No. CIV-97-113-B

DOUGLAS G. DRY, JUANITA
McCONNELL and ROSIE BURLISON,

Plaintiffs,
vs.

UNITED STATES OF AMERICA, et. al.

Defendants.

Douglas G. Dry, pro se, OBA # 012653
Attorney for Plaintiffs
103 1/2 West Main
Post Office Box 637
Wilburton, OK 74578
(918) 465-5033

Cases Page

1. Morris v. Watt, 640 F. 2d 404 (1981) ............................................................ 1

2. Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990) ............................................... 1

3. Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir. 1991) ................................... 1,2

4. Burlison v. City of Atoka, CIV-96-616-S (1996), U.S.
District Court for the Eastern District of Oklahoma ...................................... 4

5. Burlison v. Keating, CJ-96-6410-61 (1996), Oklahoma County
District Court .................................................................................................. 4

6. Durant v. Dry, C-96-02 (1996), Choctaw Tribal Court ............................. 4, 6

7. U.S. v. Red Lake Band of Chippewa Indians, 827 F.2d 380
(8th Cir. 1987) cert. denied 108 S.Ct. 1109 (1988)....................................... 5

8. Choctaws for Democracy v. Choctaw Nation Tribal Council,
C-96-01, Choctaw Tribal Court .................................................................... 5

9. Okla. Tax Commission v. Chickasaw Nation, 132 L.Ed.2d
404 (1995) ..................................................................................................... 7

10. U.S. V. Dion, 476 U.S. 734 (1986) ............................................................ 7

11. U.S. v. Funmaker, 10 F.3d 1327, 1331 (7th Cir. 1993) .............................. 8

12. U.S. v. North, 910 F.2d 843, 926 (D.C. Cir. 1990) ................................... 8

13. U.S. v. Roberts, CR-95-35, U.S. District Court for the
Eastern District of Oklahoma ....................................................................... 8

14. Nixon v. Fitzgerald, 457 U.S. 731 (1982) .................................................. 8

15. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978).......................... 8,9

16. Puyallup Tribe, Inc. v. Washington Dept. of Game,
433 U.S. 165, 171-72 (1977) ...................................................................... 9

17. Ex Parte Young, 209 U.S. 123 (1908) ...................................................... 9

18. Hafer v. Melo, 116 L.Ed.2d 301, 313 (1991) ........................................... 9

Statutes

1. Indian Civil Rights Act, 25 U.S.C. § 1300 ............................................. 6, 7

2. Indian Law Enforcement Reform Act, 25 U.S.C. §2806 (d)...................... 9

Treaties

1. Treaty of Dancing Rabbit Creek of 1830, 7 Stat. 333 ........................... 6, 7

2. Treaty of 1855 between the United States and the
Choctaw and Chickasaw Indians ........................................................... 6, 7

3. Treaty of 1866 with the Choctaws and Chickasaws ............................. 6, 7

Regulations

1. 25 CFR Part 11 ............................................................................ 1, 2, 5, 7

2. 25 CFR Part 11.103(a) ............................................................................. 9

Miscellaneous

1. 1860 Choctaw Constitution ..................................................................... 1

2. 1979 Choctaw Constitution ...................................................................... 1

3. 1983 Choctaw Constitution ..................................................................... 1

4. Choctaw Council Bill CB-111-92 (August 19, 1992) .............................. 2

5. 58 Federal Register 54407-8 (Nov. 22, 1993) ..................................... 5, 7

6. Council Bill 138-91 (August 14, 1991) .................................................. 5

7. 1983 Choctaw Constitution Article X, § 4 ............................................. 10

On September 4, 1995, defendant Bob Rabon was present at the Choctaw Labor Day Festival in his capacity as tribal attorney. He sat on the podium with Chief Hollis Roberts, and other tribal officials. Defendant Robert L. Rabon, prosecutor for the CFR Choctaw Court of Indian Offenses, was not present.

