DOUGLAS DRY, ROSIE BURLISON,

and JUANITA McCONNELL,

Case No.

Petitioners,

vs..

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

Respondents.

The above named petitioners, Douglas Dry, Rosie Burlison and Juanita McConnell, request a writ of habeas corpus be issued by this Court releasing them from illegal charges pending in a court that does not have criminal jurisdiction to which the petitioners would be subject to imminent incarceration upon conviction, no separation of powers, lack of due process, violations of the U.S. constitution and federal law, as well as treaties and constitution of the Choctaw Nation.

1. Petitioners relies on 28 U.S.C. §§ 2241 et seq., or in the alternative, 25 U.S.C. §§ 1301 et seq., giving this Court jurisdiction to grant this relief. Venue is proper in this Court in that the acts complained of in this Petition occurred in Tuskahoma, Oklahoma, which is in the Eastern District of Oklahoma.

2. The petitioner Douglas Dry is of the citizen United States of America as well as a Choctaw Indian and a member of the Choctaw Nation. The petitioners Rosie Burlison and Juanita McConnell are citizens of the United States of America as well as Choctaw Indians and members of the Choctaw Nation.

3. The CFR Court of Indian 0ffenses for the Choctaw Nation is a federal court exercising federal criminal jurisdiction for the Choctaw Nation, according to admissions of the Bureau Of Indian Affairs (BIA) or in the alternative, is a tribal court acting outside the scope of authority granted under the Choctaw Constitution. James Wolfe is presiding magistrate.

4. On September 4, 1995, Douglas Dry, Rosie Burlison, Juanita McConnell and Randal Hicks1 were arrested by law enforcement officers of the Choctaw Nation when they passed out pamphlets at the Choctaw Labor Day Festival, Tuskahoma, Oklahoma, in supposed violation of tribal law prohibiting political literature on federal/tribal land. Exhibit I.2 At arraignment in the CFR Court of Indian 0ffenses for the Choctaw Nation (hereinafter "CFR Court") on September 4, 1995, petitioners Dry and Burlison were charged with disturbing the peace and resisting arrest Petitioner McConnell was charged with disturbing the peace. Magistrate Wolfe instructed the tribal prosecutor to provide petitioners with copies of Choctaw laws and the "resolution as to distribution of literature" within seven (7) days. Exhibits 2, 3, 4 and 5.

5. On September 5, 1995, tribal prosecutor Robert Rabon told a Denison Herald reporter that "It is my understanding ... [t]hat the tribal council passed a law prohibiting the passing out of literature on tribal lands." Exhibit 6. R. Rabon is the son and law partner of tribal attorney Bob Rabon. B. Rabon was the tribal attorney as a member of the law firm representing the Choctaw Nation, and the parliamentarian for the Choctaw council. He or R. Rabon attend each council meeting.

6. On September 14, 1995, petitioner Dry was charged with violating Sections 5-5, 16-12, 17-8, 41-2, 46-3, 46-4, and 46-5 of the Choctaw Criminal Code. Petitioner Burlison has been charged with violating Sections 2-11, 5-4, 16-7, 41-2, 46-3, 46-4, and 46-5. Petitioner McConnell has been charged with violating Sections 5-5, 41-2, 46-3, 46-4, and 46-5. Exhibits 7 through 11.

7. On July 22, 1996, petitioners filed a petition for writ of prohibition with the Court of Indian 0ffenses for the Chickasaw Agency,3 asking the court to prevent further prosecution in the Choctaw CFR Court. On June 12, 1997, the court issued an order ruling that it did not have express jurisdiction to enter such a writ. Exhibit 12.

8. On September 2, 1996, Durant Police officers in Durant uniforms, wearing Durant Police Department badges, arrested Petitioner Dry for allegedly "possessing" literature. Exhibit 13 and 14.4 At no time did the officers inform Petitioner Dry he was being detained for allegedly assaulting a police officer. Rather, the officers were concerned with enforcing council Bill 113, Exhibit 15, even though the officers do not refer to this resolution by name. CB-113 does not prohibit the "possessing"' literature of any kind, merely passing out of literature outside a permitted area. The video of this arrest is at the end of Exhibit I video after Petitioner McConnell's book-in.

9. On January 24, 1997, charges were filed against petitioner Dry for assaulting a Durant police office (Ben Veenstra) at Tuskahoma, Oklahoma, during the 1996 Labor Day Festival, in violation of Section 17-8 of the Choctaw Criminal Code. Exhibit 16. On March 5, 1997, defense counsel filed a motion to dismiss, Exhibit 17, and on March 7, 1997, filed a supplemental motion to dismiss, Exhibit 18. Six months later, tribal prosecutor responded on September 2, 1997, Exhibit 19. On September 26, 1997, the motions were overruled, then petitioner Dry was arraigned.

10. Petitioners re-allege and incorporates paragraphs I through 7 herein.

11. The Choctaw Nation was ordered by a federal judge in Morris v. Watt 640 F.2d. 404, (D.C. Cir. 1981) to amend its constitution pursuant to the procedures set forth in Harjo v. Kleppe 410 F.Supp. I 110 (D.C. 1976). The Choctaws were to vote on fundamental differences between the 1860 and 1979 Choctaw Constitutions. One question specifically addressed the jurisdiction of the Choctaw court.

12. On September 28, 1995, defense counsel filed a motion to dismiss the September 4, 1995, criminal charges against the petitioners for lack of subject matter jurisdiction. Defense asserted that the Choctaw citizens denied criminal jurisdiction to the tribe in 1983 when the 1983 Choctaw constitution was adopted. The Choctaw voters were specifically asked "Shall the tribal court's jurisdiction be extended to include general civil, criminal and probate matters"' The Choctaw citizens voted No on this question. Exhibit 20.

