laws passed by the council. We have no business getting into the criminal and probate jurisdiction. How would we enforce criminal laws? We have no jails or any means to punish people! The state and federal governments do this and I doubt that they would permit us to get involved. Likewise, the state has probate courts to settle people's estates. No attorney in Oklahoma or any other state would recognize probate proceedings in our tribal court. I urge a no vote.

4. Shall citizens residing outside the Choctaw Nation hold elective office?

This is a very important question. Under the 1860 Constitution, members of the Council had to reside in the Choctaw Nation and the district they represented. Under the 1979 Constitution, there are three at-large Councilmembers who must reside outside the Choctaw Nation. There are good arguments on either side of this question and I will not try to influence the Choctaw people in deciding.

PREAMBLE

We, the members of the Choctaw Nation of Oklahoma, invoking the will and guidance of Almighty God in order to promote the general welfare, to insure tranquility and to secure to ourselves and our posterity the blessings of our ancestral heritage, culture and tribal sovereignty, do hereby ordain and establish. pursuant to the inherent tribal sovereignty of the Choctaw Nation of Oklahoma, this Constitution for the Choctaw Nation of Oklahoma.

ARTICLE I - NAME AND GEOGRAPHICAL AREA

Section 1. The name of this body shall be "The Choctaw Nation of Oklahoma."

Sect. 2. Where in this Constitution the term "Choctaw Nation" or "the Nation" is used to denote a geographical area, it shall mean the following areas in the State of Oklahoma, to-wit: Beginning at a point on the Arkansas River, 100 paces east of Old Fort Smith, where the western boundary line of the State of Arkansas crosses the said River, and running thence due south to Red River; thence up Red River to the mouth of Island Bayou, where it empties into Red River, about 26 miles on a straight line below the mouth of False Washita; thence running a northwesterly course along the main channel of said Bayou to the junction of the three prongs of said Bayou, nearest the dividing ridge between Washita and Low Blue Rivers, as laid down on Capt. R. L. Hunter's map; thence northerly along the eastern prong of Island Bayou to its source; thence due north to the Canadian River; thence down said River to its junction with the Arkansas River; thence down said River to the place of beginning as set forth in the Treaty of June 22, 1853 (11 Stat. 611).

ARTICLE II-MEMBERSHIP

Section 1. The Choctaw Nation of Oklahoma shall consist of all Choctaw Indians by blood whose names appear on the original rolls of the Choctaw Nation approved pursuant to Section 2 of the Act of April 26. 1906 (34 Stat. 136) and their lineal descendants.

Sect. 2. Except as hereinafter provided, any Choctaw by blood who has elected or shall hereafter elect to become a member of any other tribe or band of Indians may not be a member of this Nation.

Sect. 3. The Tribal Council shall have the power to adopt any Choctaw by blood as a member of the Choctaw Nation who is or has become a member of any other tribe or band of Indians and who applies for membership in the Choctaw Nation; provided, the applicant denounces his membership in such other tribe or band of Indians.

ARTICLE III - RIGHT OF SUFFRAGE

Section 1. All members eighteen (18) years or age and over shall be deemed qualified electors under the authority of this Constitution; provided, they are duly registered to vote.

Sect. 2. No enrolled member of another tribe or person who votes as a citizen or member of another tribe shall be eligible to vote in elections of the Choctaw Nation.

Sect. 3. In all tribal elections by the people, the vote shall be by secret ballot. The Tribal Council shall provide the kind of ballot to be used and make all such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot and shaII provide for the registration of electors.

ARTICLE IV - BILL OF RIGHTS

Section 1. Nothing in this Constitution shall be interpreted in a way which would diminish the rights and privileges that tribal members have as citizens of this Nation, the State of Oklahoma, the United States of America or under any Act of the Congress of the United States.

Sect. 2. No religious test shall ever be required as a qualification to any office of public trust in this Nation.

Sect. 3. The right that every member has to speak, write or publish his opinions on matters relating to the Choctaw Nation shall never be abridged.

Sect. 4. The members shall have the right, in a peaceable manner, to assemble together for their common good, and to apply to those vested with powers of government for redress of grievances or other purposes by address or demonstrance.

Sect. 5. The individually vested property rights of members of the Choctaw Nation of Oklahoma shall not be affected in any way whatsoever by the provisions of this Constitution or any enactments of the Tribal Council.

ARTICLE V - DIVISION OF THE POWERS OF
GOVERNMENT

Section 1. The powers of the government of the Choctaw Nation shall be divided into three (3) distinct departments: Executive, Legislative and Judicial. No person or collection of persons, being one of those departments, shall exercise any power properly attached to either of the others; provided, that the exercise of such powers shall be subject to any limitations imposed by this Constitution and Federal Law.

Sect. 2. The officers of the Nation are to include all elective officials, Assistant Chief and members of the Judicial Department.

ARTICLE Vl - EXECUTIVE DEPARTMENT

Section 1. The supreme executive power of this Nation shall be vested in a chief magistrate, who shall be styled "The Chief of the Choctaw Nation."

Sect. 2. There shaII be an Assistant Chief who shall assist the Chief and perform all duties as assigned to him by the Chief.

Sect. 3. Any member of the Choctaw Nation who is at least thirty (30) years of age and who possesses no less than one-quarter (1/4) degree of Choctaw Indian blood is eligible to become a candidate for the office of Chief or Assistant Chief.

Sect. 4. The Chief and the Assistant Chief must have been residents of the Choctaw Nation for two (2) years or more immediately preceding any election for Chief and must remain residents of the Choctaw Nation during the tenure of their office.

Sect. 5. No person who has been convicted of a felony by a court of competent jurisdiction shall be eligible to hold any elective or appointive office in the Choctaw Nation.

Sect. 6. The Chief shaII be elected for a term of four (4) years which shall commence at twelve (12) noon on the first Monday in September of 1983 and thereafter the terms shaII commence at twelve (12) noon on the first Monday of September of every quadrennium. The Chief shall serve until his successor has been elected and installed. For the initial election of officers under this Constitution, if a runoff election for the office of Chief shall be required the installation will be on October 1, 1983.

Sect. 7. The Assistant Chief shall be appointed by the Chief with the advice and consent of the Tribal Council and may be removed at the discretion of the Chief.

ARTICLE VII- PRIVILEGES, DUTIES AND POWERS
OF EXECUTIVE DEPARTMENT

Section 1. The Chief shall perform all duties appertaining to the office of Chief Executive. He shall sign official papers on behalf of the Nation. He shall take care that the laws be faithfully executed.

Sect. 2. The Chief shall have power to establish and appoint committees, members and delegates to represent the Choctaw Nation with the advice and consent of the Tribal Council. All appointments requiring confirmation shall be presented to the Council within thirty (30) days of the appointment.

Sect. 3. The Chief shall fix and prescribe salaries and allowances for all elected or appointed officials and employees of the Choctaw Nation except the members of the Tribal Council and Tribal Court. Compensation for elected or appointed officials shall not be increased nor diminished during the term for which they are elected or appointed.

Sect. 4. The Chief shall have the power to veto any legislative act, rule or regulation of the Tribal Council and must do so within five (5) working days after passage.

Sect. 5. The Chief shall prepare an annual tribal budget for the expenditure of all funds belonging to or administered by the Choctaw Nation from whatever source derived which shall be submitted to the Tribal Council. The annual budget for tribal trust funds shall be submitted to the Tribal Council at least thirty (30) days prior to the beginning of the tribal fiscal year.

Sect. 6. The Chief shall manage, administer and direct the operation of tribal programs, activities and services and report to the Tribal Council quarterly.

Sect. 7. The Assistant Chief shall serve in the absence or the Chief and when serving shall have all the privileges, duties and powers of the Chief.

Sect. 8. The Chief shall have the power to remove any official appointed by him except for members of the Tribal Court and the Tribal Council.

ARTICLE VIII - LEGISLATIVE DEPARTMENT

Section 1. The legislative authority of the Choctaw Nation shall be vested in the Tribal Council.

See. 2. The Tribal Council shall consist of twelve (12) members, one (1) each to be elected from that part of the following twelve (12) districts which lie within the boundaries set forth in Article I, Section 2 of this Constitution; provided, that the Tribal Council shall have the responsibility for reapportionment based on population when necessary.

1. McCurtain County south of the north line of Township Six (6) South as established by the United States Geological Survey.

2. McCurtain County north of the north line of Township Six (6) South as established by the United States Geological Survey.

3. LeFlore County south of the north line of Township Four (4) North as established by the United States Geological Survey.