Plaintiffs Dry, Burlison and McConnell were arrested by Choctaw law enforcement officers. Originally, the Plaintiffs were told they were being arrested for violating a tribal ordinance forbidding passing out political literature on tribal or trust land. Defendant Bob Rabon told numerous television media and defendant Robert Rabon told numerous print media that the Plaintiffs were being arrested for violations of this alleged ordinance. Defendant Rabon, or his son and law partner Robert Rabon, has attended all of the Choctaw Council meeting for years, and should have known that such ordinance did not exist.

On the morning of September 4, 1995, after the arrests of Plaintiffs, Choctaw law enforcement officers conferred with defendant Bob Rabon as to what charges would be brought against the Plaintiffs, while the Plaintiffs were held in Clayton and Talihina city jails prior to arraignment in the CFR Choctaw Court of Indian Offenses. The Plaintiffs were allegedly charged with disturbing the peace and Plaintiffs Dry and Burlison were allegedly charged with resisting arrest on the afternoon of September 4, 1995. Plaintiff Dry requested a copy of all Choctaw laws, specifically requesting the ordinance forbidding passing out political literature on tribal or federal land. No such ordinance existed.

On September 14, 1995, defendant Robert Rabon filed information alleging a total of twenty-two crimes against the Plaintiffs, none of which was the violation of a tribal ordinance forbidding passing out literature on tribal or trust land.

The Choctaw Nation does not have criminal jurisdiction under the Choctaw Constitution. Defendant Rabon was not acting in his tribal capacity when he conferred and conspired with Choctaw law enforcement officers in regard to what criminal charges would be alleged against the Plaintiffs to justify their illegal arrests. It is legally impossible due to the limitation of the Choctaw Constitution for defendant Bob Rabon to have conferred with the officers on criminal matters on September 4, 1995, in any capacity other than a federal prosecutor.

The Choctaw Constitution was amended in 1983 pursuant to a court order issued in Morris v. Watt, 640 F. 2d 404 (1981). The court ordered that Choctaw citizens be informed that the 1860 Choctaw Constitution was still in force, and that they be educated on the fundamental differences between the 1860 and 1979 constitutions in order to vote on these differences. During the Choctaw constitutional election process, one specific question asked of the Choctaw citizens was: "Shall the tribal court's jurisdiction be extended to include general civil, criminal and probate matters?" The citizens voted no. See Exhibit A attached.1 The 1983 Choctaw Constitution was adopted with this limitation in effect. Defendant Bob Rabon's law firm represented the tribe when the 1983 Constitution was adopted.
After Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990), was decided, extending the definition of Indian Country to include Eastern Oklahoma restricted Indian lands, the defendant Bureau of Indian Affairs (BIA) approached the tribes in eastern Oklahoma to establish provisional Court of Indian Offenses, also known as CFR Courts as they derive from the Code of Federal Regulations which established these courts. There are two types of Indian courts: tribal courts and CFR courts. Tribal courts are established pursuant to the constitution of the tribe, and regulated by the tribal council, subject to approval of the Secretary of Interior. CFR courts are established pursuant to 25 CFR Part 11. "[T]he creation of the Courts of Indian Offenses is a valid exercise of power of the Secretary of Interior as delegated to him by the Congress which holds plenary power over Indian tribes" Tillett v. Lujan, 931 F.2d 636, 639 (10th Cir. 1991).
On December 8, 1990, Jack Pate, then Talihina Superintendent for the defendant BIA, attended the Choctaw Council meeting to discuss law enforcement and court programs. Defendant Bob Rabon was present. During the discussion, Defendant Bob Rabon told the council that:
"At this time you could have a constitutional amendment voted on by the people to expand the jurisdiction of your court because your court is very limited jurisdiction. Basically, it decides disputes arising out of the provisions of the constitution and enactments you pass here."2
The Choctaw people have not granted the Choctaw Nation authority to exercise criminal jurisdiction over us. Defendant Bob Rabon was aware of this limitation in 1983 when the constitution was amended, and in 1990 when law enforcement and court programs were discussed by the council. Defendant Bob Rabon could not have advised the Choctaw Nation law enforcement on tribal criminal matters on September 4, 1995, because it simply does not exist.