13. At a March 5, 1996, hearing on this motion to dismiss filed by petitioners in Choctaw CFR Court, Fred Ragsdale, Jr., was called as a witness. Exhibit 21. He was the consultant/arbitrator hired by the BIA on the Choctaw Constitutional reform process.5 He testified that criminal jurisdiction was specifically excluded from the Choctaw Constitution. Tr. p. 10 - 11. If the tribe ever decided to exercise criminal jurisdiction, or the law changed, the Choctaw constitution could be amended so Choctaw citizens could grant criminal jurisdiction to the tribe. Tr. p. 13. The Choctaw Constitution has not been amended since 1983.

14. At the December 8, 1990, Choctaw council meeting, Bob Rabon informed the council that the tribe must amend its constitution to have a court with general civil and criminal jurisdiction and law enforcement program.

15. The Indian Law Enforcement Reform Act, 25 U.S.C. § 2801, et seq. provides a mechanism for tribes to contract for law enforcement activities, subject to "the provisions of this Act and other applicable Federal or tribal laws," 25 U.S.C. § 2802 (c). Section 2806 (d) provides that "this Act alter neither the civil or criminal jurisdiction of the United States, Indian tribes, States or other political subdivisions or agencies, nor the law enforcement, investigate, or judicial authority of any Indian tribe, State, or political subdivision or agency thereof or of any department, agency, court, or official of the United States other than the Secretary." The Indian Law Enforcement Reform Act nor any other statute or provision of the U.S. Constitution allows contracting of federal criminal jurisdiction to an Indian tribe. With criminal jurisdiction specifically disallowed by the tribal voters, the Choctaw Nation cannot contract for a court or law enforcement program. With no criminal jurisdiction, either tribal or federal, the Choctaw Nation cannot criminally prosecute any Choctaw citizen. Petitioners have always asserted the position that the federal government can exercise criminal jurisdiction through a federally administered CFR Court without interference by the tribe pursuant to tribal constitutional prohibitions, but the Choctaw Court is not such a court. Petitioners are being prosecuted in a court that does not have jurisdiction and must be released.

16. On September 20, 1995, the Court of Indian Appeals for the Choctaw CFR Court held in Morrison v. Choctaw Nation CA-95-01, that the CFR Court had only exclusive jurisdiction to decide disputes arising under any provision of the Choctaw Constitution 23 ILR 6093, attached hereto for convenience. This case is the only case to be decided in the Court of Indian Appeals for the Choctaw Nation and is the controlling case. The CFR Court is without jurisdiction to hear civil or criminal matters and the court's exclusive jurisdiction is limited to constitutional interpretation.

17. On March 6, 1997, the Bureau of Indian Affairs, a federal agency, admitted that the Choctaw CFR Court was exercising federal criminal jurisdiction contracted from the federal government in a separate civil action, Burlison v. City of Atoka, CIV-96-616-S. Exhibit 22.

18. The BIA is attempting to circumvent the will of the Choctaw people by allegedly contracting with the tribal government to exercise federal criminal jurisdiction. Judge Bryant characterized the actions of the federal officials in Harjo as an example of "bureaucratic imperialism," 420 F.Supp. at 1130, and that the "influence and control of the (BIA) over ... the Creek national government between 1920 and 1970 was exercised wholly without benefit of any specific congressional mandate." The BIA has again created its own fiefdom in a tribal government, the Choctaw government, by imposing criminal jurisdiction exercised by the Choctaw Nation when the people specifically disallowed such exercise. The BIA may exercise criminal jurisdiction in the absence of tribal jurisdiction. However, the BIA may not contract to the tribe federal criminal jurisdiction, nor may the BIA contract with the tribe to exercise tribal criminal jurisdiction since the inherent tribal jurisdiction flows from the Choctaw people, not the federal government. This attempt to impose tribal criminal jurisdiction, by contract, over the objection of the Choctaw people reverts the situation back to pre-Harjo days.

19. The Choctaw Nation is violating its own constitution by contracting with the BIA to exercise criminal jurisdiction. This action expands the jurisdiction of the tribe without a vote of the people. The BIA was a party to the lawsuit in Morris v, Watt, and conducted the constitutional reform elections pursuant to a federal court order. The BIA approved the current Choctaw Constitution, after its ratification by the Choctaw voters. The BIA was well-aware of the constitutional limitations. By ignoring the will of the people, the BIA has circumvented the federal policy of self-determination.

20. Petitioners realleges and incorporates paragraphs 1 through 7.

21. Petitioners were told that they were being arrested for violating a law prohibiting passing out of literature on tribal lands on September 4, 1995. Tribal prosecutor Rabon was ordered to provide such resolution to petitioners at the September 29, 1995, arraignment. Exhibit 23, transcript of September 29, 1995, hearing, p. 4. However, no such law existed at that time. Petitioners were arrested for violating a law that did not exist.

22. Petitioners realleges and incorporates paragraphs I through 9 herein.

23. On September 14, 1995, ten days after the arrests and arraignments, formal charges were filed against petitioners. On January 24, 1997, Petitioner Dry was additionally charged with an alleged violation of Choctaw Criminal Codes arising out of the September 2, 1996, arrest These codes were adopted at the December 1991 council meeting. Exhibit 24, and approved by the BIA on March 3, 1992, Exhibit 25.

24. On June 19, 1992, the Choctaw council adopted CB- 111-92, approval to contract the CFR Court, Court of Indian 0ffenses, established by 25 CFR, Part 11. Exhibit 26.

25. On January 12, 1994, the Choctaw council adopted CB-50-94, to approve adoption of the Choctaw Criminal Procedure Code. Exhibit 27.