4. LeFlore County north of the north line of township Four (4) North as established by the United States Geological Survey.

5. Haskell County

6. Latimer County

7. Pushmataha County

8. Choctaw County

9. Bryan County

10. Atoka County

11. Pittsburg County

12. Coal County and that part of Hughes County south of the Canadian River.

Sect. 3. Members of the Tribal Council must be members of the Nation and must have resided in their respective districts for one (1) year immediately preceding the election. They must remain residents of the district from which they were elected during the tenure of their office.
Candidates for the Tribal Council must be at least one-Fourth (1/4) Choctaw Indian by blood and must be twenty-one (21) years of age or older at the time they file for election.

Sect. 4. Except as provided in the Following Section, members of the Tribal Council shall be elected for a term of four (4) years commencing at twelve (12) noon on the first Monday in September of 1983. Thereafter, terms of office for Council positions shall be for a term of four (4) years and shall commence at twelve (12) noon on the first Monday of the first September after the election for such posts.

Sect. 5. At the hour of twelve (12) noon on October 1, 1983, following the ratification of this Constitution, the successful candidates for Tribal Council shall meet with the elected Chief and the Choctaw Election Commission at the Capital at Tuskahoma at which time and place the Chairperson/Arbitrator of the Commission will place twelve (12) slips of paper in a receptacle, six (6) of which will have the number four (4) on them and six (6) will have the number two (2) written on them. Each slip will be folded so that the number thereon cannot be seen. In the presence of each other and the elected Chief, each successful candidate shall draw one (1) of the slips from the receptacle and the number on the slip each of the successful candidates draws will be the number of years he shall serve during the first term.

ARTICLE IX- PRIVILEGES, DUTIES AND POWERS
OF LEGISLATIVE DEPARTMENT

Section 1. The Tribal Council, at its first regular session each year, shall organize and elect officers from its membership. Officers to be elected are a Speaker, a Secretary and such other officers as the Council shall deem necessary. A recording secretary and a sergeant-at-arms who are not members of the Tribal Council shall be appointed by the Speaker.

Sect. 2, The Speaker shaII preside over all meetings of the Tribal Council.

Sect. 3, The Secretary of the Tribal Council shall maintain all records and enactments of the Tribal Council. They shall be available for inspection by tribal members during normal office hours. All such documents shall remain the property of the Choctaw Nation.

Sect. 4. The Tribal Council shall enact legislation, rules and regulations not inconsistent with this Constitution for the general good of the Choctaw Nation and for the administration and regulation of the affairs of the Choctaw Nation.

Sect. 5 The Tribal Council shall prescribe election procedures and regulations for tribal elections. The Council shall create an election board whose members shaII be appointed by the Chief with the advice and consent of the Tribal Council.

Sect. 6. The Tribal Council shall make decisions pertaining to the acquisition, leasing, disposition and management of tribal property.

Sect. 7. The Tribal Council shall sit as a court in all cases of impeachment.

Sect. 8. The Tribal Council shall be responsible for approving the annual Tribal budget and shall prescribe salaries and allowances for members of the Tribal Council and the Tribal Court.

Sect. 9. No legislation, rule or regulation shall be implemented unless approved by at least seven (7) members of the Tribal Council.

Sect. 10. The Tribal Council shall have power to override the Chief's veto of any of its actions by at least eight (8) members voting in favor of overriding the veto.

Sect. 11. The Council shall act upon all appointments requiring its confirmation within thirty (30) days or less after such appointment is presented for confirmation. The appointment shall become effective without confirmation should the Council fail to so act.

Sect. 12. The selection of legal counsel shall be made by the Chief and approved by the Tribal Council and the Secretary of the Interior. Secretarial approval shall be necessary only as long as such action is required by Federal Law.

ARTICLE X - SESSIONS OF THE TRIBAL COUNCIL

Section 1. Regular sessions or the Tribal Council shall be held on the second Saturday of each month at ten (10) o'clock a.m. at the Choctaw Nation Council House at Tuskahoma, Oklahoma, unless and until otherwise provided by the Tribal Council.

Sect. 2. Eight (8) members must be present to constitute a quorum .

Sect. 3. The Chief may call a special session of the Council at any time he deems necessary by notifying each member by the most expedient way, at least twenty-four (24) hours in advance of the meeting. Inability to notify all members after reasonable efforts shall not prevent such special session from occurring provided a quorum is present.

Sect. 4. All regular and special sessions shall be open to the membership of the Nation. However, except for the Chief or his representative and in cases of impeachment, no person shall address the Council unless he or she has the unanimous approval of the Council members present. The Council may meet in executive session upon an affirmative vote of two-thirds (2/3) of the Tribal Council members present. All votes on any matter shall be in open session and shall be a matter of public record.

Sect. 5. Roll call votes showing how each member of the Tribal Council voted shall be recorded in the minutes of the Tribal Council.

Sect. 6. Robert's Rules of Order shall be followed in conducting Tribal Council business to the extent they do not conflict with this Constitution.

ARTICLE XI - ORDER OF BUSINESS

The order of business at any regular or special session of the Tribal Council shall be as follows:

1. Call to order
2. Roll call and prayer
3. Reading of minutes of last session
4. Unfinished business
5. Reports of Committee
6. New business (Comments from Members)
7. Prayer and adjournment

Provided, however, this order of business may be suspended by the Tribal Council for any meeting.

ARTICLE XII - JUDICIAL DEPARTMENT

Section 1. The judicial authority of the Choctaw Nation shall be vested in a Tribal Court which shall consist or a three (3) member Court appointed by the Chief with the advice and consent of the Tribal Council. One (1) such member, the presiding judge, shall be a lawyer duly licensed to practice before the Supreme Court of Oklahoma. Two (2) members may be non-lawyers.

Sect. 2. Members of the Judicial Department must be residents of the Choctaw Nation and must remain residents of the Choctaw Nation during the tenure of their office. The non-lawyer members must be qualified electors of the Choctaw Nation.

Sect. 3. Tribal Court members shaII be appointed for a term of three (3) years; provided, that initially one (1) member shaII be appointed for one (1) year, one (1) member shall be appointed for two (2) years and one (1) member, who is the presiding judge, shall be appointed for three (3) years to establish staggered terms of office.

Sect. 4. Judges shall not be subject to removal except as provided in Article XV, Section 1.

Sect. 5. Decisions finally determining each cause of action decided by the Tribal Court shaII be recorded in journals kept for that purpose.

ARTICLE XIII- PRIVILEGES, DUTIES AND POWERS
OF JUDICIAL DEPARTMENT

Section 1. The Tribal Court shall have exclusive jurisdiction to decide disputes, by vote of two (2) members, arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council.

Sect. 2. Rules of procedure for the Tribal Court shaII be prescribed be the Tribal Council and shall insure the members due process of law.

Sect. 3. The decision of the Tribal Court shall be final.

ARTICLE XIV - FILLING VACANCIES

Section 1. In the case of the death, resignation or removal or the Chief, the Assistant Chief shall immediately become Chief for the remainder of the unexpired term. In the event the Assistant Chief shall succeed to the office of Chief, he shall appoint a successor Assistant Chief with the advice and consent of the Tribal Council.

Sect. 2. The Chief shall have power within sixty (60) days after a vacancy occurs in the Tribal Council to fill such vacancy for the remainder of the unexpired term. Such appointee shall meet the same qualifications are required of a candidate for election to such office. If a vacancy occurs more than one (l) year before the expiration of such term, a special election shall be called to fill the vacancy.

ARTICLE XV - REMOVAL OF OFFICIALS

Section 1. Impeachment.

(a) Any elected or appointed officer shall be subject to impeachment for willful neglect of duty, corruption in office, habitual drunkenness, incompetency, incapability of performing his duties or committing any offense involving moral turpitude while in office.

(b) Impeachment charges shall be presented to the Judicial Department. The Tribal Court shall, within thirty (30) days examine the evidence. If the Tribal Court determines the evidence or charges are sufficient to warrant further action, it shall conduct a hearing pursuant to this Article. If impeachment charges are brought against any judge, then that judge shall be disqualified to sit on any matters relating to such charges. Then, and in such event, the Chief shall name a substitute judge, with the advice and consent of the Tribal Council, who shall sit as a member of the Court on all matters relating to such impeachment charges.

(c) The Tribal Council shall prescribe such rules and procedures that are necessary to carry into effect the provisions of this Article.

(d) Any officer against whom charges may be preferred shall be entitled to a hearing, by the Tribal Court, under rules and procedures prescribed by the Tribal Council.

