DOUGLAS DRY, ROSIE BURLISON,
and JUANITA McCONNELL,

Petitioners,

Vs.

CFR COURT OF INDIAN OFFENSES
FOR THE CHOCTAW NATION,

Respondents.

Case No. 98-7027

 

Scott Kayla Morrison
Dry and Morrison Law Firm
103 1/2 West Main
Post Office Box 637
Wilburton, OK 74578
(918) 465-5033

Oral Argument Requested

Attorney for Petitioners
Douglas Dry
Rosie Burlison
Juanita McConnell

DOUGLAS DRY, ROSIE BURLISON,
and JUANITA McCONNELL,

Petitioners,

VS.

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

Respondents.

Case No. 98-7027

 

Scott Kayla Morrison
Dry and Morrison Law Firm
103 1/2 West Main
Post Office Box 637
Wilburton, OK 74578
(918) 465-5033

Oral Argument Requested

Attorney for Petitioners
Douglas Dry
Rosie Burlison
Juanita McConnell

DOUGLAS DRY, ROSIE BURLISON,
and JUANITA McCONNELL,

Petitioners,

VS.

Case No. 98-7027

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

Respondents.

Petitioners Dry, Burlison and McConnell filed a writ of habeas corpus on January 9, 1998, in U.S. District Court for the Eastern District of Oklahoma pursuant to 28 U.S.C. §2241 or in the alternative, 25 U.S.C. §1303. The Petitioners are criminally charged in the Choctaw CFR Court of Indian Offenses, a court that is allegedly exercising federal criminal jurisdiction contracted to the Choctaw Nation via a PL-93-638 contract. There is question whether this is a federal court, where 28 U.S.C. §2241 would be applicable, or a tribal court, where 25 U.S.C. § 13 03 would be applicable.

District Judge Frank Seay dismissed the writ stating that Petitioners were not in custody pursuant to 28 U.S.C. §2241(c). This was a final order of the district court and this appeal was filed pursuant to 28U.S.C. §1291.

1. Whether Petitioners were in custody as required by 28 U.S.C. §2241(c).

2. Whether Petitioners, in a writ of habeas corpus, may challenge the jurisdiction of the court holding them. 3. Whether the Choctaw CFR Court of Indian Offenses is a federal court exercising federal criminal jurisdiction or a tribal court. If a tribal court, from what source does the criminal jurisdiction flow, given that Choctaw citizens withheld criminal jurisdiction from their Choctaw government.

Petitioners Dry, Burlison and McConnell were arrested by the Choctaw Nation on September 4, 1995. The Petitioners were incarcerated and later released on their own recognizance on the day of the arrest. Petitioners have challenged the criminal jurisdiction of the Choctaw CFR Court of Indian Offenses. The Choctaw voters did not grant criminal jurisdiction to the tribe when adopting the Choctaw Constitution in 1983. The Choctaw Nation and the Bureau of Indian Affairs (BIA) have taken the position that the tribe contracted federal criminal jurisdiction in 1991 and have since that time been exercising federal criminal jurisdiction. Petitioners filed a writ of habeas corpus in U.S. District Court for the Eastern District of Oklahoma on January 9, 1998, alleging seventeen reasons why the Petitioners should be released, including questioning the jurisdiction of the Choctaw CFR Court of Indian Offenses. Judge Frank Seay dismissed the writ on February 2, 1998, stating the Petitioners were not "in custody" pursuant to 28 U.S.C. § 2241(c). Petitioners appeal that ruling and assert that they are "in custody" for purposes of a writ of habeas corpus and assert that they may challenge the jurisdiction of the court denying them liberty in a writ of habeas corpus.

Petitioners are "in custody" even though they are released on their own recognizance pending trial. Petitioners are held by a court that does not have criminal jurisdiction to hold them. The Choctaw Nation cannot exercise federal criminal jurisdiction because of statutory prohibitions and the trust responsibility of the federal government to Indian citizens. ARGUMENT

PROPOSITION 1: PETITIONERS ARE "IN CUSTODY" FOR PURPOSES OF 28 U.S.C. SECTION 2241 (c).