26. On May 10, 1994, the Choctaw council adopted CB-99-94, adopting the Muskogee Area Office Court of Indian 0ffenses Court Rules. Exhibit 28. The council minutes reflect that the criminal statute of limitations were amended to six months for BIA action. The purpose was to prohibit a sexual assault victim of then Chief Hollis Roberts from filing lawsuit in the Choctaw
CFR Court.6 Exhibit 29. This is the last time codes, procedures or rules have been adopted by the tribal council until November 8, 1997, when the council adopted jury selection procedures.7

27. The petitioners were charged under the Choctaw Criminal Code adopted in December 199 1, and Choctaw Criminal Procedure Codes adopted in January 1994- However, these codes and procedures have been superseded by the May 10, 1994, adoption of CB-99-94, adopting the Muskogee Area court rules. The body of CB-99-94 states that "the Choctaw Nation CFR Court of Indian 0ffenses needs to establish a complete and updated code of laws to, govern the Court System," and the Choctaw Nation CFR Court of Indian 0ffenses "wishes to adopt Muskogee Area Office Court of Indian 0ffenses Court Rules." No rules, ordinances, or resolutions concerning the court has been adopted by the tribe or approved by the tribe since May 1994,8 until November 8, 1997, when procedures for jury selection were passed by the tribal council, pursuant to Rule 30(b) of the codes.

28. Petitioners are being charged with laws that were not valid laws on September 4, 1995. Petitioner Dry was charged with violating a law that was not valid on September 2, 1996.

29. Petitioners re-allege and incorporation herein paragraphs1 through 9

30. On August 31, 1992, the Choctaw Nation submitted a contract for a CFR Court.
Exhibit 30

31. On September 14, 1992, BIA employees had a contract review of this contract. Handwritten notes show that the term "CFR Court" should be stricken and the term "tribal court' should be substituted. Exhibit 31.

32. On September 18, 1992, the BIA signed a contract with the Choctaw Nation. In Article II, Section 201, the Choctaw Nation agreed to establish and maintain a "system of courts with both civil and criminal misdemeanor jurisdiction." In Section 202, the major goal of the "Tribal Court" program is to have "jurisdiction over all offenses outside the jurisdiction of the Federal Government and the State of Oklahoma." Exhibit 32. This contract provision is in direct conflict with the BIA in its admission that the Choctaw Nation is exercising federal criminal jurisdiction- The contract itself specifically excludes federal criminal jurisdiction.

33. On October 22, 1992, the BIA sent a memo to the Choctaw Nation, informing that the contract should be revised to a contract for a tribal court. Exhibit 33.

34. On November 20, 1992, a contract for a tribal court was approved. Exhibit 34.

35. Since that time, the BIA has approved contract and funding for a "tribal court" while the Choctaw council has consistently passed resolutions for a "CFR Choctaw Court of Indian Offenses.See Exhibits 24, 26, 27 and 28. A CFR Court is not the same as a tribal court.9 Though a CFR Court may function as a tribal court,10 consistent with the tribal constitution, 25 CFR Part 11. 1 00(c), a tribal court may not function as a CFR Court.

36. Under basic contract law principles, unless there is a meeting of the minds, there is no contract: It is clear that the BIA and the tribe did not agree on the subject matter of the contract, the type of court being established and funded. There was no contract to establish a CFR Court exercising federal criminal jurisdiction. There can be no contract for a tribal court due to the Choctaw constitutional limitations imposed by the Choctaw people.

37. The position of the BIA and the contracts between the tribe and the BIA has created a legal nightmare for Choctaw citizens such as petitioners. Petitioners have done everything in their power to define and clarify the type of court and the jurisdiction of the court in many forums. It should be obvious that the court was established with little or no thought or oversight. This has harmed Petitioners in that it has fallen to them, by default, to attempt to bring justice and fairness to the Choctaw Nation court system.

38. The contradictory and conflicting nature of the court and the question of jurisdiction is seen in the positions taken by the Choctaw law enforcement officers in a civil lawsuit stemming from these arrests. In Da v, U.S.A- CIV-97-113B, the officers are represented by the U.S. Attorney's Office in their official capacity as federal officials. In their private capacity, they claim to be tribal officers and assert tribal sovereign immunity. Both positions stein from the same incident.

39. Another contradictory and conflicting position arising from the confusion is whether the U.S. Constitution applies to the Petitioners in CFR Court. In a September 5, 1995, Denison Herald article, tribal prosecutor Robert Rabon is quoted as saying "the U.S. Constitution is no more applicable to Tuskahoma than the Guam Constitution." However, the comments to 25 CFR Part 11.205, 58 Fed. Reg. 54408 (Oct. 21, 1993) states that the U.S. Constitution applies to a CFR Court. Magistrate Wolfe told petitioners at a September 29, 1995, hearing that "they have the rights of any citizen of the United States..." The prosecutor and the magistrate were of two different opinions on whether the U.S. Constitution applied to petitioners. This stems from the confusion of the type of court and the source of authority to prosecute Petitioners.

40. Petitioners reallege and incorporate herein paragraphs 1 through 9.

41. Tribal prosecutor (the judicial branch of Choctaw government) is the son and law partner of tribal attorney, Bob Rabon.

42. Both B. and R. Rabon represent the council (the legislature branch of Choctaw government),11 act as parliamentarian at the public monthly meetings and as counsel in the Choctaw Constitutional Court, a court of limited jurisdiction created by the tribal constitution to interpret the constitution.12 B. Rabon defended the former Chief Roberts (the executive branch) and the tribe in a federal civil suit against Roberts' victim, Kobi Russ. Russ was represented by petitioner Dry.

43. R. Rabon, and the Rabon law firm, has represented all branches of Choctaw government. R- Rabon, as the tribal prosecutor, violates the separation of powers of the Choctaw Constitution, Article V. Exhibit 35, and the U.S. Constitution. With R- Rabon as tribal prosecutor, there is fundamental and inherent unfairness in the prosecution of petitioners, and they must be released.

44. Petitioners realleges and incorporates paragraphs 1 through 7.

45. R. Rabon, as law partner of B. Rabon and tribal prosecutor, has limited petitioners ability to craft a defense. In response to a subpoena on petitioners' motion to disqualify prosecutor, B. Rabon states 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." Exhibit 36.

46. On August 11, 1997, Magistrate Wolfe informed Petitioners' defense attorney that the presence of B. Rabon would not be to relevant to the disqualification of the prosecutor. Exhibit 3 7. He further advised defense attorney "I do not intend to re-try Hollis Roberts or give a forum to anyone's political views concerning the Choctaw tribe." It is ironic that Roberts could use the "Doug Dry" defense in his criminal trial in federal court, but Petitioner Dry would not be allowed to use the "Hollis Roberts!' defense in an alleged federal court.