(e) Any officer against whom articles of impeachment are referred to the Tribal Council shall be suspended from the exercise or the duties or his office during the pendency of his impeachment.

(f) The Tribal Council shall sit as a court of impeachment and its decision shall be final.

(g) Eight (8) votes shall be required to impeach the official.

(h) Judgment in cases of impeachment shall extend not only to removal from office but also to disqualification from holding any office of honor, trust or profit under this Nation.

Sect. 2. Recall.

(a) Upon receipt of a valid petition, submitted to the Judicial Department, signed by at least forty percent (40%) of the registered voters of the district or area in which the officer was elected, it shall be the duty of the Tribal Council to call and conduct, within sixty (60) days, a recall election.

(b) The election shall be conducted pursuant to rules and regulations prescribed by the Tribal Council. Recall from office shall require a supporting vote of at least fifty-one percent (51%) of the registered voters of the district or area in which the election is conducted.

(c) Only one (1) official shall be subject for recall at any given recall election.

(d) No official shall be subject to recall more than one (1) time during his term of office.

ARTICLE XVI - INITIATIVE AND REFERENDUM

Section 1. The members shall have the right to propose any legislative measure by a petition signed by at least thirty percent (30%) of the registered voters. Each such petition shall contain the entire text of the measure proposed. The petition shall be filed with the Chief at least sixty (60) days prior to the next election for Chief at which time it shall appear on the ballot. If such petition is filed more than one (1) year prior to the next election of Chief, a special election shall be called and conducted. If approved by a majority of those participating in the election, it shall be in full force and effect immediately.

Sect. 2. The Tribal Council by approval of at least eight (8) members, may refer any legislative measure to the members of the Choctaw Nation by directing that said measure be placed on the ballot at the next election for Chief or by calling for a special election. Decisions to refer any matter to the people shall be made at least sixty (60) days prior to the election at which it is presented.

Sect. 3. All petitions for initiative shall be submitted under a cover letter signed by of least three (3) sponsors who are qualified as electors of the Choctaw Nation.

ARTICLE XVII - OATH OF OFFICE
All elected or appointed officials shall take the following oath:
"I,___________ do solemnly swear (or affirm) I will support, obey and defend the Constitutions of the Choctaw Nation of Oklahoma, the State of Oklahoma, and the United States of America and will discharge the duties of my office with fidelity.

I further swear (or affirm) that I will devote my best effort toward the preservation of the heritage and tradition of that Choctaw Nation in order that all mankind may better understand, evaluate, and appreciate this history of its glamourous past and enjoy its brilliant future, so help me God."

ARTICLE XVIII-AMENDMENT

Section 1. Amendments to this Constitution may be proposed by the Tribal Council and shall require at least eight (8) affirmative votes or by a petition containing the entire text of the amendment and signed by not less than thirty percent (30%) of the total number of qualified voters voting in the last Chief's election.

Sect. 2. Adoption by not less than fifty-one percent (51%) of the total number of qualified voters of the Nation voting in the last Chief's election shall be required to amend this Constitution. Amendments shall be effective upon approval by the Secretary of the Interior.

ARTICLE XIX- EFFECTIVE DATE

This Constitution shall become effective when approved by the Secretary of the Interior and ratified by the voters.

GENERAL PROVISION
Pursuant to this Constitution, the initial election of the Chief and members of the Tribal Council shall occur on August 20. 1983, and run-off election, if necessary, on September 17, 1983.

ARTICLE XX - APPROVAL

1. John W. Fritz, Deputy Assistant Secretary - Indian Affairs (Operations), by virtue of the authority granted by the Secretary of the Interior by the Act of June 26, 1936 (49 Stat. 1967), as amended, and delegated to me by 309 D.M. 8.3, do hereby approve this Constitution of the Choctaw Nation of Oklahoma. It shall become effective upon ratification; provided, that nothing in this approval shall be construed as authorizing any action under this document that would be contrary to Federal Law.

(Signed) John W. Fritz
Deputy Assistant Secretary-
Indian Affairs (Operations)

Washington, D.C.
Date: June 9, 1983

ARTICLE XXI - CERTIFICATE OF RATIFICATION

Pursuant to the March 9, 1983, order of the U.S. District Court for the District of Columbia in Morris vs. Watt, Civil No. 77-1667, the Deputy Assistant Secretary - Indian Affairs (Operations) on June 9 , 1983, approved this Constitution and authorized the calling of an election for its ratification to be conducted on July 9, 1983. On July 9, 1983, the qualified voters of the tribe duly ratified/rejected this Constitution by a vote of 2253 for, and 780 against, in an election in which at least thirty percent (30%) of the 6970 entitled to vote cast their ballots, in accordance with Section 3 of the Act of June 26, 1936 (49 Stat. 1967), as amended. The results are hereby certified by members of the Choctaw Election Commission shown below:

On April 29, 1997, this matter came on for hearing. The parties appeared with their attorneys. Testimony was taken, evidence received and arguments heard. Now, after fully considering the matter, the Court makes the following findings and orders:

Plaintiff seeks a declaratory judgment that the crossdeputization contracts signed by the Defendants are violative of his State and Federal due process and equal protection rights. He also seeks injunctive relief. The Defendants move to dismiss.

Because Plaintiff has failed to properly serve the Defendant B.I.A. pursuant to 12 O.S. 2004(C)(1)(c4), its Motion to Dismiss is hereby granted. However, the remaining issues merit more discussion.

The Choctaws are one of the Five Civilized Tribes of Indians. Their 1860 Constitution was the culmination of at least four previous efforts. They had an elected Chief, an organized system of government and a code of laws. Nevertheless, after 1860, the U.S. Government began a systematic policy of termination and assimilation of the Choctaw and other Tribes. In 1898, Congress passed the Curtis Act, 30 Stat. 495, which forced allotment of tribal lands, made all tribal laws unenforceable, and abolished all tribal courts. Tribal self-government became almost non-existent.

Eventually, the mood of Congress and the public changed. In 1936, Congress passed the Oklahoma Indian Welfare Act, 49 Stat. 1967, 25 U.S.C. 501 et-seq., reorganizing the Choctaw Tribe, and authorizing its adoption of a new constitution by popular tribal election. In 1967, Choctaws were again allowed to popularly elect their Chief. 84 Stat. 1091.

In 1980, several Choctaw citizens challenged the 1977 Choctaw Constitution in federal District Court, alleging that the 1860 Constitution was still intact. The federal Court ordered the Choctaws to conduct an election to determine the content of a new constitution. Morris v. Watt. 640 F.2d 404 (D.C.1981) One of the questions submitted was whether "the tribal court's jurisdiction would include general civil, criminal and probate matters" and the majority of electors said "no". A new Constitution was drafted in accordance with the election results, and was approved in 1983. Art. XIII, Sec. 1 of that adopted Constitution provides:

"The Tribal Court shall have exclusive jurisdiction to decide disputes, by vote of two (2) membes, arising

under any provision of this Constitution or any rule or regulation enacted by the Tribal Council."

Generally, criminal prosecution in Indian Country has a checkered history. Before Europeans came, Indians made their own laws and were ruled by them. Williams v. Lee. 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) However, federal incorporation, treaties, and Congressional action gradually limited this inherent power. After the Curtis Act abolished tribal law enforcement and courts, only federal courts could enforcement criminal laws on Indian land, and that enforcement was limited to a dozen major crimes. 18 U.S.C. 1151 et.seq. Most criminal activity in Indian Country went unpunished. In 1953, Congress attempted to fill this gap by Public Law 280 which gave States the authority to assume jurisdiction over all crimes on Indian Land by legislative act. Oklahoma failed to do so. In 1968, Congress amended the Act to require tribal permission. Oklahoma failed to request same.

However, the 1968 Indian Civil Rights Act, 25 U.S.C. 2801 et.seq., did provide a mechanism for tribal law enforcement. The Act began by recognizing that the Tribes "powers of self government" included "all governmental powers possessed by an Indian tribe, executive, legislative, and judicial, and all offices, bodies, and tribunals by and through which they are executed, including... the inherent power of Indian tribes ... to exercise criminal jurisdiction." That Act provided for the establishment of courts of Indian 0ffenses, a model code to govern
the administration of those courts, and a list of civil rights which mirrored many of those rights guaranteed by the U.S. Constitution. It also provided that the model code contain provisions which would "assure that any individual being tried for an offense by a court of Indian 0ffenses will be advised and made
aware of his rights under the United States Constitution, and under
any tribal constitution applicable to such individual."

