DOUGLAS G. DRY,
JUANITA MCCONNELL, and
ROSIE BURLISON,

Plaintiffs,

vs.

UNITED STATES OF AMERICA et al.,

Defendants.

Case No. CIV 97-113-B

W. G. (GIL) STEIDLEY, JR., OBA #8591
STEIDLEY & NEAL
100 E. Carl Albert Parkway
P.O. Box 1165
McAlester, OK 74502
(918) 423-4611
COUNSEL FOR DEFENDANT
BOB RABON

In his Brief in Support of Motion to Dismiss [hereinafter "Movant's Br."], Defendant Bob Rabon noted that in the Plaintiffs' fifty-one page Amended Complaint [hereinafter "Complaint"] against thirty-three individual and governmental defendants, the sole allegations against him were that he is the Choctaw Nation's tribal attorney; that in his capacity as a "tribal official[ ]" he made statements that Plaintiffs had been arrested for passing out literature; and that following the arrests of the instant Plaintiffs by tribal police, he "conspired" with the tribal police chief "as to what criminal charges could justify the illegal acts of the Defendant police officers." Movant's Br. at 1-2. Plaintiffs have not disputed the accuracy of that characterization of their Complaint. See Plaintiffs' Brief in Response to Defendant Rabon's Motion to Dismiss passim [hereinafter "Br. in Opp."]. As a related matter, Plaintiffs' Brief in Opposition does not dispute Defendant's observation, Movant's Br. at 2, that "nowhere does [the Complaint] identify the precise basis for the existence of any federal claim against him." 1

Aware of the permissive nature of federal notice-pleading rules, see FED. R. Civ. P. 8, but unable to conceive of any private federal civil claim against him on the facts alleged, Defendant begged this Court's indulgence for the somewhat "scattershot fashion" in which he was forced to proceed in the brief accompanying his Motion to Dismiss. Movant's Br. at.3.2 In so proceeding, Defendant made two factual assumptions, both of which Plaintiffs' Brief in Opposition reveal to have been correct.

First, Defendant expressly assumed that no "state of Oklahoma tort claims" were asserted against him, though a general allusion was made to such claims in the Complaint's first paragraph. Movant's Br. at 14-15. No reference to any such claim is included anywhere in Plaintiffs' Brief in Opposition. See Br. in Opp. passim. Second, Defendant expressly assumed that the Complaint's reference to his making "statements" was "made for some evidentiary or informative reason, or for its potential relevance to some conspiracy or delict wholly extrinsic to defendant Rabon." Movant's Br. at 4. That assumption also turns out to have been correct: not only do none of Plaintiffs' propositions attempt to establish any federal claim based upon Defendant's alleged "statements," Br. in Opp. passim, but such "statements" generate not so much as a sentence fragment anywhere in the body of that brief.3 Moreover, since Defendant's assumption regarding that matter was not only expressly stated but prominently situated in the first paragraph of the body of his Brief in Support of Motion to Dismiss, see Movant's Br. at 4, Defendant respectfully submits that if incorrect, that assumption might reasonably have been expected to invite dispute by Plaintiffs.

Thus, by reduction, Defendant - and this Court - are left with an inescapable conclusion: that Plaintiffs would have this Court hold that allegations that a "Tribal Attomey," Complaint para. 16, who was such "at all times relevant to [the] complaint," id, engaged in a post-arrest "conspiracy" with that tribe's Chief of Police "as to what criminal charges could justify the illegal acts" of tribal police officers, id paras. 51, 99, 128, states a private federal civil claim for money damages against the tribal attorney. That proposition is untenable.