47. On August 15, 1997, at a hearing on this motion, Magistrate Wolfe asked the tribal prosecutor, R- Rabon, whether B. Rabon would be called as a material witness and he said no. Exhibit 3 8, Tr. p. 1-2. Magistrate Wolfe then asked defense if B. Rabon would be a material witness. Defense counsel responded that yes because he advised the police officers on the day of the arrest, according to Jack England, chief of police for Talihina. Exhibit 39. B. Rabon is the
tribal attorney that acted as the tribal prosecutor on September 4, 1995. Magistrate Wolfe denied defense's motion to disqualify tribal prosecutor.

48. Petitioners realleges and incorporates paragraphs 1 through 7 herein.

49. In addition to the inability to call B. Rabon as a material witness, as set forth in Count VI, defense has been unable to call non-Indians, BIA employees or federal officials as witnesses. In 25 CFR, Part 11. 104(a) provides that "No Court of Indian 0ffenses may exercise any jurisdiction over a Federal or state official that it could not exercise if it were a tribal court." This would include BIA officials who contracted the court, funded the court and were witnesses at meetings where the Choctaw court and law enforcement were discussed. However, the Choctaw CFR Court is a federal court exercising federal criminal jurisdiction by the BIA's own admissions through the U. S. Attorney's Office for the Eastern District of Oklahoma. This would mean that the CFR Court has the same power over federal officials as any federal court.

50. Defense has issued subpoenas for various BIA employees and an assistant U.S. Attorney. U.S. Attorney for the Eastern District of Oklahoma John Raley informed defense counsel that Assistant U.S. Attorney Sheldon Sperling would not testify because the CFR Court lacks jurisdiction to compel the attendance of Sperling. Exhibit 40. It should be noted that Assistant U.S. Attorney for the Eastern District of Oklahoma Linda Epperly represented the BIA when it made the admission that the Choctaw CFR Court was a federal court exercising federal criminal jurisdiction. The BIA witnesses or exculpatory evidence in their possession cannot be subpoenaed by the CFR Court, according to Sharon BlackwelL Office of the Solicitor.

51. With the inability to call witnesses with testimony pertinent to the defense, by the positions taken by federal agents handicaps the Petitioners in a defense against the pending charges.

52. Petitioners realleges and incorporates herein paragraphs 1 through 7.

53. In addition to the inability to call witnesses, petitioners are unable to secure documents or evidence in the possession of federal officials pertinent,to the defense. The defense issued a subpoena duces, tecum. to BIA officials and employees with statements of witnesses to the arrest collected during a tort claim investigation. These witnesses did not appear on the day of the hearing. Petitioners were provided statements through a Freedom of Information Act request, however, the names were redacted.

54. Magistrate Wolfe ordered the BIA to provide defense with statements in its possession. Exhibit 41. This order was ignored by the BIA.

55. Defense issued a subpoena duces tecum for Judy Allen, editor of the tribal newsletter, the Bishinik, to produce photographs she took of petitioner Dry's arrest in 1995. Defense received some photos but not all of the photos from the rolls were produced.13 Also, Allen took more than one roll of the arrest, however the second roll of photos have not been produced to the defense.

56. The petitioners have been unable to obtain exculpatory evidence held by the Choctaw Nation and the BIA in violation of the most basic requirements of discovery.

57. Petitioners reallege and incorporates herein paragraphs 1 through 9.

58. Magistrate James Wolfe is not a properly appointed judge for a Court of Indian 0ffenses.

59. Under 25 CFR Part 11.201 (a) the Assistant Secretary - Indian Affairs or his or her designee appoints the magistrates. This appointment is confirmed by a majority vote of the tribal council.

60. James Wolfe was appointed by the chief of the Choctaw Nation, Greg Pyle and confirmed by the council on September 13, 1997.14

61. Even if this appointment was allowed under the regulations, Greg Pyle holding the office of chief illegally. Under the Five Civilized Tribes Act, 34 Stat. 822 (March 2, 1906), Congress appointed the chief of the Choctaw Nation. This was the situation from 1906 until 1970 when Congress passed the Act of October 22, 1970, 84 Stat. 1091. This Act provided that the principal chiefs of the Civilized Tribes, including the Choctaw Nation, would be elected by the members. The 1983 Choctaw Constitution provides, in Article VI, Section 6, that the "Chief shall be elected." Article VI, Section 7, states that the elected chief appoints an assistant chief who is not elected. Pyle was appointed assistant chief by elected chief Hollis Roberts. Upon Roberts' conviction in federal court of sexual assault and sexual abuse, he resigned as chief and Pyle became chief An appointed chief even a chief appointed by an elected chief violates the Act of 1970. Therefore, Pyle is not a legitimate chief and does have authority to make legitimate appointments to the court or otherwise.

62. The Choctaw council that confirmed Wolfe as magistrate was illegally constituted under the Choctaw Constitution. In Article X, Section 4, a public vote must be held on all matters. On September 13, 1997, the council elected officers of the council by secret ballot. The parliamentarian, tribal attorney and tribal prosecutor Robert Rabon told the council that secret ballot would violate the Choctaw Constitution. Exhibit 42.15 The response was that it had been done before and the council ignored the constitutional interpretation of its legal advisor. Randal Durant was elected speaker and proceeded to conduct the meeting as speaker. This election was unconstitutional and any business conducted was not lawful. James Wolfe was confirmed by the council on that day after the unlawful election of council officers.