Thus, C.F.R. courts were clearly tribal courts regulated by federal law. In 1991, the Choctaws approved a contract with the B.I.A. for a law enforcement program pursuant to this Act, passed a code of offenses, and established a C.F.R. court.

However, C.F.R. Courts were not a complete answer to crimes on tribal land. The Federal government, State and Tribes all had a portion of criminal jurisdiction, often depending on whether the land was "Indian Country" --- a somewhat ambiguous term. Oklahoma had few reservations. Eastern Oklahoma, in particular, was a patchwork of checkerboard tracts and allotments scattered over large areas. Federal officers were few in number, tribal law officers were almost non-existent, and State and local officers
could never be sure of their jurisdictional authority. While State officers could arrest persons for federal offenses, they had no authority to arrest or prosecute crimes within Indian jurisdiction. Langley v. Ryder "' 778 F.2d 1092 (5th Cir.1985) State and local law officers often acted at their own peril of being sued for exercising excessive jurisdiction. Ross v. Neff- 905 F.2d 1349 (10th Cir. 1990) Consequently, many Indian citizens had little protection from lawless acts.

To solve this problem, Congress passed the Indian Law Enforcement Reform Act, 25 U.S.C. 2801 et.seq. That Act authorized Tribes to enter into agreements with Federal, tribal, State or other government agencies for:

"the use of the personnel or facilities of federal, tribal, state or other government agency to aid in the enforcement or carrying out in Indian Tribe that has authorized the Secretary to enforce tribal laws." To facilitate such agreements, the Oklahoma Legislature passed the State Tribal Relations Act, 74 O.S. 1221 et.seq. which authorized the State to enter into cooperative agreements with the Tribes, and the Interlocal Cooperation Act, 74 O.S. 1001 et.seq., which authorized it to enter into cooperative agreements with federal, state, county and city agencies.

In 1994, the Defendants in this case approved a crossdeputization agreement to improve law enforcement in the State and in Indian Country. That Agreement states in part:

"All the parties to this Agreement recognize that when law enforcement officers arrest a criminal suspect, the officers may not know whether the suspect or the victim is an Indian or whether the arrest or the suspected crime has occurred in Indian Country ... The parties further expressly recognize the manifest intent of the Indian Law Enforcement Act to eliminate the uncertainties which previously resulted in the reluctance of various law enforcement agencies to provide services in Indian Country for fear of being subjected to tort and civil rights suits..."

In 1996, Plaintiff was arrested by Choctaw Nation tribal officers for violating Choctaw Council Bill 113-96. He was jailed and charged in C.F.R. court. That Court ultimately ordered the charges dismissed. Plaintiff then participated in a suit (Case No. C-96-2) in the Constitutional Tribal Court requesting a declaratory judgment regarding the constitutional authority of the Nation to establish C.F.R. courts and to enter into crossdeputization agreements. On December 3, 1996, after extensive briefs and arguments, that Court found that the Choctaw Nation had constitutional authority for both. Plaintiff now requests this Court to make the opposite finding. However, he stated here and in the federal removal proceeding that he raises no federal question.

Indians are, of course, U.S. citizens. 8 U.S.C. 1401(a2) As such, they may claim protection under federal and State Constitutions. Although States, with Congressional approval, may generally enter into compacts and agreements as they see fit, these agreements may not diminish or enlarge constitutional rights. 72 Am.Jur.2d "States" Sec.5; Pollard v Hagan. 3 How. 212, 11 L.Ed. 565 If State legislation or agreements have legitimate goals and their classifications are reasonably related to the achievement of those goals, 'they are usually not held to be so arbitary as to violate due process. State v. Fed. Energy Reg. Comm'n., 494 F.Supp. 636;, cert.den. 102 S.Ct. 2902 (D.C. Okl. 1980) When criminal procedure is considered, Due Process basically contemplates an orderly proceeding adapted to the nature of the nature of the case, before a tribunal having jurisdiction, which proceeds upon notice, with opportunity to be heard, and full power to grant relief. Dodds v. Ward. 418 P.2d 629 (Okl. 1966)

The cross-deputization agreements at issue in this case are clearly designed to protect the public by more efficient enforcement of state, federal and tribal laws. The Court finds nothing repulsive in this goal, nor in the scheme used to achieve it. Moreover, each of the forums involved (state, federal and tribal) provide orderly tribunals for the processing of criminal cases. The fact that the Plaintiff is not satisfied with the outcome of his Constitutional Tribal Court Case is not dispositive. 16 C.J.S. "Constitutional Law" Sec. 964 notes:

"(Due Process) is not a guarantee that every court ruling shall be correct, or that every decision reached will be factual or just, but it is a guaranty that the fundamental principles of justice shall not be violated and that a decision will be reached by processes which are fair. So the constitutional question of due process of law is not involved where the question is the validity of the judgment ..."

For these reasons, the Court finds that these agreements do not violate Due Process.

Plaintiff claims that cross-deputization agreements single tribal members out as a suspect racial class in violation of Equal Protection. However, the unique status of Indian Tribes under federal law permits the federal government to enact legislation singling out tribal Indians, even though the legislation might otherwise be constitutionally offensive. Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 States do not enjoy this same unique status. However, the laws enabling crossdeputization agreements are not simply additional State laws. They were enacted in response to a federal measure designed to protect state and tribal citizens.

Historically, the U.S. Supreme Court has used classifications based on tribal status in many of its decisions involving the jurisdiction of Indians. U.S. v. McBratney, 104 U.S. 621, 26 L.Ed. 869 Such classifications are not "suspect" so as to require justification of a compelling state interest for Equal Protection analysis. Morton- v. Mancari supra; U.S. V.-Antelope, 430 U.S. 641, 97 S. Ct. 1395, 51 L. Ed. 2d 701 (1977) ; Washington v. Yakima Indian Nation, 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979.)Under conventional Equal Protection analysis, legislative enactments are valid unless they bear no rational relationship to the State's objectives. Mass Board of Retirement v. Murgia, 96 S.Ct. 2562, 49 L.Ed.2d 520 State law "does not violate the Equal Protection clause merely because the classifications (it makes) are imperfect". Dandridge v. Williams. 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed2d 491.

The cross-deputization agreements in this case are clearly designed to promote the State's police power, "eliminate a serious hiatus in law enforcement authority", and ensure the protection of state and tribal citizens. They do so in a far more rational manner than the checkerboard jurisdictional scheme approved by the U.S. Supreme Court in Washington v. Yakima Nation. supra. Thus, Plaintiff's equal protection argument must also fail.

Plaintiff indirectly seeks this Court to review an issue already fully litigated and decided in Tribal Court.

Historically, the courts have divided on how Tribal judgments should be treated for recognition purposes. Some courts have treated these decrees like sister-state judgments (U.S. Const. Art. IV Sec. 1), some like judgments of federal "Territories" (28 U.S.C. 1738), and some like judgments of foreign countries. The Oklahoma Legislature attempted to resolve this problem in 1992 by the passage of 12 O.S. 728. That statute authorizes the Oklahoma Supreme Court to issue a court rule regarding the matter. In 1994, our Court did that by adopting District Court Rule 30, Title 12, Ch. 2 App., which provides that state District Courts shall give full faith and credit to tribal courts who agree to grant state decrees the same reciprocity. Unfortunately, the Choctaw Nation has not elected to do that. See Supreme Court Adm.Dir. No. 94-15.

Therefore, the question of comity must be decided by general principles of law regarding the recognition of foreign judgments.

As a sovereign nation, the Choctaw tribe is not a federal entity, nor does it hold the status of a sister state. For that reason, it is not entitled to the same full faith and credit accorded decrees of those entities. See U.S. ex rel Jackson v.Meyerling., 54 F.2d 621, cert.den. 52 S.Ct. 498; Denton v. Cronin,529 P.2d 644 However, it is entitled to the same deference shown decisions of foreign nations as a matter of comity. U.S.Const.Art. 4, Sec. 1 Generally, foreign nation judgments are entitled to recognition to the same extent and scope as in the courts of the jurisdiction where rendered, if: (1) the foreign court actually had
jurisdiction over both the subject matter and the parties;(2) the decree was not obtained fraudulently; (3) the decree was rendered under a system of law reasonably assuring the requisites of an impartial administration of justice-- due notice and a hearing; and(4) the judgment did not contravene the public policy of
the jurisdiction in which it is relied upon. Hilton v. Guynt,159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895) This is essentially the rule adopted by the Oklahoma Court in Barrett V. Barrett, 878 P.2d 1051 (Okl. 1994) when it cited with approval the Court's pronouncement in Britton v. Gannon. 285 P-2d 407 (Okl.1955) that state courts are:

"not required to recognize the judgment of a court of another state, territory, or country subject to the jurisdiction of the United States, where the court rendering the judgment was without jurisdiction or the judgment was obtained by extrinsic fraud."

