DOUGLAS DRY, ROSIE BURLISON,
And JUANITA MCCONNELL,

Petitioners/Appellees

vs.

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

Respondents/Appellees

Case No. 98-011-S

TABLE OF AUTHORITIES........................................................................ii,iii,iv

STATEMENT OF THE CASE.............................................................................1

SUMMARY OF ARGUMENT.............................................................................6

PROPOSITION I - THE DISTRICT COURT CORRECTLY FOUND
THAT PETITIONERS/APPELLANTS FAILED TO SATISFY THE
"IN CUSTODY" REQUIREMENT OF 28 U.S.C. §2241 (c) ..............................7

PROPOSITION 11 - IN TILLETT V. LUJAN, 931 F2d 636
(1Oth Cir. 1991) THIS COURT CONCLUDED THAT THE
CREATION OF COURTS OF INDIAN OFFENSES IS A VALID
EXERCISE OF THE POWER OF THE SECRETARY OF THE
INTERIOR AS DELEGATED TO HIM BY THE CONGRESS
WHICH HOLDS PLENARY POWER OVER INDIAN TRIBES........................11

PROPOSITION III - EVEN ASSUMING ARGUENDO THAT
APPELLANTS ARE "IN CUSTODY" FOR PURPOSES OF
28 U.S.C. §2241 OR 25 U.S.C. §1303, APPELLANTS FAILED
TO EXHAUST THEIR TRIBAL REMEDIES BEFORE SEEKING
HABEAS CORPUS RELIEF IN THE LOWER COURT ...................................14

PROPOSITION IV - THE LAW IS WELL ESTABLISHED THAT
A COURT OF APPEALS MAY SET ASIDE A DISTRICT
COURTS' FINDINGS OF FACT ONLY IF THEY ARE
CLEARLY ERRONEOUS ....................................................................................15

CONCLUSION.....................................................................................................15

CERTIFICATE OF MAILING..............................................................................16

CASES

Chatmen v. Marquez, 754 F2d 1531, 1533,34 (9th Cir.).........................................15

Davis V. Mueller, 643 F.2d 521, 525 (8th
Cir. 1981) ...............................................................................................................13

Dow v. Circuit Court of the First Circuit, 995 F2d 922,
923 (9th Cir. 1993) ...............................................................................................8, 9

Duro v. Reina, 495 U.S. 676, 684 (1990) ..........................................................12,15

Election Board v. Snake, 1 Okla. Trib. 241-42 (Ponca CIA
1988) ......................................................................................................................13

Eltayeb v. Ingram, 950 F.Supp. 95, 99 (S.D.N.Y. 1997).......................................8, 9

Hensley v. Municipal Court, 411 U.S. 345 (1973)..................................6, 8, 9, 10, 11

Jones v. Cunningham, 371 U.S. 236, 239 (1963).................................................7, 10

Justices of Boston Municipal Court v. Lydon, 466
U.S. 294, 300-02 (1984) ..........................................................................................8

Maleng v. Cook, 490 U.S. 487, 491 (1989) ..........................................................7, 8

Necklace. v. Tribal Court of Three Affiliated Tribes,
554 172d 845 (8th Cir. 1977) ................................................................................14

Owens-Illinois v. Aetna Casualty and Surety Co., 990
F2d 865 (6th Cir. 1993).........................................................................................15

Peyton v. Rowe, 391 U.S. 54 (1968) .......................................................................8

Poodry v. Tonawanda Band of Senaca Indians, 85 F.3d
874, 892-92. (2nd Cir. 1996) .................................................................................11

Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693 (1972)................................................10

Talton v. Mayes, 163 U.S. 376, 382 (1896) ...........................................................12

Tillett v. Lujan, 931 F2d 636 (C.A.10, Okl. 1991).......................................11, 12, 13

United States v. Fike, 563 F2d 809, 812 (7th Cir. 1977)........................................15

United States vs. Wheeler, 435 U.S. 313, 322 .......................................................12

Wetsit v. Stafne, 44 F3d 823 (9th Cir. 1995) .........................................................14

White v. Butterworth, 70 F3d 573, 574 (11th Cir. 1995)..........................................8

Williams v. Pyramid Lake Paiute Tribe, etc.,
635 F.Supp. 1457 (D.C. Nev. 1986) .....................................................................14

Wilson v. Lash, 457 F2d 106, 108 (7th Cir. 1972).................................................15

Statutes and Regulations

Indian Civil Rights Act,
25 U.S.C. §1301, et seq....................................................................................11, 14