By this stage of the briefing on the Motion to Dismiss, the exclusion of some potential federal-claim theories has become certain. Supra at 1-2 n.2. But just as Plaintiffs' Complaint is singularly unhelpful in identifying Plaintiffs' theory of the case against Defendant Bob Rabon, the same may be said of their brief opposing the pending Motion to Dismiss. That brief - replete with apparently unconscious mutually-exclusive and self-contradictory propositions,4 misleading characterizations of caselaw;5 flatly irrelevant assertions (ignoring even-arguably-relevant ones);6 flatly incorrect statements of the law (ignoring even-arguably-debatable ones);7 assertions that flatly contradict the Complaint (ignoring those that might charitably be characterized as merely "in tension with" that document);8 a stream-of-consciousness organizational style, randomly blending largely irrelevant factual assertions with largely irrelevant (and often, flatly incorrect) legal ones; not a single proposition (among its seven - two of which are numbered "VI") squarely identifying a single proffered federal claim; a series of evidentiary attachments at the Motion to Dismiss stage of the proceedings;9 an allusion to Nuremberg; and assertions that apparently everybody except Plaintiffs is "confused"10 (including Defendant Rabon - sublimely, as to a proposition whose factual predicate Plaintiffs cite backwards from comments in Federal Register11) - can only be characterized as bizarre. Defendant assures this Court that such a characterization is not made lightly.

Nevertheless, to meet his burden of demonstrating that on no set of facts consistent with the Complaint can Plaintiffs state a claim on the basis of which the relief requested can be awarded against him, Defendant must also parse Plaintiffs' brief for clues as to the nature of any potential federal claim. In so doing, Defendant finds two potential theories - a more-or-less expressly stated Indian Civil Rights Act claim, see Br. in Opp. at 10- 11, and a potential Bivens claim, see id at 1-9 [though Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), is neither cited nor mentioned anywhere in Plaintiffs' brief, no Bivens claim is identified, and among the eighteen cases or pending cases Plaintiffs cite, see Br. in Opp. at i, only Nixon v. Fitzgerald, 457 U.S. 731 (1982), is a Bivens case, and Plaintiffs cite that case (wrongly, supra at 4 n.7) only in passing, Br. in Opp. at 9]. It is to these two potential theories that Defendant will therefore devote his attention. 12

I. THE INDIAN CIVIL RIGHTS ACT CREATES NO FEDERAL CLAIM AGAINST DEFENDANT BOB RABON WITH RESPECT TO ANY ADVICE GIVEN BY HIM TO THE CHOCTAW NATION'S TRIBAL COUNCIL.

The second proposition numbered "VI" in Plaintiffs' Brief in Opposition contains, inter alia, dark hints of unalleged conspiracies, see Br. in Opp. at 10, to which Defendant may not respond without the risk of himself raising "new matter," converting his pending Motion to Dismiss into a Motion for Summary Judgment, supra at 4 n.4. Such innuendo, in any event, is irrelevant to the pending Motion, since Plaintiffs have neither pled any such matters nor attempted to base any federal claim upon them.

But in that Proposition is also to be found an assertion that the Indian Civil Rights Act of 1968, Pub. L. No. 90-284, Title 11, 82 Stat. 77 (codified in relevant part at 25 U.S.C. § 1302 (1994)) Such a claim is tendered against Defendant Bob Rabon apparently on the basis of his asserted "advice" to the Choctaw Tribal Council concerning CHOCTAW CONST. art. X, § 4, which limits Choctaw citizens' absolute rights to address meetings of that body to situations in which such requests generate unanimous Council consent. Br. in Opp. at 10- 11.13

Apart from the logical absurdity of attempting to base a federal claim for money damages against a tribal attorney on "advice" he or she allegedly renders to a tribal council (the correctness of which, assuming any such advice was ever given herein, Plaintiffs do not deny) regarding the meaning of a facially-clear provision of a tribe's constitution, nowhere in Plaintiffs' Complaint is to be found even the remotest allusion to such a claim (or, for that matter, the existence of any such alleged "advice"). Moreover, Plaintiffs offer as authority for such a claim only their impressionistic interpretation of Santa Clara Pueblo. See Br. in Opp. at 11; but cf Santa Clara Pueblo, 436 U.S. at 65-66 & nn. 20-22 (providing context making clear that the tribal "forums" referred to by the Court were, in fact, judicial or quasi-judicial ones). And diligent research has revealed not one case - at any level (federal, tribal, or state) in which a court has interpreted the ICRA as providing a right to personally address a tribal council under circumstances at variance with those specified by a tribal constitution. Cf Santa Clara Pueblo, 436 U.S. at 61 ("[T]he structure of the statutory scheme and the legislative history of Title I [of the ICRA] suggest that Congress' failure to provide remedies other than habeas corpus was a deliberate one."); id at 66-70 (discussing that legislative history in some detail); Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457, 1460-62 (10th Cir. 1989) (holding, that habeas corpus is the exclusive federal-court remedy for alleged ICRA violations); Wheeler v. Swimmer, 83 5 F.2d 259, 261 (10th Cir. 1987) (same)