The "in custody" language of 28 U.S.C.§2241(c) does not require that a prisoner be physically confined in order to challenge a sentence on habeas corpus. Maleng v. Cook, 490 U.S. 487, 491 (1989). A defendant released on his (or her) own recognizance may file a writ of habeas corpus. Jones v. Cunningham, 371 U.S. 236,239 (1963); Hensley v. Municipal Court, 411 U.S. 345 (1973); Justices of Boston Municipal Curt v. Lydo , 466 U.S. 294, 300-02 (1984); Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir. 1993), affm'd 53 F.3d 338 (1994); White v. Butterworth, 70 F.3d 573, 574 (11th Cir. 1995); Eltayeb v. In 950 F.Supp. 95, 99 (S.D.N.Y. 1997). Petitioners were released on their own recognizance at their initial arraignment on September 4, 1995. Bail conditions have not changed since that time. Petitioners are "in custody" for purposes of 28 U.S.C. §2241(c).

PROPOSITION 11: PETITIONERS MAY CHALLENGE JURISDICTION OF THE COURT RESTRAINING THEM BY A WRIT OF HABEAS CORPUS.

Petitioners challenged the jurisdiction of the Choctaw CFR Court of Indian Offenses in the writ filed in the district court. Habeas corpus relief is available to challenge the jurisdiction of the court restraining the liberty of the defendant. Keizo v. Henry, 211 U.S. 146, 148 (1908); Ex Parte Seibold, 100 U.S. (10 Otto) 375, 375 (1879); Houser v. U.S., 508 F.2d 509, 512 (8th Cir. 1974); Rhode v. Olk-Long , 84 F.3d 284, 287 (8th" Cir. 1996). The writ of habeas corpus should not have been dismissed in the district court and the court should have determined whether the Choctaw CFR Court of Indian Offenses is a legitimate court exercising legitimate criminal jurisdiction.

PROPOSITION III: CRIMINAL JURISDICTION OF THE CHOCTAW CFR COURT OF INDIAN OFFENSES HAS BEEN LIMITED BY TRIBAL CITIZENS AND NO STATUTORY AUTHORITY EXITS FOR CONTRACTING FEDERAL JURISDICTION.

In 1983, Choctaw citizens ratified a constitution for the Choctaw Nation pursuant to a court order entered in Morris v. Watt 640 F.2d 404 (D.C. Cir. 198 1). During the constitutional referendum process, citizens were specifically asked whether to extend the jurisdiction of the Choctaw CFR Court of Indian Offenses to include criminal jurisdiction. The citizens voted no. See paragraph I I of the writ and Exhibit 20 to writ. The Court of Indian Appeals, the appeals court for the Choctaw CFR Court of Indian Offenses, held in Morrison v. Choctaw Nation , 23 ILR 6093 (June 1996), that the jurisdiction of the Choctaw CFR Court of Indian Offenses was limited to "decide disputes arising under any provisions of this Constitution or any rule or regulation enacted by the Tribal Council." See appendix to the writ. The Choctaw CFR Court of Indian Offenses did not have jurisdiction to hear a civil matter, according to Morrison . This is the only decision from the appeals court, but by the same reasoning, the court would not have criminal jurisdiction under the Choctaw Constitution. Authority to contract with the federal government to exercise federal criminal jurisdiction must be found outside of the Choctaw Constitution.

PROPOSITION IV: THE INDIAN LAW ENFORCEMENT REFORM ACT DOES NOT GRANT CRIMINAL JURISDICTION TO THE TRIBES.

The Indian Law Enforcement Reform Act (ILERA), 25 U.S.C. § 280 1, et seq., provides a mechanism for tribes to enter into agreements with the Bureau of Indian Affairs and local law enforcement agencies when a tribe has existing criminal jurisdiction. Section 2806(d) specifically provides that "this Act alter neither the civil or criminal jurisdiction of the United States, Indian tribes, States or other political subdivision or agencies." The express language of this section disallows a grant of jurisdiction, through contract or otherwise, from one entity to another. If the tribe did not have criminal jurisdiction prior to the passage of this Act, this Act does not alter the lack of criminal jurisdiction, limited by the Choctaw citizens to their constitutional tribal government. Tribal criminal jurisdiction must be found elsewhere.