25 U.S.C. §1303.............................................................................................6, 7, 11

28 U.S.C. §2241(c).........................................................................................6, 7, 11

28 U.S.C §2254(a)...................................................................................................9

25 C.F.R. §11.100(a)(12)(iii)(1997)......................................................................12

Indian Self-Determination and Education Assistance
Act of 1975 (Pub. L. No. 93-638, 88 Stat.
2203 (codified as amended at 25 U.S.C.
§450 et seq. (West 1983 & Supp. 2997) ................................................................6

Other Authorities

A Consent of Theory of Contract, 86 COLUM.
L.REV. 269 (1986) .................................................................................................5

American Indian Policy Review Commission,
95th Cong. 1st Sess., Final Report (Comm. Print 1977) at 99

Approval of Court Rules of the Court of Indian Offenses,
Muskogee Area Office Jurisdiction dated 10/17/90 (Addendum C) .....................13

Council Bill 99-94, In the Tribal Council of the Choctaw
Nation styled, "To Approve the Adoption of Muskogee
Area Offices 25 C.F.R. Court rules." (Addendum B) ...........................................14

Rule 1.20 "Habeas Corpus" of the Court Rules for the
Court of Indian Offenses, Muskogee
Area Office Jurisdiction (Addendum E) ................................................................14

Section 30 of General Provisions of the Court
of Indian Offenses, Muskogee Area Office Jurisdiction
(Addendums A2, A3) .............................................................................................5

Table of Contents for General Provisions,
Sections 1 through 44, inclusive, Court of Indian Offenses,
Muskogee Area Office Jurisdiction (Addendum Al) ..............................................5

Table of Contents of Court Rules 1.1 through 1.41,
inclusive of the Court of Indian Offenses,
Muskogee Area Office Jurisdiction (Addendum D) .............................................14

Appellants Douglas Dry, Rosie Burlison, and Juanita McConnell stand charged in the Court of Indian Offenses for the Choctaw Nation with violating various provisions of the Choctaw Criminal Code during the Choctaw Nation's 1995 Labor Day festivities at the tribal grounds in Tuskahoma, Oklahoma. See e.g. Petition para. 3. In an obvious attempt to mislead the lower court, appellants erroneously claimed that during the 1995 Labor Day festivities they were arrested for "[the] supposed violation of a tribal law prohibiting political literature". (See Petition, para. 4). In fact, the appellants were arrested and charged with: Attempting to intimidate a police officer, assault on a police officer, resisting arrest, committing a public nuisance, and disturbing the peace, willfully disturbing a parade, and using profane, violent and abusive language calculated to cause a breach of peace. (See Appellants' Appendix, Exh. 7-11)

The only Choctaw Tribal Council bill that dealt with the distribution of literature was enacted approximately one year after the petitioners were arrested at the 1995 Labor Day Festival and was invalid because it never received B.I.A. approval and is not germane to this case. (See Appellants' Appendix, Exh. 15)

In the body of the original petition filed in this action, appellants conveniently failed to inform the lower court that they were charged with the above offenses. Instead, appellants listed the section numbers of the above offenses, but identified the specific charges in the appendix in an effort to downplay the fact that several of the offenses were extremely serious. In addition, appellant Dry stands charged in the same court with assaulting a police officer during the Tribe's 1996 Labor Day festivities at the same site. (See Appellants' Appendix, Exh. 16) In an attempt to avoid standing trial on those charges, Appellants have:

(1) Unsuccessfully argued to the Choctaw Tribal [Constitutional] Court -- which has "exclusive jurisdiction" to resolve disputes arising under the Choctaw Constitution, see CHOCTAW CONST. art. XIII, § 1 -- that the court of Indian Offenses lacks criminal jurisdiction over them;1

(2) Unsuccessfully challenged the criminal jurisdiction of the Court of Indian Offenses in that court itself;2

(3) Unsuccessfully argued to the Court of Indian Offenses (Appellate Division) for the Chickasaw Nation that the Court of Indian Offenses for the Choctaw Nation lacks criminal
jurisdiction over them ;3

(4) Brought a civil suit seeking Bivens and other relief against thirty tribal, municipal, and federal employees and officials (employed at levels as high as the Cabinet of the United States), as well as two Oklahoma municipalities and the United States of America, all of whom are alleged to have committed sundry delicts and/or engaged in various conspiracies against them.4

(5) Brought a civil suit seeking §1983 and other relief against an Oklahoma municipality, its mayor, vice-mayor, city council members, and four of its police officers (who were working for the Choctaw Nation providing security on tribal lands during the Choctaw Nation's 1996 Labor Day
festivities), all of whom are alleged to have committed sundry delicts and/or engaged in various conspiracies against Appellant Dry.5