II. PLAINTIFFS CAN STATE NO BIVENS CLAIM AGAINST DEFENDANT ON FACTS ALLEGED IN THEIR COMPLAINT.

As noted above, supra at 6, Plaintiffs nowhere cite Bivens in their brief, and make only one passing, incorrect, and for present purposes irrelevant reference to any case in which Bivens relief was sought. Defendant might speculate that Plaintiffs' apparent Bivens-shyness may result from awareness of the unbroken avalanche of federal precedent rejecting both of the necessary elements of any Bivens claim under circumstances manifestly controlling of the instant case, see, e.g., infra at 17-18, (citing, Supreme Court caselaw noting that sources of tribal and federal sovereignty are distinct); Chapoose v. Hodel, 831 F.2d 931, 934-35 (10th Cir. 1987) (noting that exercises of tribal sovereignty are neither state nor territorial action for purposes of federal civil rights litigation); Wheeler v. Swimmer, 835 F.2d at 262 ([T]he safeguards of the federal constitution were not extended wholesale to individual members of Indian tribes."); Nero, 892 F.2d at 1466 n. 13 ("[T]he above holding is dispositive of plaintiffs' alleged constitutional claims under Bivens. In any event, federal constitutional protections extend to individual Indians only to the extent provided by the
ICRA. . . ."); cf. Wheeler v. Swimmer, 835 F.2d at 262 ("Although appellants have couched this appeal in terms of alleged violation of their rights by individuals the interest in preserving the right of self-government in Indian tribes is equally strong."); Nero, 892 F.2d at 1462-63 (discussing civil rights actions against tribal officials generally); supra at 6 n. 12 discussing Nero and Wheeler v. Swimmer in the context of "intratribal dispute" doctrine. But what is not speculation - and is, in fact, a matter of public record - is that in Russ v. Roberts, Case No. CIV-94-101-S (E.D. Okla. Apr. 29, 1994), in which Defendant Bob Rabon and counsel for Plaintiffs (and Co-Plaintiff) herein were opposing counsel of record, Judge Seay of this Court, after full briefing by the instant Defendant (and his co-counsel) on the Bivens issue, held foursquare:

Officers and employees of an Indian tribe administering federally- funded programs act under color or authority of tribal law and not federal law. Further, officers and employees of an Indian tribe are tribal officials or tribal agents, not agents or officials of the federal government. Thus, plaintiff may not state a Bivens cause of action against those defendants in this court. The court finds that plaintiffs complaint fails to confer subject matter jurisdiction on this court as to these parties. Accordingly, the defendants' motion to dismiss is granted.

Russ (slip op. at 2) (emphasis added).

As in Russ, see generally id. (emphasis added) ("[P]laintiff's complaint is not specific as to the particular cause of action she brings against the defendants. . . ."), it is the case here that with respect to Defendant Bob Rabon, Plaintiffs' Complaint is not particular as to the particular cause of action they bring against him. In the instant case, with the exception of the Indian Civil Rights Act claim apparently proffered by Plaintiffs, Br. in Opp. at 10-11, disposed of supra in Proposition 1, Plaintiffs' chaotic Brief in Opposition provides virtually no clue with respect to the nature of any other federal claim asserted against Defendant. But on the assumption that the first nine pages of Plaintiffs' brief are intended to establish something - and given Plaintiffs' repeated incantation of the proposition that (presumably, for present purposes) the Choctaw CFR court is a federal court, and that the Choctaw Nation has pretty much no tribal civil or criminal, and proscriptive or adjudicatory jurisdiction over anything, Defendant can only assume that they mean to have a shot at Bivens relief without either saying so or being forced to brief that theory.