63. Wolfe has not been approved by the BIA as CFR magistrate, as he informed defense at a hearing off the record.

64. Petitioners reallege and incorporates herein paragraphs 1 through 9.

65. Under 25 CFR Part 11.204, "the superintendent shall appoint a prosecutor for each Court of Indian 0ffenses within his or her jurisdiction," except as provided in a contract with a tribe. The contract between the Choctaw Nation and the BIA provides, in Article II Section 201, "qualified and licensed personnel for the court. The usual practice of hiring a tribal prosecutor for a CFR Court is to open the position for bids, applying Indian preference. However, to fill the position of tribal prosecutor for the Choctaw CFR Court, there was no advertising the position or bidding. The Choctaw Nation simply hired Robert Rabon, son and law partner of the tribal attorney Bob Rabon, as tribal prosecutor without adhering to the usual hiring practice of the BIA

66. By circumventing the procedures and practices of the BIA, the tribal prosecutor is not legitimately in a position to prosecute petitioners or anyone within the Choctaw Nation. Petitioners should be set free.

COUNT XI

67. Petitioners reallege and incorporates herein paragraphs I through 9.

68. With both the tribal prosecutor and tribal attorney being the same law firm,,the opportunity for manipulating the criminal prosecution for advantage in other forums is ripe. The appearance of unfairness has happened in the past in relation to Petitioners and Petitioner Burlison's husband in separate actions.

69. The decision on the Petitioners' Motion to Dismiss, filed on September 28, 1995, was not announced to Petitioners until January 24, 1997. Magistrate Wolfe announced that he had dictated and signed an order on September 26, 1996. Exhibit 43 Transcript p. 2. However, Petitioners never received a copy nor was the order filed until January 24, 1997.

70. On September 2, 1996, Petitioner's husband, Bob Burlison, was arrested by Choctaw law enforcement for violation of council Bill 113. On September 18, 1996, Burlison, represented by petitioner Douglas Dry, filed an injunction and declaratory action in Oklahoma County District Court.16 In a September 30, 1996, response to this filing, Bob Rabon, representing the Choctaw Nation, stated that "[t]he C.F.R. Court has already decided the issue contrary to plaintiff's position..." Exhibit 44 p. 5. At that point, petitioners had not received this decision but Rabon knew that it had been issued. Rabon further stated that a declaratory action was pending in the Choctaw Constitutional Court.17

71. After petitioner Dry received this response, his defense attorney telephoned Magistrate Wolfe informing him that the defense had not received this decision and asked for it, and wrote a letter to Magistrate Wolfe when the Motion for set for hearing, requesting a copy of this decision and informing him that she had not received a copy of it. Exhibit 45.

72. On September 26, 1996, the Choctaw council filed a petition for declaratory and injunctive relief against petitioners and Bob Burlison. Bob Rabon represented the council in this action. In paragraph 4 of the petition, Rabon asserted that "[s]uch claim [that the CFR Court does not have criminal jurisdiction] is absurd and the CFR Court of Indian 0ffenses for the Choctaw Nation has rejected this position." Exhibit 46. However, petitioners had not received a decision on their motion to dismiss and did not receive such a decision until January 24, 1997. The judges on the Choctaw Constitutional Court are James Wolfe, Juanita Jefferson and Mitch Mullens.

73. At the October 12, 1996, hearing on the petition, the counsel representing petitioners pointed out that the CFR Court had "ample opportunity" to decide the issue of the jurisdiction of the CFR Court, but no decision had been made. Judge Wolfe, who is also Magistrate Wolfe, did not correct counsel, and nor did he inform the Constitutional Court that a decision had been made. Exhibit 47 Transcript p. 12. On December 3, 1996, the three-judge Constitutional Court issued an Order granting the Council's petition. Durant v. Dry, 24 ULR 6073 (May 1997), attached hereto for convenience.

74. The criminal misdemeanor charge against Petitioner Burlison's husband, Bob Burlison, was dismissed on February 13, 1997. Exhibit 48. The stated reason for such dismissal was that the BIA, had not approved council Bill 113, pursuant to 25 CFR Part 11.123(e).

75. In the injunction suit, originally filed in Oklahoma County,18 Burlison had served interrogatories and production of documents on the BIA and the Choctaw Nation on January 27, 1997. On February 24, 1997, after Robert Rabon dismissed the charges against Burlison on February 13, 1997, Bob Rabon filed a motion to dismiss the injunction as moot due to the dismissal of the criminal charges, and did not respond to Burlison's discovery requests.

76. Petitioners reallege and incorporates herein paragraphs 1 through 9.

77. The chief of the Choctaw Nation may manipulate the court rules and procedures to his advantage.

78. In February 1994, Kobi Russ, represented by Petitioner Dry, sued Hollis Roberts and the Choctaw Nation in federal court, CIV-94101-S, for sexual harassment. This case was
dismissed on April 29, 1994, so that Ms. Russ may exhaust tribal remedies. Five days later, on May 5, 1994, the Choctaw council changed the statute of limitations in civil matters to six (6) months to deny Ms. Russ a forum in Choctaw court. The minutes of that council meeting reflect that this was done at the request of the chief and to deny Ms. Russ an avenue of redress.

79. The Choctaw chief with the assistance of the tribal council may manipulate the Choctaw CFR Court by changing the rules and procedures. There is no fundamental independence of the court from the executive and legislative branches of government. This action is contrary to a federal court exercising federal criminal jurisdiction.

80. Petitioners reallege and incorporates herein paragraphs 1 through 9.

81. There is no effective separation of powers within the Choctaw Nation between the three branches of government, even though the Choctaw Constitution provides for such separation in Article V. There is no effective independence of the law enforcement from the chief s office.

82. Under Article VII, Section 2, the chief of the Choctaw Nation may appoint "committees, members and delegates to represent the Choctaw Nation..." Under Section 8 of the same article, the chief "shall have the power to remove any official appointed by him except for members of the Tribal Court19 and the Tribal council."

83. The Tribal Court held in Ruth Morris v. Hollis Roberts C-82-4, attached hereto for convenience, that The Chief of the Choctaw Nation could terminate an employee under the "Provisional Constitution of the Choctaw Nation." This Constitution was in effect from 1979 to 1983 and similar, if not identical in many articles, to the 1983 Constitution. Further, in Robert Gardner V. Hollis Roberts attached hereto for convenience, the Chief can summarily remove the Assistant Chief from office and the decision to remove him is totally discretionary with the Chief. The Choctaw Constitution and these decisions authorizes the Chief to remove any employee or official, except the Tribal Court and the Tribal council, that he may appoint.