PROPOSITION V: THE BUREAU OF INDIAN AFFAIRS CANNOT CONTRACT FEDERAL CRIMINAL JURISDICTION TO AN INDIAN TRIBE.

The Choctaw Nation entered into a Self-Governance Compact with the United States to take effect on October 1, 1995. See Exhibit 55 to writ. The Choctaw CFR Court of Indian Offenses and law enforcement programs were included in this Compact. Tribal Self-Governance amendments to the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §458aa, et seq., provides in Section 458cc (k) a disclaimer. "Nothing in this section is intended or shall be construed to expand or alter existing statutory authority in the Secretary so as to authorize the Secretary to enter into any agreement .... with respect to functions that are inherently Federal or where the statute establishing the existing program does not authorize the type of participation sought by the tribe." (Emphasis added.) The exercise of federal criminal jurisdiction is inherently federal and cannot be contracted to a tribe.

The federal government has felony jurisdiction under the Major Crimes Act, 18 U.S.C. § 115 3, the Federal Enclaves Act, 18 U.S.C. § 1152, and the Assimilative Crimes Act, 18 U. S.C. §13. Misdemeanor jurisdiction is tribal where the tribe retains inherent criminal jurisdiction over its members not limited by treaty, federal act or the tribal constitution. When a people, collectively identified as a tribe, has limited, through ratification of a constitution, the power of its government to exclude criminal jurisdiction, the federal government is responsible to exercise such misdemeanor jurisdiction under its trust responsibility.

The federal government has a trust responsibility to the Choctaw Nation. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) I (183 1); U.S. v. Kagama , 118 U.S. 375 (1886); Lone Wolfe v. Hitchcock, 187 U.S. 553 (1903). This responsibility cannot be diminished by contract. The federal government is attempting to contract away this trust responsibility through a contract with the Choctaw Nation as it pertains to misdemeanor jurisdiction.

PROPOSITION VI: THE CHOCTAW CFR COURT OF INDIAN OFFENSES HAS BEEN TREATED AS A TRIBAL COURT AND NOT A FEDERAL AGENCY COURT.

The Code of Federal Regulations establishes Courts of Indian Offenses, also known as CFR Courts. 25 C.F.R Part 11. These CFR Courts retain some characteristics of an agency of the federal government, Tillett v. Lujan, 931 F.2d 636, 640, (10' Cir. 1991), but these courts also may function as a tribal court by which a tribe may exercise jurisdiction. Id. However, if a tribe does not have criminal jurisdiction to exercise, the BIA must operate the court. Twenty-five CFR Part 11.100(c) provides that the regulations apply until such time as a tribe, in accordance with its constitution and by-law, adopt a law and order code. (Emphasis added). If the constitution prohibits criminal jurisdiction, the regulations of 25 CFR Part I I apply. The Petitioners, however, were charged with violations of Choctaw codes, not CFR regulations.

Additionally, the magistrate of the CFR Court is appointed by the Assistant SecretaryIndian Affairs or his or her designee. 25 CFR Part 11.201 (a). Magistrate Wolfe was appointed by the Chief of the Choctaw Nation. Writ, Count IX, p. 15-17 with supporting exhibits. The tribal prosecutor is appointed by the superintendent of BIA. 25 CFR Part 11.204. Robert Rabon was appointed by the Chief of the Choctaw Nation. Writ, Count X, p. 17-18. The Choctaw CFR Court of Indian Offenses is treated as a tribal court in clear violations of the Choctaw constitutional limitations.

Further, Robert Rabon acting as both the tribal prosecutor and tribal attorney violations the separation of powers of both the U.S. Constitution and the Choctaw Constitution. Writ, Counts V and VI, p. 12-14 with supporting documents. Petitioners will point out to this Court that Robert Rabon represents the Choctaw CFR Court of Indian Appeals and Magistrate Wolfe in this appeal, not the U.S. Attorney's Office or the Office of the Solicitor as would be the case if the court was a federally administered court. In Tillet one of the defendants was a magistrate of a Court of Indian Offenses, Phil Lujan. All of the defendants, including Lujan, were represented either by the U.S. Attorney's Office or the Office of the Regional Solicitor. The tribal prosecutor did not represent the magistrate of a Court of Indian Offenses. The fact that no attorney from the Department of Justice or the Department of Interior has entered an appearance in this case demonstrates that the Choctaw CFR Court of Indian Offenses is the not a federally administered court exercising federal criminal jurisdiction, but a tribal court acting outside the scope of its constitutional authority.