After petitioners were charged in the Court of Indian Offenses for the Choctaw Nation, they engaged in repeated instances of dilatory tactics by filing frivolous and baseless motions in an effort to delay or avoid standing trial on those charges.6 The following summary of those motions, which appellants failed to include in their list of exhibits attached to their Petition for Writ of Habeas Corpus speaks for itself:

09/28/95 Motion to Dismiss for Lack of Subject Matter in Case No. CR-95-01. (See Appellees' Appendix, Exhibit 2)

09/29/95 Motion for Disqualification of Trial Judge in Case No. CR-95-01 (See Appellees' Appendix, Exhibit 5)

10/15/95 Motion for Severance in Case Nos, CR-95-03,

CR-95-04, CR-95-05 (See Appellees' Appendix, Exhibit 6)

10/30/95 Application for Change of Venue in Case Nos. in CR-95-01, CR-95-02, CR-9503, CR-95-04, CR-95-05 (See Appellees' Appendix, Exhibit 7)

10/30/95 Motion to Quash and Set Aside in Case Nos. CR-95-01, CR-95-02 (See Appellees' Appendix, Exhibit 8)

10/30/95 Motion to Quash and Set Aside Information, in Case No. CR-95-05 (See Appellees' Appendix, Exhibit 9)

01/23/96 Motion to Withdraw Motion for disqualification of Tribal Judge in Case Nos. CR95-01, CR95-02, CR-95-05 (See Appellees' Appendix, Exhibit 10)

01/24/97 Amended Motion for Disqualification of Tribal Prosecutor in Case Nos. CR-9501, CR-95-05 (See Appellees' Appendix, Exhibit 11)

01/24/97 Second Amended Motion for Disqualification of Tribal Prosecutor in Case Nos. CR95-01, CR-95-05 (See Appellees' Appendix, Exhibit 12)

02/03/97 Motion to Stay Proceedings Pending Appeal, in Case Nos. CR-95-03, CR-9504, CR-95-05 (See Appellees' Appendix, Exhibit 13)

08/04/97 Special Appearance and Motion to Quash Subpoena in Case Nos. CR-95-01, CR95-05 (See Appellees' Appendix, Exhibit 14)

08/12/97 Withdrawal of Subpoenas Without Prejudice, in Case Nos. CR-95-01, CR-9505 (See Appellees' Appendix, Exhibit 15)

The cases referred to as Dry IV and Dry V in footnotes 4 and 5 above have not yet been decided, and for reasons set forth above the criminal charges against Appellants have not yet proceeded to trial in the Court of Indian Offenses. Moreover, Appellants Burlison and McConnell requested that the respondent Magistrate James Wolfe stay the proceedings in cases CR-95-03, 04, and 05 so they could pursue an appeal in the Choctaw Nation Court of Indian Appeals (See Appellees Appendix, Exh. 13) and Magistrate Wolfe did so. Futher delay was caused when appellants' attorney Ms. Morrison insisted that the jury pool be comprised of residents from the "entire population of Southeastern Oklahoma, when the CFR Court rules clearly provide the jury "shall consist of six residents of the vicinity in which the trial is held. . ." (See Appellants' Appendix, Exh. 59, p. 4 and Addendums Al, A2, and A3 to Appellees' Answer Brief). In this setting, Appellants sought habeas corpus relief against the Court of Indian Offenses for the Choctaw Nation and its Judge, Hon. James Wolfe in the United States District Court for the Eastern District of Oklahoma.

The twenty-nine page, 110-paragraph Petition presented seventeen counts alleging various defects in the procedures now ongoing in, and the criminal jurisdiction of the Court of Indian Offenses for the Choctaw nation, Among the imaginative bases touched in the Petition are arguments that (1) since there allegedly was no "meeting of the minds ,7 between the Bureau of Indian Affairs and the Choctaw Nation as to what the Court of Indian Offenses was to be, the Self-Determination Act8 contract pursuant to which the Court of Indian Offenses was established was not really a contract at all, Petition para. 36; (2) that Judge Wolfe is not really a judge of the Court of Indian Offenses, id. para 58; (3) that the Court of Indian Offenses' prosecutor is not really the Court of Indian Offenses' prosecutor, id. para. 66; (4) that the Choctaw Nation Tribal Council is not really the Choctaw Nation Tribal Council, id. para. 62; and (5) that the Chief of the Choctaw Nation is not really the Chief of the Choctaw Nation, id. para. 61. Absent, inter alia, these "understandings", Petitioners submit that the jurisdictional situation necessarily remains "confused". See id. para. 39.