The Choctaw Nation and defendant BIA were confused over the true nature of the court that charged Plaintiffs on September 4, 1995. A short history on establishing the Choctaw court will be helpful in understanding the larger issues presented by defendant Bob Rabon in his motion to dismiss.
On August 19, 1992, the Choctaw Council passed Council Bill CB-111-92, to contract for a CFR Court established by 25 CFR Part 11, attached as Exhibit B. On August 31, 1992, the Choctaw Nation submitted a proposal to contract for a Court of Indian Offenses. On September 14, 1992, defendants Larry Mings, Karen Ketcher and other employees of defendant BIA participated in a meeting to review the Choctaw proposal. Notes from the meeting state that the program goal should be changed to "provide a tribal court for the Choctaw Nation which would have jurisdiction over criminal misdemeanor and civil disputes," attached as Exhibit C. Defendant Dennis Springwater wrote a memorandum to the superintendent of the Talihina Agency on October 22, 1992. Defendant Springwater stated "we need to omit language which references 'Court of Indian Offenses' and or 'CFR Court.' The term 'Tribal Court' will be substituted," attached as Exhibit D. Defendant BIA awarded a contract for a "TRIBAL COURT PROGRAM" on November 20, 1992, attached as Exhibit E.
Information was filed against Plaintiffs Dry, McConnell and Burlison in the CFR Choctaw Court of Indian Offenses on September 14, 1995. Plaintiffs' attorney, Scott Kayla Morrison, filed a motion to dismiss on September 28, 1995, asserting lack of tribal criminal jurisdiction. Defendant Robert Rabon filed a response on October 17, 1995, attached as Exhibit F. Defendant Robert Rabon asserts that the tribal court became vested with criminal jurisdiction after a contract with defendant BIA.
Confusion existed over the exact nature of the Choctaw court on September 4, 1995. Plaintiffs Dry, Burlison, and McConnell began a long, exhaustive process, at great time and expense for Plaintiffs, of bringing into focus the fuzzy area of criminal jurisdiction exercised by the Choctaw Nation. The criminal defense, and other lawsuits between Plaintiffs, defendant BIA, the Choctaw Nation and the Choctaw Council brought into sharper focus the fact that the CFR Choctaw Court of Indian Offenses is a federal administrative court exercising federal criminal jurisdiction.

With the absence of tribal criminal jurisdiction, the CFR Choctaw Court of Indian Offenses was established by a contract from defendant BIA, and exercises federal criminal jurisdiction. Burlison v. City of Atoka,3 CIV-96-616-S, U.S. District Court for the Eastern District of Oklahoma, Admissions of defendant BIA, attached as Exhibit G; Burlison v. Keating, CJ-96-6410-61 (September 18, 1996), Oklahoma County District Court, Defendants City of Caddo and Choctaw Nation's Motion to Dismiss and Memorandum Brief in Opposition to Motion for Temporary Injunction, p. 4, attached as Exhibit H; Durant v. Dry, Choctaw Tribal Court,4 C-96-02 (September 26, 1996), Petition for Declaratory and Injunctive Relief, attached as Exhibit I; Petitioners' Memorandum Brief in Support of Their Petition for Declaratory Judgment, p. 5, attached as Exhibit J; and Order, attached as Exhibit K.
On September 4, 1995, the Choctaw law enforcement conferred with defendant Bob Rabon concerning what charges would be brought against Plaintiffs Dry, Burlison and McConnell. See Statement of defendant Jack England, attached as Exhibit L. Defendant Bob Rabon could not have been advising the Choctaw Nation law enforcement officers in his capacity as tribal attorney on criminal matters because the tribe does not have criminal jurisdiction. The Choctaw Nation may only exercise federal criminal jurisdiction. Defendant Bob Rabon was advising the Choctaw law enforcement on September 4, 1995, in the stead of his son and law partner, defendant Robert Rabon, who was not present at the Choctaw Labor Day Festival. See Denison Herald article attached as Exhibit M. Defendant Bob Rabon was acting as a substitute prosecutor in a federal administrative court exercising federal jurisdiction, and not in a tribal capacity.