Procedural differences between state courts and the other court system are not sufficient reasons to refuse recognition. Panama Processes v. Cities Service Inc.. 796 P.2d 276 (Okl.1990)

In this case, although Plaintiff claims no fraud or contravention of public policy, he does claim that tribal courts lacked criminal jurisdiction. However, in deciding whether togrant comity, the question is whether the Constitutional Tribal Court had jurisdiction to hear the matter, not whether the tribal courts had jurisdiction to enforce criminal laws. The answer to this question is clear. The Choctaw Constitution provides: "The Tribal Court shall have exclusive jurisdiction to decide disputes, by vote of two (2) members, arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council."

Because the Tribal Court had subject matter jurisdiction, Plaintiff has failed to make a showing sufficient to defeat comity. The Court finds that the Tribal Court decree should be recognized. Just as this States highest court is best able to decide constitutional issues (subject to federal review), so too is the Choctaw Constitutional Tribal Court best able to decide its constitutional questions.

In Citizen State Bank v. Hall. 413 P.2d 513 (Okl. 1966), the Oklahoma Supreme Court stated:

"A final judgment of a court of competent jurisdiction is conclusive between the parties and their privies in a subsequent action involving the same subject matter, not only as to all matters litigated and determined in the former action, but also as to all matters germane to issues which could or might have been litigated
therein."

The Court finds that Plaintiff's state and federal due process and equal protection rights have not been violated by the cross-deputization agreements, and, although the matter may be subject to federal review, this court is bound by comity from reconsidering the constitutionality of the C.F.R. courts or the Choctaw criminal code. For these reasons,the Petition for declaratory and Injunctive Relief is hereby DENIED, and Defendant's Motions to Dismiss are GRANTED.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,

Defendant.

No. CR-95-01

To the Honorable Judge of Said Court:

COMES NOW Douglas Dry, Defendant in the above styled and numbered cause, by and through his attorney of record, Scott Kayla Morrison, and moves the Court to disqualify and recuse himself from hearing any proceeding in the above cause, and in support thereof would show the Court as follows:

Judge James Wolfe is personally biased and prejudiced against the Defendant and said Defendant will be unable to receive a fair and impartial trial before such Judge.

This motion is made in good faith and not for the purpose of delay. Said motion has been filed sufficiently early before the trial date to cause no inconvenience or disruption of the proceedings.

WHEREFORE, PREMISES CONSIDERED, the Defendant prays that said judge will disqualify and recuse himself and that the Court will set this motion down at a future date for hearing thereon.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,
Rosie Lee Burlison, and
Juanita McConnell,

Defendants.

No. CR-95-03, 05

To the Honorable Judge of Said Court:

COMES NOW Juanita McConnell, Defendant in the above styled and numbered cause, by and through her attorney of record, Scott Kayla Morrison, and moves for severance from co-defendants Douglas Dry and Rosie Lee Burlison and in support thereof would show the Court as follows:

Defendant Douglas Dry has been charged with a separate and distinct crime of assaulting a police officer from co-defendant Juanita McConnell. Defendant McConnell will suffer prejudicial harm by evidence introduced to prove Dry's quilt or innocence.

Regardless of the trial court's instructions to the contrary, the jury will consider the co-defendant's alleged acts and declarations against Defendant McConnell, causing prejudice. II.

Defendant Rosie Lee Burlison has been charged with a separate and distinct crime of resisting arrest from co-defendant

Juanita McConnell. Defendant McConnell will suffer prejudicial harm by evidence introduced to prove Burlison's guilt or
innocence. Regardless of the trial court's instructions to the contrary, the jury will consider the co-defendant's acts and declarations against Defendant McConnell, causing prejudice.

WHEREFORE, PREMISES CONSIDERED, the Defendant Juanita McConnell prays that her case be severed from that of codefendants Douglas Dry and Rosie Lee Burlison and that she be tried alone.

STATE OF OKLAHOMA
COUNTY OF LATIMER

BEFORE ME, the undersigned authority, appeared on the 2nd day of October, 1995, and who being by me duly sworn did depose and state on her oath the following:

"My name is Juanita McConnell. I am the defendant in the above entitled and numbered cause. I have read the foregoing Motion for Severance and swear that it is true and correct."

SUBSCRIBED AND SWORN TO before me this 2nd day of October,
1995.

My Commission Expires: 12-18-96

I certify that I mailed first class postage prepaid the above and foregoing Motion for Severance to Robert L. Rabon on this 13th day of October, 1995.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,
Rosie Lee Burlison, and
Juanita McConnell,

Defendants.

No. CR-95-05,

To the Honorable Judge of Said Court:

COMES NOW Rosie Lee Burlison, Defendant in the above styled and numbered cause, by and through her attorney of record, Scott Kayla Morrison, and moves for severance from co-defendant Douglas Dry and in support thereof would show the Court as follows:

Defendant Douglas Dry has been charged with a separate and distinct crime of assaulting a police officer from co-defendant Rosie Lee Burlison. Defendant Burlison will suffer prejudicial harm by evidence introduced to prove Dry's guilt or innocence. Regardless of the trial court's instructions to the contrary, the jury will consider the co-defendant's alleged acts and declarations against Defendant Burlison, causing prejudice.

WHEREFORE, PREMISES CONSIDERED, the Defendant Rosie Lee Burlison prays that her case be severed from that of codefendant Douglas Dry and that she be tried alone.

STATE OF OKLAHOMA

COUNTY OF LATIMER

BEFORE ME, the undersigned authority, appeared on the day of October, 1995, and who being by me duly sworn did depose and state on her oath the following:

"My name is Rosie Lee Burlison. I am the defendant in the above entitled and numbered cause. I have read the foregoing Motion of or Severance and swear that it is true and correct.

SUBSCRIBED AND SWORN TO before me this 2nd day of October,
1995.

My Commission Expires: 12-18-97

CERTIFICATE OF SERVICE

I certify that I mailed first class postage prepaid the above and foregoing Motion for Severance to Robert L. Rabon on this 13th day of October, 1995.

Choctaw Nation of Oklahoma,

Plaintiff,

vs.

Douglas Dry,
Rosie Lee Burlison, and
Juanita McConnell,

Defendants.

No. CR-95-01, 02, 03, 04, 05

To The Honorable Judge of Said Court:

COME NOW, Douglas Dry, Rosie Lee Burlison, and Juanita McConnell, defendants in the above styled and numbered cause and moves this Court for an order changing the venue situs of the trial of this information herein to some other Code of Federal Regulations Court, such as the Court of Indian 0ffenses, Ada, Oklahoma, or Anadarko, Oklahoma. In support hereof, the defendants would show the Court as follows:

The defendants would show that the minds of the administration officials of the Choctaw Nation of Oklahoma presiding over and administering the jury pool are so prejudiced against these defendants and possess such fixed opinions as to :he guilt of the defendants, that a fair and impartial trial cannot be conducted herein. In support hereof the defendants would show as follows:

The affidavit enclosed herewith, designated as Exhibit "A," shows how the minds of the tribal officials administering the jury pool have become so extremely prejudiced against the defendants.

The current administration of the Choctaw Nation of Oklahoma owns and controls the official newspaper of the Choctaw Nation, the Bishinik, which is sent to all registered voters of the Choctaw Nation. This newspaper is an avenue for the administration which arrested and charged these defendants for peaceably exercising their right of free speech to prejudice the Choctaw citizens against these defendants. There is no other paper whose readership is the registered voters of the Choctaw Nation.

The current chief, Hollis Roberts, and the current tribal attorney, Bob Rabon, own, control or influence several newspapers Southeastern Oklahoma, including the Choctaw County Times, It Daily News, Latimer County Today, Talihina American, and ,ion Today. In addition to the Choctaw Nation's newspaper, the Bishinik, these newspapers are an avenue for the current admistration of the Choctaw Nation to prejudice the potential jurants against these defendants.

The potential jurors to hear this cause at trial are voters Choctaw Nation. These potential jurors will be chosen by Hampton, director of the voter registration department of the Choctaw Nation. Hampton is now and at all times has been an outspoken supporter of Hollis Roberts, Chief of the Choctaw Nation, and the defendant charged with rape and sexual assault. Hampton is a defendant in a suit filed by Dry on behalf of Morrison to obtain the list of registered voters of the Choctaw Nation. Further, Dry was a candidate in the recent election for chief of the Choctaw Nation, and represents two victims against Roberts and other tribal officials concerning events arising out of the federal criminal case pending against Roberts. Hampton is prejudiced against Dry and would choose an entire jury pool which voted in favor of the current administration, and continues to support the current administration. Since defendants does not have access to the voter registration list, there is no way to challenge the potential jurors selected by Hampton.