Accordingly, the lower court dismissed the Petition for Writ of Habeas Corpus on February 2, 1998, finding that petitioners had not satisfied the "in custody" requirements of 28 U.S.C. §2241(c). Appellees were not required to answer the petition. But apart from the untenability of their overarching jurisdictional attack, the Petition suffered an equally fatal flaw: Appellants' failure to exhaust their available remedies prior to seeking relief in the lower court.

I. Appellants are clearly not "in custody" for purposes of 28 U.S.C. §2241 (c) or 25 U.S.C. § 1303 under the guidelines articulated by the Supreme Court in Hensley and its progeny.

II. The CFR Court of Indian Offenses of the Choctaw Nation is constitutional and is clearly a valid exercise of the powers of the Choctaw Tribal Council as well as the Secretary of the Interior as delegated to him by Congress which holds plenary power over Indian tribes.

III. Assuming arguendo that appellants are "in custody" for purposes of habeas corpus relief, appellants' failure to exhaust their tribal remedies precluded the lower court from granting appellants' requested relief.

IV. Appellants have not shown that the lower court's finding that the appellants are not "in custody" is clearly erroneous and, accordingly, the judgment of the lower court should be affirmed.

In the present case, it is undisputed and Appellants' brief notes that after the appellants were arrested for the offenses set forth above, they were arraigned and released on their own recognizance later that day. (Appellants Brief, p.2) Appellants contended that they are "in custody" for purposes of 28 U.S.C. §2241 (c) or, in the alternative, 28 U.S.C. §1303 and in support of this contention have cited Maleng v. Cook, 490 U.S. 488, 491 (1989). Jones v. Cunningham, 371 U.S. 236, 239 (1963); Hensley v. Municipal Court, 411 U.S. 345 (1973); Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 300-02 (1984); Dow v. Circuit Court of the First Circuit, 995 F2d 922, 923 (9th Cir. 1993), affm'd 53 F3d 338 (1994); White v. Butterworth, 70 F3d 573, 574 (11th Cir. 1995); Eltayeb v. Ingram, 950 F.Supp. 95, 99 (S.D.N.Y. 1997).

However, the cases cited by appellants are clearly not applicable to the present case by virtue of the fact that all of the above cases involved petitioners who had already been convicted of a crime and were either on parole or released pending appeal or execution of sentence. In 1976, the petitioner in Maleng, 490 U.S. at 489, was convicted of two counts of assault and one count of aiding a prisoner to escape in Washington State Court and in 1978 was sentenced to two life terms and one tenyear term. Petitioner was also convicted of bank robbery and conspiracy in federal court in 1976 and sentenced to 30 years imprisonment. In 1985, while serving his federal sentence, the State of Washington lodged a detainer with federal authorities to ensure that at the conclusion of the federal sentence, he would be returned to the state authorities to begin serving his state sentence. Citing Peyton v. Rowe, 391 U.S. 54 (1968), the Court held that the petitioner was "in custody" under the 1978 state sentence by virtue of the detainer placed by the State of Washington. Id. at 493 Likewise,- the petitioner in White, 70 F3d at 574, satisfied the "in custody" requirement because he was incarcerated as a result of a current sentence that was enhanced by a prior conviction.

In Dow, 995 F2d at 922, petitioner was convicted of driving under the influence and sentenced to a $250.00 fine, ninety day suspension of his drivers license, and fourteen hours of attendance at an alcohol rehabilitation program. The Court of Appeals for the Ninth Circuit held that the requirement of class attendance amount to "custody" under 28 U.S.C. §2254(a).

Eltayeb, 950 F. Supp. at 96-99, which is also cited in petitioner's brief involved a petitioner that was a citizen of Sudan who had entered the United States in 1980 and adjusted his status to that of lawful permanent resident in 1982. In 1987, he was convicted of criminal possession of a controlled substance in violation of §220.03 of the New York Penal Law and sentenced to three years probation. Based upon the conviction, the Immigration and Naturalization Service issued an administrative order charging petitioner with deportability. When petitioner failed to appear at the deportation hearing, the Immigration Court ordered him deported. After a series of unsuccessful collateral attacks on the order of deportation, petitioner, who was in INS custody, filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of New York. Subsequently, petitioner was released on his own recognizance pending the disposition of the petition for writ of habeas corpus. Accordingly, the District Court held that an alien, who was released from incarceration on his own recognizance, satisfied "in custody" requirement for habeas review. Again, the above case involved an alien petitioner who had an order of deportation entered against him by virtue of his conviction for a criminal offense.