A Court of Indian Offenses is part of the federal government. 58 Federal Register 54407-8, comments to amended 25 CFR Part 11; U.S. v. Red Lake Band of Chippewa Indians, 827 F.2d 380 (8th Cir. 1987) cert. denied 108 S.Ct. 1109 (1988). The Choctaw Council passed Council Bill 138-91 on August 14, 1991. There is no question that the court exercising criminal jurisdiction in the Choctaw Nation is a federal instrumentality, exercising federal criminal jurisdiction when Plaintiffs Dry, Burlison and McConnell were arrested September 4, 1995. Defendant Bob Rabon was not acting as a tribal attorney when he advised the Choctaw law enforcement as to charges to be brought against Plaintiffs, rather he was acting as a substitute prosecutor exercising federal criminal jurisdiction.
It is a common practice for one member of the Rabon, Wolf & Rabon firm to substitute for each other. Defendant Robert Rabon has acted in the stead of tribal attorney, defendant Bob Rabon, on numerous occasion. Defendant Robert Rabon defended the Choctaw Council in a declaratory action filed by the organization Choctaws for Democracy in the Choctaw Constitutional Court in August 1996. Choctaws for Democracy v. Choctaw Nation Tribal Council, C-96-01 (August 10, 1996), Choctaw Tribal Court. The law firm of Rabon, Wolf & Rabon, which includes defendant Bob Rabon and defendant Robert Rabon, represented the Choctaw Council Speaker Randal Durant and the entire tribal council in Durant v. Dry, see Exhibit J. Defendant Robert Rabon attends Choctaw Council meetings, in his capacity as a substitute tribal attorney, the second Saturday of each month when defendant Bob Rabon is unavailable. This pattern creates an expectation in tribal officials and employees that conferring or seeking advice from one Rabon is the same as conferring or seeking advice from the other Rabon. The Rabons themselves conduct themselves as if they are interchangeable. This pattern of conduct strengthens the argument that defendant Bob Rabon was acting as a substitute prosecutor exercising federal criminal jurisdiction on September 4, 1995.