WHEREFORE, the defendants pray that the Court change the venue of this cause to some other Court of Indian Offenses in the State of Oklahoma, such as Court of Indian Offenses at Anadarko, Oklahoma, or Chickasaw Court of Indian Offenses at Ada, Oklahoma, where the defendants may have a fair and impartial trial.

I certify that I mailed first class postage prepaid the above and foregoing Application for Change of Venue to Robert L. Rabon, Rabon, Wolf and Rabon, Post office Box 726, Hugo, Oklahoma 74743 on this 30th day of October, 1995.

CHOCTAW NATION OF OKLAHOMA

BEFORE ME, the undersigned authority, appeared an the 20th day of October, 1995, and who being by me duly sworn did depose and state on her oath the following:

"My name is Rosie Lee Burlison. I am the defendant in the above entitled and numbered cause. I have read the foregoing Application for Change of Venue and swear that it is true and correct."

CHOCTAW NATION OF OKLAHOMA

BEFORE ME, the undersigned authority, appeared on the 30th day of October, 1995, and who being by me duly sworn did depose and state on his oath the following:

"My name is Douglas Dry. I am the defendant in the above entitled and numbered cause. I have read the foregoing Application for Change of Venue and swear that it is true and correct."

CHOCTAW NATION OF OKLAHOMA

BEFORE ME, the undersigned authority, appeared on the 30th day of October, 1995, and who being by me duly sworn did depose and state on her oath the following:

"My name is Juanita McConnell. I am the defendant in the above entitled and numbered cause. I have read the foregoing Application for Change of Venue and swear that it is true and correct.

SUBSCRIBED AND SWORN TO before me this 20th day of October, 1995.

My commission Expires: 12-18-96

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,

Defendant.

No. CR-95-01, 02

To the Honorable Judge of Said Court:

COMES NOW Douglas Dry, defendant in the above styled and numbered cause, by his attorney of record, Scott Kayla Morrison, and moves this Court to quash and set aside the information filed herein, charging him with resisting arrest, assault on a police officer and attempt to intimidate police officer, and to abate said proceedings as to any further action and represent to the Court as follows:

Defendant Dry cannot be charged with resisting arrest, assaulting a Police officer and attempting to intimidate police officer where all charges arose out of the same struggle by defendant with Police. Ajeani v. State, 610 P.2d 820 (Okla. Crim. App. 1980). To charge and punish defendant for a portion of the same conduct a second time violates Choctaw
Criminal Codes Section 1-8, incorporating 21 O.S. Section 11.

Defendant Dry lawfully resisted in the taking, by force, of Dry's property from his person, as allowed in Choctaw
Criminal Codes Section 2-19 and 2-20. An unidentified man, not in uniformed, not identifiable as any law enforcement
personnel, and who did not identify himself as law enforcement personnel, attempted to take or injure Dry's camcorder bag from Dry's shoulder. Dry resisted this individual, whom he believed to be a thief, with the force necessary to protect his property, as allowed in Section 2-19 and 2-20.

This motion is made in good faith and not for dilatory purposes. The Defendant is entitled to the relief as herein prayed.

WHEREFORE, PREMISES CONSIDERED, Defendant Douglas Dry prays that the Court order that this Information be quashed and set aside and any further proceedings or hearings in the Court of Indian 0ffenses for the Choctaw Nation be abated.

CHOCTAW NATION OF OKLAHOMA

BEFORE ME, the undersigned authority, appeared on the 30th day of October, 1995, and who being by me duly sworn did depose and state on his oath the following:

"My name is Douglas Dry. I am the defendant in the above entitled and numbered cause. I have read the foregoing Motion to Quash and Set Aside Information and swear that it is true and correct."

SUBSCRIBED AND SWORN To before me this 12th day of October, 1995.

My Commission Expires: 12-18-96

I certify that I mailed first class postage prepaid the above and foregoing Motion to Quash and Set Aside Information to Robert L. Rabon, Rabon, Wolff and Rabon, Post Office Box 726, Hugo, Oklahoma, 74743 on this 30th day of October, 1995.

Yoramu Jomabuti AJEANI, Appellant,

V.

The STATE of Oklahoma. Appellee.
No. M-79-437.
Court of Criminal Appeals of Oklahoma

April 30, 1980.

Rehearing Denied May 27, 1980.

Defendant was convicted in the District Court, Payne County, John R. Couch, J., of resisting arrest and assault and battery upon a police officer. Defendant appealed. The Court of Criminal Appeals, Bussey, J., held that: (1) a warrantless arrest for a misdemeanor was lawful where the arresting officer had probable cause, based on information coming to his senses or his personal observation at the time, to believe that a misdemeanor or other public offense was being committed in his presence by the arrestee, even though the arrestee was subsequently found innocent of the charges, and (2) defendant could not be convicted of both resisting an officer and assault and battery upon a police officer where both offenses arose from the same struggle by defendant with a police officer.

Affirmed in part, reversed in part, and remanded with instructions.

Brett, J., dissented.

1. Arrest 63.4(15)

Warrantless arrest for misdemeanor was lawful where arresting officer had probable cause, based on information coming to his senses or his personal observation at the time, to believe that misdemeanor or other public offense was being committed in his presence by arrestee, even though arrestee was subsequently found innocent of charges. 22 O.S.1971, § 196.

2. Criminal Law 29

Defendant could not be convicted of both resisting officer and assault and battery upon police officer where both charges arose out of same struggle by defendant with police. 21 O.S.1971, § 11.

An appeal from the District Court, Payne County; John R. Couch, Jr., Judge.

YORAMU JOMABUTI AJEANI, appellant, was convicted of the offenses of Resisting an Officer and Assault and Battery Upon a Police Officer; was sentenced to thirty (30) days in the county jail to run concurrently and assessed a fine of One Hundred ($100.00) Dollars, and appeals. Judgment and sentence in Resisting Arrest is AFFIRMED and Judgment and Sentence in Assault and Battery Upon a Police Officer is REVERSED and REMANDED to the trial court with instructions to DISMISS.

Robert M. Murphy, Jr., Stillwater, for appellant.

Jan Eric Cartwright, Atty. Gen., Michael Jackson, Asst. Atty. Gen., Jennie L. McLean, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

On appeal from his conviction for Resisting an Officer, CRM-77-1269, and Assault and Battery Upon a Police Officer, CRM77-1270, which had been tried together in the District Court of Payne County with two additional related charges of which Appellant was acquitted-Public Intoxication, CRM-77-1267 and Breach of the Peace, CRM-77-1268-the Appellant, Yoramu Jomabuti Ajeani, hereinafter referred to as defendant, raises two assignments of error. Before considering those assignments of error, we note the following relevant evidence at trial: The State's evidence was that two officers of the Oklahoma State University Police Department, Officers Shelton and Disel, went to defendant's residence at about 6:30 a. in. on December 13, 1977, to question him concerning an incident earlier that morning. They entered past defendant's wife at defendant's shouted invitation and went to a bedroom where defendant was lying in bed. Defendant became profane and abusive with the officers, who then left the apartment. However, defendant followed the officers out to a sidewalk in a public court and again became abusive and profane. Defendant appeared to the officers to be intoxicated and was known to have had a bottle of wine in his possession several hours earlier. When defendant ignored the officer's repeated requests to quiet down and return to his residence, the officers attempted to arrest him. Defendant resisted and a struggle ensued, during which defendant punched Officer Shelton in the face.

The defendant's evidence was that the officers forced their way into the residence, past defendant's wife without invitation, and arrested and dragged defendant from the residence, beating him. Defendant fought back until other officers arrived and he was transported to jail.

Defendant asserts in his first assignment of error that the warrantless misdemeanor arrest in this event was unlawful, that defendant lawfully resisted that arrest, and that the trial court erred in not sustaining defendant's motion in arrest of judgment as to the Assault and Battery Upon a Police Officer and Resisting Arrest charges. Defendant points to the provisions of 22 O.S. 1971, § 196; "A peace officer may, without a warrant, arrest a person: 1. For a public offense, committed or attempted in his presence . . ." Defendant reasons that, by its verdict, the jury found that the offenses for which the arrest was made, Breach of Peace and Public Intoxication, did not in fact occur, so that no public offense was in fact committed or attempted in the officer's presence, and the arrest was unlawful. Therefore, the conduct after the arrest, forming the basis of the Assault and Battery and Resisting Arrest charges, was in reality lawful resistance to an unlawful arrest.