Since Hensley, 411 U.S. at 35 1, is the landmark decision which articulated the general principals regarding the "in custody" requirement of the habeas corpus statutes, respondents feel that a discussion of those principals is particularly important in the present case. In that regard, the Court wrote:

"The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty, Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality in federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate. Applying that principal, we can only conclude that petitioner is in custody for purposes of the habeas corpus statute. First, he is subject to restraints 'not shared by the public in generally,' Jones v. Cunningham, supra 371 U.S. 240, 83 S.Ct. 376, that is, the obligation to appear 'at all times and places as ordered' by '(a)ny court or magistrate of competent jurisdiction.' . . . He cannot come and go as he pleases. His freedom of movement rests in the hands of the state judicial officers, who may demand his presence at any time and without a moment's notice. Disobedience is itself a criminal offense. The restraint on his liberty is surely no less severe than the conditions imposed on the unattached reserve officer whom we held to be 'in custody' in Strait v. Laird, 406 U.S. 341, 92 S.Ct. 1693, (1972)'. . . Second, petitioner remains at large only by the grace of a stay entered first by the State Trial Court and then extended by two justices of this Court. The State has emphatically indicated its determination to put him behind bars, and the State has taken every possible step to secure that result. His incarceration is not, in other words, a speculative possibility that depends on a number of contingencies over which he has no control. This is not a case where the unfolding of events may render the entire controversy academic. The petitioner has been forced to fend off the state authorities by means of a stay, and those authorities retained a determination and the power to seize him as soon as the obstacle of the stay is removed. . . Finally, we emphasize that our decision does not open the doors of the district courts to the habeas corpus petitions of all person released on bail or on their own recognizance. We are concerned here with a petitioner who has been convicted in state court and who hag apparently exhausted all of his available state court opportunities to have that conviction set aside. (Emphasis added)

In the present case, the appellants do not dispute the fact that they are free to come and go as they please. In fact, with the exception of the initial arraignments (Appellant's Appendix Exh. 2-5), they have never been ordered to appear in the Court of Indian Offenses for the Choctaw Nation by the respondent, Magistrate James Wolfe. Conversely, appellants have repeatedly filed frivolous motions which have necessitated hearings requiring the presence of the respondent Magistrate James Wolf, the tribal prosecutor, and other court personnel. In sum, with the exception of the appellants initial arraignment, every other appearance in the Court of Indian Offenses for the Choctaw Nation has been requested by the appellants. (See Appellees' Appendix, Exhibits 2-15, inclusive)

In addition, since appellants sought habeas relief under 28 U.S.C. § 2241, et seq. or in the alternative, 25 U.S.C. §1301, et seq., it is important to note that at least one court has held that the "in custody" requirement embodied in 25 U.S.C. § 1303 was not intended by Congress to empower district courts to entertain a petition for habeas corpus relief in a wider range of circumstances than the analogous provision for relief under 28 U.S.C. §2241. See Poodry v. Tonawanda Band of Senaca Indians, 85 F.3d 874, 892-93. (2nd Cir. 1996).

Clearly, appellants are asking this Court to totally disregard the principles articulated in Hensley v. Municipal Court, id., at 351 and its progeny in their effort to avoid standing trial for these offenses for which they stand charged.

At the core of appellants theory is a premise they have unsuccessfully urged to the Tribal [Constitutional] Court of the Choctaw Nation, the Court of Indian Offenses for the Choctaw Nation, the Court of Indian Offenses (Appellate Division) of the Chickasaw Nation, and the District Court of Atoka County, Oklahoma, cf. supra at footnotes nn. 1-3, 6 (citing cases), but which they continue to urge in Dry IV and Dry V, now pending before the Federal District Court for the Eastern District of Oklahoma, and Dry VI which is pending before this Court on appeal from the lower court. That premise, in short, is that due to a 1983 tribal referendum that rejected the grant of general civil, criminal, and probate jurisdiction to the Tribal [Constitutional] Court of the Choctaw Nation, no court may exercise the sovereignty of the Choctaw Nation over such matters.9 But Appellees will later establish both that no such argument has ever been accepted by any court with respect to the jurisdiction of any Indian tribe, and that doing so would essentially stand notions of federal supremacy and preemption on their heads by necessarily concluding that the Code of Federal Regulations, see 25 C.F.R. §11.100(a)(12)(ii)(1997)(recognizing the existence and jurisdiction of the Court of Indian Offenses for the Choctaw Nation), was preempted by invisible (and unexpressed) radiation from a 1983 Choctaw Nation referendum.