As confusion reigned over the nature of the court, confusion existed over whether the United States Constitution applies to the Choctaw Nation and the CFR Choctaw Court of Indian Offenses. A history of the application of the U.S. Constitution to the Choctaw Nation and the Choctaw court is helpful to understand that the Indian Civil Rights Act, 25 U.S.C. § 1300, et. seq., does not apply to the Choctaw Nation.
"The United States are obliged to protect the Choctaws from domestic strife and from foreign enemies on the same principles that the citizens of the United States are protected," Treaty of Dancing Rabbit Creek of 1830, 7 Stat. 333. The ambiguous assurance of protection under the U.S. Constitution the federal government made to Choctaw citizens in the Treaty of Dancing Rabbit Creek became clear in subsequent treaties. In Article VII of the Treaty of 1855 between the United States and the Choctaw and Chickasaw Indians, the parties agreed that "So far as may be compatible with the Constitution of the United States, and the laws made pursuant thereof,..." the Choctaws and Chickasaws shall be secured the unrestricted right of self-government. Article VIII, §4, of the Treaty of 1866 with the Choctaws and Chickasaws provides that "...No law [of the Choctaw Nation] shall be enacted inconsistent with the constitution of the United States or the laws of congress, or existing treaty stipulations with the United States; ..."
Our ancestors dedicated these treaties to protect the rights of Choctaw citizens as federal citizens, then living as well as future generations of Choctaw citizens. Choctaw treaties have been consistently re-affirmed. The latest U.S. Supreme Court affirmation is Okla. Tax Commission v. Chickasaw Nation, 132 L.Ed.2d 404 (1995), of which defendant Bob Rabon was attorney of record. Congress did not abrogate Treaties of 1830, 1855 and 1866 when it passed the Indian Civil Rights Act in 1968, nor in the amendments to that Act in the intervening years. For a later statute to abrogate an earlier treaty, there must be clear intent of Congress to abrogate the treaty. U.S. V. Dion, 476 U.S. 734 (1986). No where in the volummes of hearings or legislative history on the Indian Civil Rights Act, or its amendments, does anyone even mention the Choctaw treaties, much less express clear intent to abrogate.
The Indian Civil Rights Act applies to tribal governments when acting pursuant to their inherent powers, absent treaty provisions. The United States Constitution applies to agencies, entities and instrumentalities of the federal government, such as a Court of Indian Offenses. Comments to 25 CFR Part 11, 58 Federal Register 54408 (Nov. 22, 1993), specifically state that the U.S. Constitution applies in CFR courts, and not the Indian Civil Rights Act because these courts are federal instrumentalities.
CFR Choctaw Court of Indian Offenses Magistrate James Wolfe informed Plaintiffs that they had the same rights as any citizen of the United States at the September 29, 1995, arraignment on alleged criminal charges stemming from September 4, 1995. Wolfe's opinion differed from defendant Robert Rabon's in his comments to the press on September 5, 1995, see Exhibit M, when Robert Rabon stated the U.S. Constitution does not apply to Choctaw lands any more than the Guam Constitution applies.
Defendant Bob Rabon, with the numerous references to the Indian Civil Rights Act in his brief, still seems confused as to whether the U.S. Constitution applies to Choctaw lands and Choctaw courts. The treaties between the Choctaw Nation and the U.S. government guaranteed that Choctaw citizens would be afforded the protection of the U.S. Constitution from acts of the Choctaw government at all times. If, however, the treaties are ignored for the moment, the U.S. Constitution applies to the CFR Choctaw Court of Indian Offenses and any action taken by any Choctaw official in relation to that court.
The law firm of defendant Bob Rabon and his son and law partner, defendant Robert Rabon, has represented the Choctaw Nation for a number of years. The defendants Bob and Robert Rabon knew or should have known that the U.S. Constitution applied to Choctaw lands. Yet from statements and pleadings, it would appear that the defendants Bob and Robert Rabon chose to ignore the law in relation to the CFR Choctaw Court of Indian Offenses.

Tribal employees do not enjoy blanket immunity from each and every action taken in the course of their employment. U.S. v. Funmaker, 10 F.3d 1327, 1331 (7th Cir. 1993) (a Chippewa employee was instructed to burn down the tribal bingo hall by the tribal chairman and the court said "our criminal law does not recognize a 'following orders' or 'Nuremberg' defense" quoting U.S. v. North, 910 F.2d 843, 926 (D.C. Cir. 1990); U.S. v. Roberts, CR-95-35, U.S. District Court for the Eastern District of Oklahoma, (Choctaw Chief Hollis Roberts indicted for seven counts of sexual assault of tribal employees). In the federal system, only the President of the United States is absolutely immune from damages liability arising from official acts. Nixon v. Fitzgerald, 457 U.S. 731 (1982). Federal or tribal elected officials or employees are not immune for criminal or civil actions taken during their official tenure.
The U.S. Supreme Court held that tribal officials are not protected by the tribe's immunity from suit. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978), citing Puyallup Tribe, Inc. v. Washington Dept. of Game, 433 U.S. 165, 171-72 (1977). State officials who act in violation of the federal constitution are stripped of their official or representative character, and the state may not grant immunity from responsibility to the superior authority of the United States. Ex Parte Young, 209 U.S. 123 (1908), Hafer v. Melo, 116 L.Ed.2d 301, 313 (1991). Likewise, tribes may not grant immunity to officials to act in violation of the federal constitution. Santa Clara Pueblo v. Martinez, 436 U.S. at 56 ("Congress has plenary authority to limit, modify or eliminate the powers of local self-government, which the tribes otherwise possess").5
On September 4, 1995, defendant Bob Rabon was advising the Choctaw law enforcement officers on matters outside the scope of the Choctaw Constitution. In fact, defendant Bob Rabon originally advised the officers that a non-existent law had been violated, thereby authorizing illegal arrests. This action is not permitted under the Choctaw Constitution and the U.S. Constitution applicable in the CFR Court of Indian Offenses. Defendant Bob Rabon was not acting in a permissive tribal capacity on September 4, 1995.