84. In the criminal prosecution of former Choctaw Chief Hollis Roberts in U.S. District Court for the Eastern District of Oklahoma, the U.S. federal prosecutor, in his closing statement, stated that the chief of the Choctaw Nation could fire the chief of the Choctaw law enforcement at will. This power ties the hands of the law enforcement and it serves at the discretion of the chief The sexual assaults on tribal employees by the chief were never investigated by the Choctaw law enforcement due to this structure of the Choctaw government.

85. This discretion to fire at will influenced the decisions of the Choctaw law enforcement. This inference may be drawn from the number of arrests by Choctaw law enforcement from 1991 to September 3, 1995, the day before the Petitioners were arrested. Zero. Robert Rabon admitted to the Denison Herald reporter that the arrests of Petitioners were the first arrests in two years by Choctaw law enforcement. Court records of the Choctaw CFR Court reveals that Petitioners were the only three people prosecuted in 1995.20 Petitioner Dry was one of two citizens prosecuted from January 1997 to Labor Day 1997.

86. Roberts was chief of the Choctaw Nation at the time Petitioners were arrested and prosecuted by the Choctaw CFR court.

87. Likewise, the chief appointed Magistrate Wolfe to the Choctaw CFR Court, contrary to 25 CFR Part 11. Under the Choctaw Constitution and decisions from the Choctaw Constitutional Court, the chief would have the authority to fire Magistrate Wolfe at will.21 This power and discretion of the chief negates any fundamental independence of the court from the other branches of government. Magistrate Wolfe could not make an independent judgment without the interference of the executive branch.

88. The same situation applies to the judges appointed to the Choctaw Court of Indian Appeals.22 The chief appoints these three judges and he has the authority to fire the judges at will. This undercuts any fundamental independence of the appeals court. Further, the judges on the Appeals court has not been confirmed by the BIA and cannot hear cases.

89. Petitioners reallege and incorporates herein paragraphs 1 through 7

90. On January 24, 1997, Petitioner Dry filed both an oral request in open court and a motion for speedy trial. Exhibit 52.

91. On January 24, 1997, Magistrate Wolfe set a jury trial for April 1997, then reversed himself when Petitioner Dry asked for the names and addresses of the jury pool- Transcript p. 15-16. To date, there is no trial date set, even though the charges have been pending since September 4, 1995.

92. Petitioners reallege and incorporates herein paragraphs 1 through 7

93. On January 24, 1997, Petitioner Dry filed a motion for a jury trial. Exhibit 53. In a federal court, as the BIA admits the Choctaw CFR Court is, Petitioner Dry would have access to the names and addresses of the jury pool. For the Choctaw Nation, this would be the names and addresses of the registered voters of the Choctaw Nation. On January 24, 1997, Magistrate Wolfe ruled that Petitioner Dry would not receive the names and addresses of the jury pool. Exhibit 43, Tr. p. 15-16.

94. On August 24, 1997, Magistrate Wolfe ruled that the jury pool would be the registered voters of the Choctaw Nation living within the 12 districts of the tribe located within the 10 1/2 counties of the boundaries of the Nation- Exhibit 54. The jurors would be drawn in open court with Petitioner Dry present and observing.

95. At this hearing, Robert Rabon, however, pointed out that under the court rules, the Choctaw council were charged with adopting the procedures of selecting a jury. This had not been done, even though these rules have been in effect since May 5, 1994

96. On November 8, 1997, the Choctaw council adopted such procedures to limit the jury selection to 60 names of registered voters drawn from only registered voters of three districts. Petitioner Dry would not received the names and addresses of this jury pool under Magistrate Wolfe's prior ruling. In addition, the December 1997 issue of the Bishinik the tribal newsletter, states that the 60 jurors would be drawn by the secretary of the election board at Durant and then the names would be sent to Tuskahoma. This procedure is contrary with Magistrate Wolfe's order that would allow Petitioner Dry to observe the process.

97. Petitioner Dry reallege and incorporates herein paragraphs 1 through 9.

98. On January 24, 1997, Robert Rabon filed a charge against Petitioner Dry for assaulting a police officer under Choctaw Criminal Codes. Tins charge stems from an incident at the 1996 Labor Day Festival at Tuskahoma, on September 2, 1996. The charge was no filed until over four (4) months after the incident and -after Petitioner Dry has pressed his state and federal tort claims demands.

99. Petitioner Dry was not arraigned on this charge until September 24, 1997, over a year later. This violates his due process right.

100. Petitioner Dry reallege and incorporates here paragraphs 1 through 9.

101. On June 26, 1995, the Choctaw Nation entered into a Self-Governance Compact with the United States for many programs, including law enforcement and the CFR Court. This compact took effect October 1, 1995. Exhibit 55.

102. Tribal Self-Governance, 25 U.S.C. § 458aa, et seq. provides a disclaimer in Section
458cc (k), "Nothing in this section is intended or shall be construed to expand or alter existing statutory authorities 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.) Exercising federal criminal jurisdiction is an inherent federal function and cannot be contracted to a tribal court. The Indian Law Enforcement Reform Act nor any other statute or provision of the U. S. Constitution allows contracting of federal criminal jurisdiction to an Indian tribe. With criminal jurisdiction specifically disallowed by the tribal voters, the Choctaw Nation cannot contract for a court or law enforcement program. With no criminal jurisdiction, either tribal or federal, the Choctaw CFR Court cannot prosecute any Choctaw citizen. Petitioner Dry is being prosecuted in a court that does not have jurisdiction and must be released.

103. Petitioner Dry was charged with assaulting a police officer. The officer, Ben Veenstra, was a Durant police officer, in a Durant Police Department uniform with a Durant Police Department badge, at the time of the alleged assault, in Tuskahoma, Oklahoma, outside of his jurisdiction and over I 10 miles from Durant, Oklahoma.