In Tillett, 931 F.2d at 639-40, this Court, in response to the argument that CFR Courts are invalid, wrote:

"The district court ruled that 'the creation of the Courts of Indian Offenses is a valid exercise of the power of the Secretary of the Interior as delegated to him by the Congress which holds plenary power over Indian tribes' citing Tillett, 730 F. Supp. at 383. We agree with the district court's conclusion, as well as the rationale it recited in support of its conclusion. Id at 382-83. (Citing express and implicit congressional statutory recognition of Courts of Indian Offenses, as well as Supreme Court acknowledgment of important role of tribal courts) . . . . .

Although Courts of Indian Offenses established by regulation retain some characteristics of federal agency, they also function as tribal courts by providing judicial forum through which tribe can exercise its jurisdiction until such time as tribe adopts formal law and order code; therefore, as matter of comity, federal courts should not exercise jurisdiction over case arising under its federal question or diversity jurisdiction if case is also subject to tribal jurisdiction in Courts of Indian Offenses until parties have exhausted their tribal remedies."

See also Davis v. Mueller, 643 F.2d 521, 525 (8th Cir., 1981) where the Court held "Tribal Sovereignty undoubtedly includes the power to establish a court system. Citing American Indian Policy Review Commission, 95th Cong., 1st Sess., Final Report (Comm. Print 1977), at 99. . . and the trust responsibility of the federal government includes protecting tribal sovereignty." See also Tillett, id., at 640. As the Court of Indian Appeals for the Anadarko Area Tribes found to be elementary a decade ago:

[A] tribe does not have a choice between having the Court of Indian Offenses and no court at all under the federal regulations; whenever a vacuum exists in the enforcement of tribal law, the CFR court will automatically fill the void. A tribe could displace the CFR court system by establishing its own tribal court or giving up its jurisdiction to the state under Public Law 280.

Election Board v. Snake, 1 Okla. Trib. 209, 241-42 (Ponca CIA 1988) [1988 WL521355].

Generally, as a matter of comity, tribal remedies must be exhausted before habeas claim is asserted in federal court under the Indian Civil Rights Act, 25 U.S.C. § 130 1, et seq. but the requirement is not inflexible, there must be a weighing of the need to preserve the cultural identity of the tribe by strengthening the authority of the tribal courts against the need to immediately adjudicate alleged deprivation of individual rights. See Necklace v. Tribal Court of Three Affiliated Tribes, 554 F2d 845 (8th Cir. 1977). [T]ribal court remedies should be exhausted before federal court exercises its jurisdiction. Williams v. Pyramid Lake Paiute Tribe, etc., 635 F.Supp. 1457 (D.C. Nev. 1986) [W]here member was subsequently tried and convicted of manslaughter in tribal court, she was required to exhaust her tribal remedies by appealing her conviction to trial appellate court before she would be entitled to have her petition for habeas corpus considered. Wetsit v. Stafne, 44 F3d 823 (9th Cir. 1995). In the present case, appellants failed to exhaust available tribal remedies before asserting their habeas corpus claim in the lower court. On May 10, 1994, the Choctaw Tribal Council adopted the Muskogee Area Office Court of Indian Offenses Court Rules, which were previously approved by the Muskogee Area Director on October 17, 1990. (See Addendums B, C. and D to Appellees' Answer Brief). Court Rule 1.20 specifically addresses Habeas Corpus relief and sets forth the requirements for same. (See Addendum E to Appellees' Answer Brief.)
Accordingly, appellants' failure to exhaust their available tribal remedies by initiating a habeas corpus claim under the applicable court rules precluded the lower court's consideration of appellants' petition.

The order of the District Court, which is the subject of this appeal, found that "petitioners have not satisfied the "in custody" requirement. District Courts' decision on petition for writ of habeas corpus is reviewed de novo by the Court of Appeals. See Chatmen v. Marquez, 754 F2d 1531, 1533-34 (9th Cir. 1985) and Duro v. Reina, 495 U.S. 676, 684 (1980). However, it is clear that the Court of Appeals should only set aside a district court's findings of fact in a habeas corpus action only if they are clearly erroneous. See United States v. Fike, 563 F2d 809, 812 (7th Cir. 1977); Wilson v. Lash, 457 F2d 106, 108 (7th Cir. 1972). Further, the burden is on the appellants to persuade this court that the district court's finding that they were not "in custody" is clearly erroneous. See Owens-Illinois v. Aetna Casualty and Surety Co., 990 F.2d 865 (6th Cir. 1993). Appellants have not met this burden.

For the reasons set forth above, the order of the District Court-for the Eastern District of Oklahoma's dismissing appellants' petition for habeas relief should be affirmed.