Defendant Bob Rabon is a non-Indian. CFR courts do not have civil jurisdiction over non-Indians except by stipulation of the non-Indian. 25 CFR Part 11.103(a). It is ironic that a non-Indian can confer with Choctaw Nation law enforcement officers as to what criminal charges would be lodged against Choctaw citizens but Choctaw citizens may not seek redress against the non-Indian, particularly in a court that the non-Indian help set up, without the agreement of the non-Indian.
Defendant Bob Rabon advises the Choctaw Tribal Court, even when acting as an attorney for plaintiffs in an action pending before that court. Durant v. Dry, transcript of October 12, 1996, hearing, p. 9, attached as Exhibit N ("if I could make an observation just as amicus curi here"). Defendant Bob Rabon apparently advises or influences the CFR Choctaw Court of Indian Offenses as well. Plaintiffs, who are defendants in the criminal action, filed a motion to dismiss the criminal charges on September 28, 1995. Plaintiffs did not receive notice of the ruling on that motion until January 24, 1997. However, defendant Bob Rabon stated in numerous pleadings in other forums that, not only had a decision been reached on that motion, but that it had been decided against Plaintiffs. See page 5 of Exhibit H; page 2 of Exhibit I ("Such claim is absurd and the CFR Court of Indian Offenses for the Choctaw Nation has rejected this position). Defendant Bob Rabon made these statements four months before Plaintiffs or their attorney were notified of the decision. Lack of separation between the judicial branches and the tribal attorney defendant Bob Rabon can be inferred from these statements.
Choctaw Constitution Article X, § 4 provides "no person shall address the Council unless he or she has the unanimous approval of the Council members present." Using this provision, the Choctaw Council, upon advice of defendant Bob Rabon as advisor and parlimentarian to the Council, may ignore any person who wishes to address them to seek redress. The broad discretion of the Council, acting upon advice of defendant Bob Rabon, has effectively precluded redress by Choctaw citizens to a tribal forum.
Even if defendant Bob Rabon was acting in a tribal capacity on September 4, 1995, and the Indian Civil Rights Act applied to Choctaw land, it was never the intent of Congress, according to the U.S. Supreme Court, to deny a forum for Indian citizens to seek redress of grievances from tribal officials. "Tribal forums are available to vindicate rights created by the ICRA." Santa Clara Pueblo v. Martinez, 436 U.S. at 1680. The use of the word "forums" instead of "courts" indicates that the tribal council is available as a forum in the absence of a tribal court. Since the CFR Choctaw Court of Indian Offenses is unavailable to Plaintiffs to seek redress against defendant Bob Rabon, the Choctaw Council supposedly is available as a forum. However, a fair and adequate hearing with the Choctaw Council is not available to Plaintiffs.
Respectfully submitted,

_________________________
Douglas G. Dry, pro se
Attorney for Plaintiffs
103 _ West Main
Post Office Box 637
Wilburton, OK 74578
(918) 465-5033

On the ____ day of May, 1997, I certify that I placed in the U.S. Mail, first class postage pre-paid a true and correct of the above and foregoing Plaintiff's Response to Defendant Bob Rabon's Motion to Dismiss to the following:

Bruce Green Eric Janzen
Assistant U.S. Attorney W.G. "Gil" Steidley, Jr.
1200 West Okmulgee Steidley & Neal
Muskogee, OK 74401 P.O. Box 1165
McAlester, Oklahoma 74502
Officer Bill Barrow
Officer Mike Russell Chief Hoppy Dennison
Officer Chris Welch Post Office Box 1424
Officer Steven Flowers Idabel, OK 74545
Security Officer Kenneth Johnson
Security Officer Blake Johnico
c/o Kim Reed
Director of Law Enforcement
Choctaw Nation of Oklahoma
Drawer 1210
Durant, OK 74702-1210

_________________________________
Douglas G. Dry