A. THIS COURT MAY GRANT DEFENDANT'S MOTION TO DISMISS WITHOUT ENGAGING IN ANY ANALYSIS OF THE CHOCTAW NATION'S SOVEREIGNTY.

Congress enacted what has become 42 U.S.C. § 1983 in the Ku Klux Klan Act of 187 1, Act of Apr. 20, 1871, § 1, 17 Stat. 13. Section 1983 begins with the words, "Every person who, tindercolor of. . . ." 42 U.S.C. § 1983) (1994) (emphasis added). In the congressional debate on that proposal in 187 1, Senator Edmunds, the chairman of the Senate Judiciary Committee, early on drew a distinction between actions pursuant to law and actions "under color of' same: "The first section is one ... defining the rights secured by the Constitution ... when they are assailed by any state lawor tinder color of any state law. . . ." Monroe v. Pape, 365 U.S. 167, 171 (196 1) (emphasis added). By 1941, the Supreme Court had held in a case brought under what is now 18 U.S.C. § 241 that "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of state law." United States v. Classic, 313 U.S. 299, 326 (194 1); cf Screws v. United States, 325 U.S. 91, 108-11 (1945) (plurality opinion) (reaffirming Classic, and holding for purposes of what is now 18 U.S.C. § 242 that an action might be under "color" - or "pretense" - of law even if unauthorized or forbidden by the law of the relevant governmental unit); Monroe, at 365 U.S. at 183-85 (reaffirming Classic and Screws, and applying, their approach to defining the "under color" requirement to 42 U.S.C. § 1983).

Following a quotation from the Fourth Amendment, the first sentence of Bivens, which established the nonstatutory federal claim that now bears the name of that case, states:

In Bell v. Hood, we reserved the question whether violation of that command by a federal agent acting tinder color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does. Id. at 389 (citation omitted) (emphasis added). The Bivens and Section 1983 approaches to the "under color" requirement - informed by and grounded in cases such as Monroe, Screws, and Classic, have not diverged from each other since the establishment of the Bivens action a quartercentury ago.

Plaintiffs allege that Defendant herein "is currently and was the Tribal Attomey for the Choctaw Nation at all times relevant to this complaint." Complaint para. 17. Nowhere in the counts against Defendant (or anywhere else in the Complaint) do Plaintiffs allege that he is anything other than a tribal official. Thus, even were his actions not only wrongful (which Defendant cannot for purposes of the pending Motion contest), and utterly unauthorized - or even forbidden by - tribal law (a legal proposition which Defendant will devote the remainder of this Reply to contesting very vigorously), those actions would have been possible only because he "is clothed with the authority of "tribal law, see supra at I I (quoting Classic), specifically, the tribal-attorney position established by CHOCTAW CONST. art. IX, § 12 (the validity of which Plaintiffs do not contest). In consequence - as a matter of law - Defendant Rabon acted under color of tribal law no matter what the proscriptive or adjudicatory jurisdiction of the Choctaw Nation may be.

B. AT ALL TIMES RELEVANT TO THE COUNTS LEVELED AGAINST HIM, DEFENDANT BOB RABON WAS ACTING NOT ONLY "UNDER COLOR" OF TRIBAL
LAW, BUT "PURSUANT TO" THE INHERENT TRIBAL SOVEREIGNTY OF THE CHOCTAW NATION.

I . The Sovereignty of Indian Tribes Is Inherent, Stems from Time Immemorial, Is Legally Distinct from That of the United States, and Includes Criminal Proscriptive and Adjudicatory Jurisdiction Over Tribe Members.