104. On March 5, 1997, Petitioner Dry filed a motion to dismiss alleging the Veenstra was a federal officer and the CFR court did not have jurisdiction over the assault of a federal officer.

105. On March 7, 1997, Petitioner Dry filed a supplemental motion to dismiss, arguing in the alternative, that if Veenstra was not a federal officer, he was a tribal officer. Since prior decisions had established that the Choctaw Nation was without criminal jurisdiction due to constitutional limitations and was exercising federal criminal jurisdiction, the tribe could not
confer authority as a police officer upon Veenstra.

106. In an affidavit filed in a civil suit against the City of Durant and Veenstra, CIV-97344-B, pending in the U.S. District Court for the Eastern District of Oklahoma, Veenstra asserted that he was employed as "a security" for the Choctaw Nation as a cross-deputized officer with the BIA- Exhibit 56.

107. In his official capacity, Veenstra, is asserting that he is a federal officer and has asked the U.S. Attorney's Office to represent him in Petitioner Dry's civil suit. Exhibit 57.

108. In his individual capacity, Veenstra, is asserting that he is a tribal official and enjoys sovereign immunity. Exhibit 58. Veenstra is represented by Bob Rabon in his individual capacity.

109. On September 24, 1997, Magistrate Wolfe overruled Petitioner Dry's motion to dismiss, so the criminal charge of assaulting a police officer is still pending in CFR Court. Magistrate Wolfe made this ruling in spite of Veenstra's own admission that he was acting as security on September 2, 1996.23

110. Whether Veenstra was acting as a Durant police officer, security, federal officer or tribal officer on September 2, 1996, is indicative of the legal nightmare encountered by Petitioners in their struggle to defend against criminal charges in the Choctaw CFR Court.

WHEREFORE, petitioners request an order of this Court setting this matter for an evidentiary hearing in order to fully present evidence in support of this Petition and at the conclusion of that hearing the court issue a writ of habeas corpus, vacating the charges pending against petitioners in Choctaw CFR Court, and releasing petitioners from the unlawful threat of re-incarceration in violation of the federal constitution and statutory principles of fairness and due process.

1. No formal charges were filed against Hicks. (back)

2. The video has a few seconds of visual before Kim Reed, director of Choctaw law enforcement, turned off the shutter. The sound continues of McConnell's police transport to Clayton jail and her book-in. Reed was instructing the officers to pick up anyone with literature, and the officers were concerned with those with literature, as heard from the radio in the background. (back)

3. After Ross v. Neff, 905 F.2d. 1349 (10th Cir. 1990), the BIA established Provisional CFR Courts until CFR Courts could be established. The CFR Court for the Chickasaw Agency, Ada, Oklahoma, was established with jurisdiction over the Chickasaw and Choctaw Nations. Prior to the establishing of the Choctaw CFR Court, the CFR Court for the Chickasaw Agency was the court of competent jurisdiction for matters involving the Choctaws. (back)

4. The transcript, Exhibit 13, is of the tape recording made of the incident, Exhibit 14, with the video of the arrest on Exhibit 1. (back)

5. Judge Bryant, in Harjo, 420 F.Supp. at 1146, established a five-member commission with a chairperson selected by the other four members and not necessarily have to be a member of the tribe. The court in 640 F.2d at 415-16, adopted these Harjo procedures. Ragsdale was chosen as chairperson to this commission for the Choctaw constitutional referendum process. (back)

6. This change in the statute of limitations became an issue in the federal criminal prosecution of Hollis Roberts, Case No. CR-95-3 5-S, U.S. District Court fir the Eastern District of Oklahoma. (back)

7. Petitioners do not attach this resolution as an exhibit because tribal citizens may not copy resolutions. Resolutions and council minutes are considered tribal property. (back)

8. The Choctaw council passed CB-96-113 in July 1996 to prohibit the passing out of literature at the Labor Day Festival unless a person or group has a permit- Two citizens were arrested on September 2, 1996, for violating CB- 113, but the charges were dismissed because the BIA has not approved this ordinance. (back)

9 The creation of the Courts of Indian Offenses is a valid exercise of the power of the Secretary of Interior as delegated to him by the Congress which holds plenary power over Indian tribes." Tillett v, Lujan, 730 F.Supp.381, 383 (W.D. Okla. 1990). (back)

10CFR courts, however, also function as tribal courts, they constitute the judicial forum through which the tribe can exercise its jurisdiction until such time as the tribe adopts a formal law and order code." Tillett v, Wan, 931 F.2d 636, 640 (10th Cir. 1991).(back)

11 In Choctaws for Democracy v. Choctaw Nation Tribal council, C-96-01, Choctaw Constitutional Court, Robert Rabon represented the council. In Dry v. Durant C-96-02, Choctaw Constitutional Court, Bob Rabon represented the council. (back)

12. The court does not have power to enforce its decisions, nor does it have power to subpoena or the authority to find anyone in contempt. (back)

13 The photos were numbered, and certain numbers were missing from the roll. (back)

14 Choctaw citizens are unable to copy council bills, resolutions, ordinances or official minutes. We may received them when approved by the BIA through FOIA- It however, council bills are not submitted for approval, we are unable to obtain a copy. Therefore, this council bill or the minutes are not attached as an exhibit. (back)

15 Since tribal citizens may not copy minutes of tribal council minutes, nor record the meeting, the editors of the Choctaw Vindicator takes notes during the meeting for printing. This is all that is available to tribal citizens. (back)

16 The injunction was filed to prevent state law enforcement agencies from enforcing on state land warrants issued by the Choctaw CFR Court under the cross-deputization agreements signed between state agencies, the BIA and the Choctaw Nation. (back)

17 The Choctaw Constitution sets up a court of limited jurisdiction. It may only interpret the constitution and acts of the council. (back)