[1] We find this assignment of error to be without merit. We hold that an arrest for a misdemeanor, without warrant, where the arresting officer has probable cause, based on information coming to his senses or his personal observation at the time, to believe that a misdemeanor or other public offense is being committed in his presence by the arrestee, is not unlawful, even though arrestee is subsequently found innocent of the charges. We find support for this view in the following decisions of other jurisdictions construing provisions similar to § 196: Cave v. Cooley, 48 N.M. 478, 152 P-2d 886 (1944, New Mex.); Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952, Cal.) cert. den'd 344 U.S. 940, 73 S.CL 509 97 L-Ed. 653 (1952); Miller v. State, 462 P.2d 421 (1969, Alaska); Sennett v. Zimmerman, 50 Wash.2d 649, 314 P.2d 414 (1957); House v. Ane, 58 Haw. 383, 538 P.2d 320 (1975); Rosenberg v. State, 264 So.2d 68 (1972, Fla. App.). See also People v. Dixon, 392 Mich. 691, 222 N.W.2d 749 (1974). The recurring concern expressed in these cases is that law enforcement officers not be hampered in the performance of their duties by the threat of civil liability, or be subjected to physical resistance later sanctioned by law, due to an honest, reasonable mistake as to whether an offense appearing to have been committed in their presence was committed. This concern was well expressed in an oft-quoted passage from the opinion in Coverstone as follows:

"When an arrest for a misdemeanor is made upon the complaint of one other than the arresting officer, it is proper to require the securing of a warrant to justify the arrest. . . . However, to make the same requirement, when the officer sees that in all probability a public offense is being committed in his presence, would be to hamper law enforcement officers in their every day enforcement of the law. Pence officers would be reluctant to make arrests for fear that they would be held liable for having made an honest and reasonable mistake. It is thus manifest that the day to day problems of law enforcement require that peace officers be allowed to act without fear of being held liable upon the facts as they see them, provided such facts would lead a reasonable person to conclude that he was witnessing the commission of a public offense by the person arrested." 239 P.2d at 879-880.

That an accommodation of competing interests is achieved by this construction is reflected in the remarks of the Court in House:

"It is believed that such a construction of the statute harmonized with what society would deem necessary to protect itself' from lawlessness by facilitating the apprehension of criminals and preventing the commission of crimes. The countervailing interest of the community in the freedom of the individual citizens from arbitrary and capricious seizure is balanced by the requirement of probable cause." 538 P.2d at 325.

This is not to say that mere suspicion or subterfuge will justify a warrantless misdemeanor arrest; nor will information supplied by a third person suffice. However, the record in the case at bar reveals that the arresting officers had probable cause to believe that defendant had committed the misdemeanors of Breach of Peace and Public Intoxication in their presence. Although not sufficient as it turned out to convince the jury beyond a reasonable doubt, the officers can not be said to have acted on mere suspicion or as a mere subterfuge. Therefore, the arrest was not unlawful so as to justify defendant's subsequent assault on the officers.

[2] However, defendant's second assignment of error-that the Assault and Battery Upon a Police Officer, and the Resisting Arrest were duplicate charges covering the same conduct-is well taken. The information in Case No. CRM-77-1269 alleges Resisting an Officer by use of force and violence upon Officer Shelton while the officer was arresting defendant in the performance of his duties. The information in Case No. CRM-77-1270 alleges Assault and Battery Upon a Police Officer by hitting, striking and contending with Officer Shelton who was in the performance of his duty.

Officer Shelton's testimony on this point was that he took defendant by the arm to arrest him, but defendant broke away from his grasp, whereupon the officer grabbed ahold of defendant again and the men fell to the sidewalk. On the sidewalk, the defendant continued to struggle with the officer and while doing so struck the officer with his fist in the face. It would seem, that this struggling and contending, including the blow, is that 'use of force and violence' upon Officer Shelton which was charged in Case No. CRM-77-1269 as resisting arrest. To charge and punish defendant for a portion of the same conduct a second time in CRM-77-1270 violates 21 O.S.1971, § 11, which provides in relevant part that ". . . an act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions . . . but in no event can he be punished under more than one."

In Barnett v. State, Okl.Cr., 560 P.2d 997 (1977), this Court regarded proof of an assault and battery upon the arresting officer as a separate offense but admissible as part of the res gestae in trial of a resisting arrest charge. However, under the facts of that case the assault battery occurred as the officers stood on the porch of a house attempting to arrest the defendant, whereafter defendant fled into the house. The officers then conferred with the District Attorney and, upon arrival of additional officers, went into the house to effect the arrest. At that time, the defendant struggled with the officers as they attempted to handcuff him and so resisted arrest. That case is clearly distinguishable from the one at bar. In Reams v. State, Okl.Cr., 551 P.2d 1168 (1976), this Court held that the jerking away of defendant from the arresting officer's grasp, accompanied by threats by arrestee, was sufficient to establish the necessary resistance by force and violence. However, that case involved no attempt to punish the same conduct under different provisions of the code.

Therefore, for the above and foregoing reasons, the judgment and sentence in CRM-77-1269, Resisting Arrest, will be, and is hereby, AFFIRMED, but the judgment and sentence in CRM-77-1270, Assault and Battery Upon a Police Officer, will be, and is hereby, REVERSED AND REMANDED to the trial court with instructions to DISMISS.

CORNISH, P. J., concurs.

BRETT, J., dissents.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,
Rosie Lee Burlison, and
Juanita McConnell,

Defendants.

No. CR-95-05

To the Honorable Judge of Said Court:

COME NOW Douglas Dry, Rosie Lee Burlison, and Juanita McConnell, defendants in the above styled and numbered cause, by their attorney of record, Scott Kayla Morrison, and move this Court to quash and set aside the information filed herein, charging them with disturbing the peace, and to abate said proceedings as to any further action and represent to the Court as follows:

The information was based on constitutionally protected free speech. Defendants Douglas Dry, Rosie Lee Burlison, and Juanita McConnell have the right to free speech and the right to peaceably assemble under the United States Constitution, the Choctaw Constitution, the Indian Civil Rights Act, 25 U.S.C.Section 1302, and the State of Oklahoma Constitution, and were exercising such rights on the morning September 4, 1995, when arrested by Choctaw Police.
Article IV of the Choctaw Constitution incorporates civil liberties guaranteed by the First Amendment to the U.S. Constitution. Article IV, Section 1, of the Constitution of the Choctaw Nation provides:

"Nothing in this Constitution shall be interpreted in a way which would diminish the rights and privileges that tribal members have as citizens of this Nation, the State of Oklahoma, the United States of America, or under any Act of the Congress of the United States." The First Amendment to the U.S. Constitution states that Congress shall make no law "abridging the freedom of speech, or ... the right of the people peaceably to assemble."

The Indian Civil Rights Act, 25 U.S.C. Section 1302 (1) guarantees that "no Indian tribe in exercising power of self government shall make or enforce any law 11 ... abridging the freedom of speech... or the right of the people to peaceably assemble."

The Choctaw constitution, Article IV, Section 3, provides: "The right that every member has to speak, write or publish his opinions on matters relating to the Choctaw Nation shall not be abridged." In Article IV, Section 4, the Choctaw Constitution guarantees that 'members shall have the right, in a peaceable manner, to assemble together for their common good."

The Constitution of the State of Oklahoma guarantees the liberty of speech in Article 2, Section 22, stating, "no law
stall be passed to restrain or abridge the liberty of speech... The right to assembly is guaranteed in Article 2, Section 3, stating "the people have the right peaceably to assemble for their own good..."

Defendants Douglas Dry, Rosie Lee Burlison and Juanita McConnell have a right to speak their opinions on matters relating to the Choctaw Nation by distributing pamphlets critical of the current administration of the Choctaw Nation, and the right to peaceably assemble with other Choctaw citizens. Any infringements on these rights are void under-the U.S. Constitution, the Indian Civil Rights Act, the Choctaw Constitution, and the State of Oklahoma Constitution. First National Bank v. Bellotti, 435 U.S. 765, 55 L.Ed.2d 707 (1978).

The information was not endorsed as required by Section 4-303, Choctaw Criminal Procedures, which requires that the names and last known addresses of all the witnesses known to the Tribal Prosecutor at the time of the filing be endorsed and notice given to defense counsel.