In his earlier brief on the pending Motion, Defendant noted that Talton v. Mayes, 163 U.S. 376, 382-85 (1896), had early recognized not only the non-derivative nature of tribal sovereignty, but the corollary proposition that the United States Constitution does not apply to the acts of tribes or tribal agents. Movant's Br. at 13; cf id at 14 (citing other cases). In three areas (and three areas only), the Supreme Court has held that tribal sovereignty was ipso facto diminished by the subordinate nature of tribal sovereignty as contrasted with that of the United States: the right to freely alienate tribal lands without federal consent, Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823); the right to enter into direct commercial or governmental relations with foreign nations, Cherokee Nation v. Georgia. 30 U.S. (5 Pet.) 1, 17-18 (1831); and the right to exercise criminal
adjudicatory jurisdiction over nonmembers of the tribe, Duro v. Reina, 495 U.S. 676, 685 (1990);
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978). Cf, e.g, United States v. Wheeler,
435 U.S. 3) 13, 326 (1978) (providing synthesizing principles, and citing additional caselaw). In these three areas (none of which affects tribes' relations with their own members), any power granted to tribes by Congress would necessarily be delegated federal powers.

In every other area in which tribes exercise jurisdiction of any sort,14 the powers exercised are inherent tribal powers, as historic as well as recent Supreme Court cases make clear.

Express Supreme Court recognition of the inherency of tribal criminal jurisdiction over tribe members has long historical roots: in Exparte Crow Dog, 109 U.S. 556 (1883), the Court held that federal courts lacked power to try tribe members for alleged Indian country crimes.15Thirteen years later, the Court specifically recognized the inherency of tribal criminal jurisdiction over tribe members, and the consequential inapplicability of the United States Constitution to such prosecutions. Supra at 13 (discussing Talton).

Modem-era cases have unwaveringly reaffirmed the principles of Crow Dog and Talton. Citing, inter alia, those two cases, the Supreme Court, in Wheeler, held foursquare that "[t]he right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions." 435 U.S. at 322; see also Santa Clara Pueblo, 436 U.S. at 56 (citing Talton, and stating that "[a]s separate sovereigns preexisting the Constitution, tribes have historically been regarded as unconstrained by those constitutional principles framed specifically as limitations on federal or state authority"); 16 Duro, 495 U.S. at 684 ("Wheeler reaffirmed the longstanding recognition of tribal jurisdiction over crimes committed by tribe members."); id. at 693 (citing Talton: "It is significant that the Bill of Rights does not apply to Indian tribal governments."); id. at 686 (emphasis added) (ellipses in original) (approvingly quoting Wheeler. "[T]he powers of self government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe.... [T]hey are not such powers as would necessarily be lost by virtue of a tribe's dependent status.")

2. For Purposes Relevant to the Instant (Bivens) Proposition, CFR Courts Do Not Exercise Federal Authority.

Defendant Bob Rabon does not deny for a moment that CFR courts partake of certain federal aspects, and that for some purposes may quite accurately be described as "federal." To be sure, such courts, established by the Bureau of Indian Affairs in 1883, see FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 333 & n. 11 (Rennard Strickland ed. 1982) [hereinafter "COHEN"], were in that era of federal "Indian assimilation" policy reasonably characterizable as "mere educational and disciplinary instrumentalities" of the United States. See United States v. Clapox, 35 F. 575, 577 (D. Or. 1888). Though "Congress never expressly authorized these courts," COHEN, supra, at 3' :)3, the Clapox court sustained their validity pursuant to the Secretary of Interior's general authority over Indian affairs. See generally Act of July 9, 1832, ch. 174, § 1, 4 Stat. 564; Act of July 27, 1868, ch. 259, § 1, 15 Stat. 228 (providing such general secretarial authority). That authority, now codified at 25 U.S.C. § 2 (1994), continues to be an oft-recognized basis for the legality of such courts today. E.g., Tillett v. Lujan, 931 F.2d 636, 641 & n.2 (10th Cir. 1991).