PROPOSITION VII: THE FEDERAL GOVERNMENT CANNOT CONTRACT AWAY ITS TRUST RESPONSIBILITY TO PETITIONERS.

The Tribal Self-Governance Act further provides, in 25 U.S.C. § 485cc (b) (9), that the Secretary of Interior is prohibited from "waiving, modifying or diminishing in any way the trust responsibility of the United States with respect to Indian tribes and individual Indians." The Compact, in Article IV, specifically reaffirmed the trust responsibility of the United States. This Article, in Section 1, mirrors the language of 25 U.S.C. 485cc (b) (9). "Nothing in this Compact is intended to, nor should be interpreted to terminate, waive, modify, diminish or reduce the Trust responsibility of the United States to the Tribe or individual Indians." Contracting federal criminal jurisdiction, an inherent federal function, to the beneficiary to exercise is specifically disallowed under specific provisions of federal acts and compacts. The federal government has a trust responsibility to Petitioners that is co-extensive with its trust responsibility to the Choctaw Nation. It cannot contract away its trust responsibility toward one beneficiary to another beneficiary to exercise.

PROPOSITION VII: THE CHOCTAW NATION OR THE BIA CANNOT SUBVERT THE WILL OF CONGRESS THROUGH CONTRACT.

The Choctaw Nation has taken the position, by approving law enforcement contracts with the BIA, that the will of Congress and the will of the People are irrelevant and unimportant. According to the tribal government, 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 a law enforcement program, see Exhibits 24-35 to the writ, in Choctaw Country, administered by the executive branch of government and contracted through the legislature of the Choctaw tribal council, even though Choctaw voters have denied our government criminal, or even civil, jurisdiction in our Constitution. 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 Choctaw People by the tribal government and the BIA is accomplished by interpreting our constitution, or rather misinterpreting our constitution. The tribal government and the BIA have broadly interpreted our constitution to mean that the specific language limiting the judicial branch is without effect. The tribal government and the BIA have interpreted our constitution to be void and of no legal effect in its attempts to impose a hybrid Choctaw tribal/federal CFR Court on the Choctaw people. Congress, but not the BIA,1 and not the tribal government, has plenary power over Indian tribes.

The tribal government and the BIA are attempting to turn back the clock to pre-Harjo v Kleppe, 420 F. Supp. 110 (D.D.C. 1976), times. In Harjo, 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 , 640 F.2d 404 (D.C. 1981), ordered Choctaw constitutional reform. In 1983, 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 self-determination was expressed in that constitutional election, that is, the exercise and expression of Indian people must be respected by the federal government.

The tribal government and BIA assert that the will of Congress, and the will of the Choctaw People, not only should be, but must be ignored. The tribal government and 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 tribal government, by signing these contracts with the BIA, has brought back the "bureaucratic imperialism" disallowed in Harjo and Morris v. Watt . The tribal government is not exercising self-determination by signing PL-638 contracts. The Choctaw people exercised selfdetermination by not granting criminal jurisdiction over us to our tribal government. Until the Choctaw people, with a constitutional amendment, change the limits of our constitution, any action by the tribe to subvert Congressional purpose of selfdetermination is unlawful and void.

Petitioner pray for an order directing the district court to hold an evidentiary hearing on the jurisdiction of the court and the legitimacy of the laws and courts holding Petitioners.

1.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 plenary 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)

I, Scott Morrison, certify that on this 16 day of April, 1998, 1 placed in U.S. mail, first class, postage pre-paid, the above and foregoing Appellants' Brief and Appendix to Appellants' Brief to the Robert L. Rabon, Post Office Box 726, Hugo, Oklahoma 74743.