1. Durant v. Dry, No. C-96-02 (Choctaw Nation, Tribal [Constitutional] Ct., Dec. 3, 1996) [hereinafter "Dry 1"]. See Appellants' Appendix, Exhibit 46 and Appellees' Appendix, Exhibit 1 (back)

2 Eg., Choctaw Nation v. Dry, No. CRM-95-01 (Choctaw Nation, Ct. Ind. Off., January 24 (1997) [hereinafter "Dry II"]; Choctaw Nation v. McConnell, No. CRM-95-03 (Choctaw Nation, Ct. Ind. Off., Jan. 24, 1997; Choctaw Nation v. Burlison, No. CRM-95-04 (Choctaw Nation, Ct. Ind. Off., Jan. 24, 1997. See Appellees' Appendix, Exhibit 2 (back)

3 Dry v. Court of Indian Offenses of the Choctaw Nation, No. CIV-96-027 (Chickasaw Nation, Ct. Ind. Off. (App. Div.), June 12, 1997) [hereinafter "Dry 111"]. See Appellees' Appendix, Exhibit 3 (back)

4 Dry v. United States, No. CIV-97-113-B (E.D. Okla. filed Feb. 26, 1997) [hereinafter "Dry IV"]. (back)
5 Dry v. City of Durant, No. CIV-97-344-B (E.D. Okla. filed May 30, 1997) [hereinafter "Dry V"]. (back)

6 In addition, an unsuccessful related lawsuit, of which the petition itself takes notice, see Petition para. 75 & N. 18, involved claims against four Oklahoma municipalities, four municipal police departments, three county sheriffs' departments, the Choctaw Nation, the United States Bureau of Indian Affairs, and the Governor of Oklahoma. See Burlison v. Choctaw Nation, No. C-96-198, slip op. (Okla. D.Ct. (Atoka Co.), Aug. 8, 1997.) See Appellees' Appendix, Exhibit 4 (back)

7 Petitioners' archaic interpretation of the "meeting of the minds" theory of contract has, of course, been inoperable in the manner they invoke it for generations. See generally, e.g. Randy E. Barnett, A Consent Theory of Contract, 86 COLUM. L. REV. 269 (1986) (back)

8 Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2203 (codified as amended at 25 U.S.C. §450 at seq. (West 1983 & Supp. 1997)). (back)

9 The Petition itself notes that Petitioners stand charged with violations of tribal (not federal) law, e.g. Petition paras. 6, 9 and the United States Supreme Court has recently reaffirmed at century-old line of caselaw, cf. Talton v. Mayes, 163 U.S. 376, 382 (1896)(holding that tribal "powers of local government" "are local powers not created by the Constitution"), when it noted that "[United States v.] Wheeler [435 U.S. 313, 322 (1978),] reaffirmed the long-standing recognition of tribal jurisdiction over crimes committed by tribal members, "Duro v. Reina, 495 U.S. 676, 684 (1990) (back)

I certifed that on the 8th day of June, 1998, 1 placed in the U.S. Mail, first class, postage prepaid, the original and 25 copies of Appellees' Answer Brief, to the Clerk of the United States Tenth Circuit Court of Appeals, Byron White U.S. Courthouse, 1823 Stout Street, Denver, CO, 80257, and

I certify that on the 8th day of June, 1998, 1 placed in the U.S. Mail, first class, postage prepaid, two copies of the above and foregoing Appellees' Answer Brief to Scott Kayla Morrison, Dry and Morrison Law Firm 103 1/2 West Main, P.O. Box 637, Wilburton, OK, 74578.

TO APPROVE the adoption of Muskogee Area Office's 25 CFR Court rules.

WHEREAS, the Choctaw Nation CFR Court of Indian 0ffenses needs to establish a complete and updated code of laws to govern the Court System, and

WHEREAS, the Choctaw Nation CFR Court of Indian 0ffenses wishes to adopt Muskogee Area Office Court of Indian 0ffenses Court Rules, and

WHEREAS, these Court Rules can be amended at any time in conjunction with Council approval.

THEREFORE BE IT ENACTED by the Tribal Council of the Choctaw Nation that this Act be cited as approval for the attached Court Rules to be adopted for the Choctaw Nation CFR Court of Indian 0ffenses.

CERTIFICATION

I, the undersigned, as Speaker of the Tribal Council of the Choctaw Nation of Oklahoma, do hereby certify that the Tribal Council is composed of twelve (12) seats. Eight members must be present to constitute a quorum. I further certify that eleven (11) members answered roll call and
that a quorum was present at the Regular Session of the Tribal Council at Tuskahoma, Oklahoma on May 6, 1994. I further certify that the foregoing Council Bill CB-99-94 was adopted at such meeting by an affirmative vote of eleven (11) members, zero (0) negative votes, and zero (0) abstaining.