This motion is made in good faith and not for dilatory purposes. The Defendants are entitled to the relief as herein prayed.

WHEREFORE, PREMISES CONSIDERED, Defendants pray that the court order that this Information be quashed and set aside and any further proceedings or hearings in the Court of Indian Offenses for the Choctaw Nation be abated.

CHOCTAW NATION OF OKLAHOMA

BEFORE ME, the undersigned authority, appeared an the 20th day of October, 1995, and who being by me duly sworn did depose and state on her oath the following:

"My name is Rosie Lee Burlison. I am the defendant in the above entitled and numbered cause. I have read the foregoing Motion to Quash and Set Aside Information and swear that it is true and correct."

CHOCTAW NATION OF OKLAHOMA

BEFORE ME, the undersigned authority, appeared on the 30th day of October, 1995, and who being by me duly sworn did depose and state on his oath the following:

"My name is Douglas Dry. I am the defendant in the above entitled and numbered cause. I have read the foregoing Motion to Quash and Set Aside Information and swear that it is true and correct."

CHOCTAW NATION OF OKLAHOMA

BEFORE ME, the undersigned authority, appeared on the 30th day of October, 1995, and who being by me duly sworn did depose and state on her oath the following:

"My name is Juanita McConnell. I am the defendant in the above entitled and numbered cause. I have read the foregoing Motion to Quash and Set Aside Information and swear that it is true and correct.

I certify that I mailed first class postage prepaid the above and foregoing Motion to Quash and Set Aside Information to Robert L. Rabon, Rabon, Wolf, and Rabon, Post Office Box 726, Hugo, Oklahoma, 74743 on this 30th day of October, 1995.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,

Defendant.

No. CR-95-01, 02, 05

To the Honorable Judge of Said Court:

COMES NOW Douglas Dry, Defendant in the above styled and numbered cause, by and through his attorney of record, Scott Kayla Morrison, and moves the Court to dismiss the pending Motion for Disqualification of Trial the Court, and in support thereof will show the Court as follows:

Upon review of the 1983 Constitution of the Choctaw Nation, it is clear that Chief Hollis Roberts would appoint any and all judges to the bench of this Court. The justice system is inherently biased, regardless of who sits on the bench.

Since Chief Roberts would be appointing any replacement in the event Judge James Wolfe recused himself, it would cause greater concern for defendant, given the fact of Chief Roberts current pending federal criminal charges, of who Chief Roberts would appoint to replace Judge Wolfe.

WHEREFORE, PREMISES CONSIDERED, the Defendant prays that the Court withdraws the Motion for Disqualification of Trial Judge currently pending before this court.

I cerrtify that I personally mailed by first- class mail the above and foregoing Motion to Withdraw Motion to Disqualify Judge to Judge James Wolfe, and Robert L. Rabon, on this 23rd day of January, 1996.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,

Defendant.

No. CR-95-01, 05

To the Honorable Judge of Said Court:

COMES NOW Douglas Dry, Defendant in the above styled and numbered cause, by and through his attorney of record, Scott Kayla Morrison, and moves the Court to disqualify and recuse Tribal Prosecutor, Robert L. Rabon, from participating in any proceedings in the above cause, and in support thereof would show the court as follows:

Robert L. Rabon represented the Choctaw Council, the legislative body of the Choctaw Nation, in a civil matter before the Choctaw Tribal Court on October 12, 1996, in which Douglas G. Dry was a defendant.

Robert L. Rabon is tribal prosecutor of this court, the judicial branch of the Choctaw Nation.

To allow Rabon to continue to function as a representative both the legislative and judicial branches of government would violate Article V of the Choctaw Constitution and the U.S. Court withdraws the Motion for Disqualification of Trial Judge currently pending before this court.

I certify that I personally mailed by first class mail the above and foregoing Motion to Withdraw Motion to Disqualify Judge to Judge James Wolfe, and Robert L. Rabon on this 23rd day of January, 1997.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,

Defendant.

No. CR-95-01, 05

To the Honorable Judge of Said Court:

COMES NOW Douglas Dry, Defendant in the above styled and numbered cause, by and through his attorney of record, Scott Kayla Morrison, and moves the Court to disqualify and recuse Tribal Prosecutor, Robert L. Rabon, from participating in any proceedings in the above cause, and in support thereof would show the Court as follows:

Robert L. Rabon represented the Choctaw Council, the legislative body of the Choctaw Nation, in a civil matter before the Choctaw Tribal Court on August 23, 1996, in which Douglas G. Dry was a defendant.

Robert L. Rabon is tribal prosecutor of this court, the judicial branch of the Choctaw Nation.

To allow Rabon to continue to function as a representative of both the legislative and judicial branches of government would violate Article v of the Choctaw constitution and the U.S. Constitution.

WHEREFORE, PREMISES CONSIDERED, the Defendant prays that the Court will disqualify and recuse Tribal Prosecutor, Robert L. Rabon, and that the Court will set this motion down at a future date for hearing thereon.

I certify that I personally mailed by first class mail the above and foregoing Motion to Withdraw Motion to Disqualify Judge to Judge James Wolfe, and Robert L. Rabon on this 24rd day of January, 1997.

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Juanita McConnell, and Rosie Lee Burlison,

Defendants.

No. CR-95-03 04, 05

COME NOW Juanita McConnell, and Rosie Lee Burlison, Defendants in the above styled and numbered cause, by and through their attorney of record, Scott Kayla Morrison, and move to stay proceedings pending appeal on the denial of their motion to dismiss for lack of subject matter jurisdiction. To require defendants to prepare a defense in a court that may not have subject matter jurisdiction would create hardship on the defendants.

WHEREFORE, PREMISES CONSIDERED, the Defendants respectfully prays that the Court stays proceedings pending appeal on the order denying defendants, motion to dismiss for lack of subject matter jurisdiction.

I certify that I mailed first class postage prepaid the above and foregoing Second Amended Motion to Disqualify Tribal Prosecutor, to Robert L. Rabon, Rabon, Wolfe, and Rabon, on this 27th day of January, 1997.

Choctaw Nation of Oklahoma,

Plaintiff,

Vs.

Douglas Dry,
Rosie Lee Burlison, and
Juanita McConnell,

Defendants.

No. CR-95-01, 05

Comes now Bob Rabon and specially appears only for the purpose of this motion and respectfully shows to the Court:

(1) That the movant has received a subpoena from this Court commanding his appearance as a witness before the Court of Indian 0ffenses of the Choctaw Nation of Oklahoma an August 15, 1997; that said subpoena does not identify the party who requested it. However, movant assumes it was issued at the request of one of the defendants.

(2) Movant further shows to the Court that his law partner, Robert L. Rabon, is the attorney for the prosecuting party; that it is not ethical for an attorney to be a witness in a cause wherein either he or a law partner are acting as counsel.

(3) Defendants have been actively seeking the disqualification of the prosecutor in this case; the attorney for defendants is also the attorney for Douglas Dry in a federal civil suit in which movant is the attorney for four of the defendants.

She has informed the Court that she intends to try to make movant a witness in that case and seek his disqualification there.

(4) This effort to draw movant in this case as a witness is designed for purposes of harassment and to further the attorney's cause in disqualifying the prosecutor in this case and movant in the federal case.

Wherefore, movant requests that the Court quash the said subpoena.

I hereby certify that on the 1st day of August, 1997, 1 mailed a true and correct copy of the above Special Appearance and Motion to Quash Subpoena to Scott Kayla Morrison, P.O. Box (337, Wilburton, OK 74578, with full postage prepaid thereon.

Choctaw Nation of Oklahoma,

Plaintiff, vs. Douglas Dry,

Defendant.

No. CR-95-01, 05

Comes now the defendant. Douglas G. Dry, and withdraws subpoenas issued on July 24, 1997 for Sheldon Sperling, Assistant U.S. Attomey, and for his reasons, affirms and states:

1. The U.S. Attomey's Office has taken the position that this Court does not have jurisdiction over federal employees. apparently for any purpose.

2. For defendant to challenge this position, it would require time, energy and financial resources. With this defense and other actions currently pending, defendant is without current resources to mount the defense required to take this issue to the Tenth Circuit Court of Appeals.

Wherefore. defendant, Douglas Dry, withdraws subpoenas issued to Sheldon Sperling for the above reasons.

Respectfully submitted,

I certify that I hand-delivered the above and foregoing Withdrawal Without Prejudice of Subpoena to Robert L. Rabon, Rabon, Wolfe, and Rabon. Post Office Box 726, Hugo. OK 74743, on this 12th day of August, 1997.