18 The suit was originally filed in Oklahoma County, naming Gov. Frank Keating as a defendant, then transferred to Atoka County. Before the case was filed in Atoka County, the BIA removed to federal court for the Eastern District but it was remanded. After the case was filed in Atoka County, the BIA again removed to federal court for the Eastern District. The court granted Burlison's motion to remand back to Atoka County. A hearing was held in April 1997 on the motion to dismiss, then taken under advisement and granted on August 8, 1997. This was appealed by Burlison and the case currently is before the Oklahoma Supreme Court. (back)

19 The "Tribal Court being the court established under the Constitution, and referred to by Petitioners as the "Constitutional Court." This is not the CFR Court in which Petitioners are being criminally charged. (back)

20 In 1995, five criminal cases were filed in the Choctaw CFR Court. Plaintiff& were four of these five cases, and Randal Hicks was the fifth. Hicks was arrested for possessing the literature distributed by Plaintiffs, arraigned but formal charges were not filed. During the year of 1995, the Choctaw Nation law enforcement received reports of, or investigated 205 offenses, broken down by quarter as follows:

January, February and March 1995 reported 41 offenses

April, May and June 1995 reported 51 offenses

July, August and September 1995 reported 53 offenses

October , November and December 1995 reported 60 offenses.

In September 1995, 21 offenses were reported or investigated, including 5 disturbing the peace. Yet no criminal cases were filed against anyone else except Petitioners for the entire year, much less anyone else for disturbing the peace in September 1995. It would appear from the statistics that Petitioners were the only citizens charged during the entire year for disturbing the peace, when there were other reports of disturbing the peace investigated by the Choctaw Nation law enforcement.

Petitioners were charged with nineteen crimes stemming from the incidences of September 4, 1995. With Randal Hicks' charges being dismissed, the Petitioners were the only Choctaw citizens charged that year. Activity in the Choctaw CFR Court from the time of its establishment breaks down as follows:

1994, one Choctaw citizens was charged with two crimes. Jerome Paul Bonaparte, CRM-94-01.

1996, seven Choctaw citizens were charged with seven crimes. Elton B. Williams, CRM-96-0 1; Jimmy Ray Robinson, CRM-96-02; Heath Allen Watson, CRM-96-03; Bobbie Burlison, Jr., CRM-96-04; Tryge Jorgensen, CRM-96-05; Lance Baker, CRM-96 06; Jason Glenn Stratton, CRM-96-07. Two of these were Petitioner Burlison's husband, Bob Burlison, and Petitioner Burlison's nephew, Tryge Jorgensen for violating CB- 113. The other five Choctaw citizens were arrested for public intoxication.

1997, two Choctaw citizens were charged with two crimes on January 24, 1997, to Labor Day. Assault and battery upon a police officer, Petitioner Douglas Dry, CRM 97-02. A Choctaw citizen was charged with unlawfully pointing a firearm, CRM-97 01. At the 1997 labor Day Festival, four citizens were arrested for five crimes, three public intoxication, one possession of marijuana and one assault and battery.

Petitioners Burlison, McConnell and Dry are members of Choctaws for Democracy (CFR), as are Petitioner Burlison's husband, Bob Burlison, and her nephew, Tryge Jorgensen. These five CFR members have been charged with 22 crimes by Rabon in the Choctaw CFR Court, facing over 15 years in jail collectively plus fines. Seven non-CFR members have been charged with eight crimes, mostly public intoxication, with punishment of a fine, and less than a year in jail.

In 1995, Petitioner Dry was one of three (or one-third) of all Choctaw citizens charged, and he was charged with over one-third of all the crimes charged. Petitioner Juanita McConnell was one of three (one-third) of the Choctaw citizens charged, and she was charged with slightly less than one-third of all the crimes charged in 1995. Petitioner Rosie Burlison was one of three (one-third) of the Choctaw citizens charged, and she was charged with over one-third of all the crimes charged in 1995.

In 1997, Plaintiff Dry was one of two (or one-half) of all Choctaw citizens charged, and he was charged with one-half of all crimes charged. (back)

21 Article VII, Section 8, exempts "members of the Tribal Court" from the chief 's power to remove. However, this is the Choctaw CFR Court, not the Constitutional Tribal Court. Magistrate Wolfe is not exempt from being summarily removed by the chief when he sits as magistrate in the Choctaw CFR Court since the BIA has apparently delegated hiring and firing authority to the tribe. (back)

22 On April 3, 1995, Chief Roberts sent letters to Honorable Farrell Hatch, Bryan County District Court judge, informing him that he will be the chief judge for the Appeals Division of the Choctaw Nation Court of Indian 0ffenses. Exhibit 49. On April 3, 1995, Chief Roberts sent letters to Mitch Leonard and Doug Sanders, Jr., thanking them for agreeing to serve as a member of the Appeals Division of the Choctaw Nation Court of Indian 0ffenses. Exhibits 50 and 5 1. These letters were received at the Talihina Agency on April 4, 1995. (back)

23 Veenstra testified at the September 24, 1997, hearing. Exhibit 59. (back)

STATE OF OKLAHOMA

COUNTY OF LATIMER

I, DOUGLAS G. DRY, the plaintiff named above, under the penalties of pedury state that I have carefully read the foregoing instrument in its entirety, and to the best of my knowledge and understanding the allegations made therein are true.

Subscribed and Sworn to before me, a Notary Public, this 3rd day of December, 1997.

STATE OF OKLAHOMA

COUNTY OF LATIMER

I, ROSIE LEE BURLISON, the petitioner named above, under the penalties of perjury state that I have carefully read the foregoing instrument in its entirety, and to the best of my knowledge and understanding the allegations made therein are true.

Subscribed and Sworn to before me, a Notary Public, this 3rd day of December, 1997.

STATE OF OKLAHOMA

COUNTY OF PUSHMATAHA

I, JUANITA McCONNELL, the petitioner named above, under the penalties of perjury state that I have carefully read the foregoing instrument in its entirety, and to the best of my knowledge and understanding the allegations made therein are true.