Dated: 5-10-94

COURT RULES
COURT OF INDIAN OFFENSES
MUSKOGEE AREA OFFICE JURISDICTION

Rule 1.1 Court Hours . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Rule 1.2 Terms and Location of Court . . . . . . . . . . . . . . . . . . . . . . . . 1
Rule 1.3 Court Rules-Authority to Adopt-Judges Conference. . . . . . . 2
Rule 1.4 Court Costs--Civil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rule 1.5 Court Costs--Criminal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Rule 1.6 Paupers Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rule 1.7 Admission to Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rule 1.8 Motions and Pleadings to be Signed . . . . . . . . . . . . . . . . . . .4
Rule 1.9 Copies of Pleadings and Motions . . . . . . . . . . . . . . . . . . . . 4
Rule 1.10 Originals to be Filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Rule 1.11 Printed or Duplicated Forms . . . . . . . . . . . . . . . . . . . . . . . . 5
Rule 1.12 Respect for Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rule 1.13 Court Officers as Sureties . . . . . . . . . . . . . . . . . . . . . . . . . .5
Rule 1.14 Appointment of Bailiffs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rule 1.15 Continuances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Rule 1.16 Extensions of Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rule 1.17 Inadvertent Settings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rule 1.18 Injunctions-Restraining Orders . . . . . . . . . . . . . . . . . . . . 6
Rule 1.19 Filing Stamp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rule 1.20 Habeas Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Rule 1.21 Service of Writ of Habeas Corpus . . . . . . . . . . . . . . 8
Rule 1.22 Assignment of Numbers to Cases . . . . . . . . . . . . . . . . . . . . 8
Rule 1.23 Written Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Rule 1.24 Disclosure of Information . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Rule 1.25 Police Commissioner's Fee . . . . . . . . . . . . . . . . . . . . . . . . . 9
Rule 1.26 Preparation of Trial Documents, Headings . . . . . . . . . . . . . 9
Rule 1.27 Disqualification of Judges . . . . . . . . . . . . . . . . . . . . 10
Rule 1.28 Withdrawal as Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Rule 1.29 Trial--Appearances, Witnesses and Exhibits . . . . . . . . . . . . 11
Rule 1.30 Trial--Opening Statements . . . . . . . . . . . . . . . . . . . . . . . . . 11
Rule 1.31 Trial --Testimony from the Witness Stand . . . . . . . . . . . . . 11
Rule 1.32 Trial--Limitations on Argument . . . . . . . . . . . . . . . . . . . . . .12
Rule 1.33 Default, Agreed or Uncontested Matters . . . . . . . . . . . . . . . 12
Rule 1.34 Criminal Cases--Jail Bonds . . . . . . . . . . . . . . . . . . . . 12
Rule 1.35 Criminal Cases--Bondsmen . . . . . . . . . . . . . . . . . . . . 12
Rule 1.36 Criminal Cases--Appearance on Jail Bonds . . . . . . . . . . . . . 13
Rule 1.37 Criminal Cases--Preliminary Considerations . . . . . . . . . . . . 13
Rule 1.38 Jury Dockets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Rule 1.39 Non-Jury Dockets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rule 1.40 Motion Docket . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rule 1.41 Law Library--Establishment--Free Use . . . . . . . . . . . . . . . . 16

Rule 1.19 Filing Stamp.

The Clerk shall secure a rubber stamp which shall have the word "Filed" in bold letters at least 1/2 inches high. The stamp shall also have the words "Time, Date and Recorded: Book" Page." Blank lines shall be of sufficient length to permit legible hand written entry of pertinent information. All documents filed with the Court Clerk shall bear this stamp, the time, date, and the book and page where entered in the records.

Rule 1.20 Habeas Corpus.

a. Application for the writ shall be made by petition, signed and verified by the plaintiff or by some person in this behalf, and shall specify:

1. By whom the person in whose behalf the writ is applied for is restrained of his liberty, and the place where, naming all parties, if they are known, or describing them, if they are not known.

2. The cause or pretense of the restraint, according to the best of knowledge and belief of the applicant.

3. If the restraint be alleged to be illegal, in what the illegality consists.

b. If filed pro se, such petition shall be on forms supplied by the Court Clerk.

c. Writs of habeas corpus may be granted by any agency court in term time, or by a Judge of any such court, either in term or vacation; and upon application the writ shall be granted without delay.