Although such courts "functioned mostly as instruments of Bureau control until ... the Indian Reorganization Act of 1934," 17 COHEN, supra, at 333, and still "retain some characteristics of... agenc[ies] of the federal government," Tillett, 931 F.2d at 640 (citing cases and enumerating some contexts in which such courts may indeed be characterized as "federal"), what is important for present (Bivens) purposes is the nature of the sovereignty they now exercise: "Courts of Indian 0ffenses operate tinder the residual sovereignty of the tribes rather than as agencies of the federal government.'' COHEN, supra, at 251; cf Tillett, 931 F.2d at 640 (emphasis added) ("CFR courts ... 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.").18

Defendant represents to this Court that diligent research has revealed not one case in the United States Supreme Court or a lower federal court - that treats the criminal proscriptive or adjudicatory jurisdiction of an Indian tribe differently, for the purposes necessary to sustain a Bivens claim against Defendant, contingent on whether a tribe employed tribal or CFR courts. Defendant can also represent that not one case cited by Plaintiffs' Brief in Opposition does, either.19 The sum total of Plaintiffs' caselaw authority on a proposition without which it cannot prevail on any Bivens claim against Defendant, in short, is zero.

Against zero may be arrayed a virtual avalanche of precedent, as the briefest of forays through a few modem federal cases will reveal. In Williams v. Lee, 358 U.S. 217, 223 (1959) (emphasis added) the Court concluded that "the exercise of state jurisdiction [on the facts therein] would undermine the authority of tribal courts over reservation affairs." The Navajo tribal courts therein were CFR courts, id at 222; had they not been exercising tribal power, there could have been no such sovereignty for the state of Arizona to have "infringed." See also, e.g. United States v. Mazurie, 419 U.S. 544, 558 (1975) (citing Williams as a "tribal courts" case); Native American Church v. Navajo Tribal Council, 272 F.2d 131, 132 (10th Cir. 1959) (referring, in a case decided ten months after Williams, to the Navajo CFR court as a "tribal court.")

By 1978, the Supreme Court had also made clear that for purposes of the applicability of the "double jeopardy" clause, U.S. CONST. art. VI, the critical distinction focused on the source of the sovereignty being exercised. Wheeler, 4' 35 U.S. at 319-20 (emphasis added) ("What differentiated those cases from Bartkus and Abbate was ... the ultimate source of the power under which the respective prosecutions were undertaken."); id. at 322 ("The[] right of internal self-government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions."); id. at 328 (emphasis added) ("That Congress has in certain ways regulated the manner and extent of the tribal power of self-government does not mean that Congress is the source of that power."); Duro, 495 U.S. at 686 (emphasis added) ("Our finding that the tribal prosecution ... in Wheeler was by a sovereign other than the United States rested on the premise that the prosecution was part of the tribe's internal self-governance.").

Perhaps no clearer statement could be written in support of Defendant's proposition that in prosecuting tribe members - such as the Plaintiffs herein - the source of the authority for CFR court prosecutions is tribal rather than federal. Consequently, the fact that a tribe employs such a court to assist in self-governance matters converts not one tribal official's acts into action "under color" of federal law for Bivens purposes.

3. In Consequence, Plaintiffs Have No Rights Under the United States Constitution against Defendant Bob Rabon.

Since Talton established a century ago that the Constitution is not applicable to exercises of tribal sovereignty, any contention of Plaintiffs that they have federal constitutional rights against Defendant collapses along with their assertion that their CFR-court prosecutions for the offenses their Complaint enumerates were pursuant to the sovereignty of the United States. Against the mass of precedent tendered above, Plaintiffs proffer precisely one item of authority: comments to proposed regulations not themselves incorporated - then or now - into any federal regulation. Plaintiffs correctly state that one of the comments in the Federal Register (to proposed 25 C.F.R. § 11.205) states that the United States Constitution applies to CFR courts. (As noted above, supra at 5 n. 11, that comment further states that the ICRA also applies - precisely the opposite proposition from that which Plaintiffs assert it says.) But giving Plaintiffs their due, at least on the constitutional-rights question, the Federal Register comment is some authority.

But Defendant, having also diligently researched the caselaw on this matter, has again been unable to locate a single case supporting that proposition. Apparently the same may be said of the author of the two-sentence comment, since although elsewhere offering caselaw supporting other propositions, none is offered in support of the cited comment's conclusion on the constitutionalrights issue. Plaintiffs' brief also offers none.

Moreover, the comment is offered in support of an extension of procedural CFR court requirements in excess of those the ICRA; such authority for the regulation in question would have been necessary only if the ICRA's requirements were held to foreclose secretarial authority, long recognized under 25 U.S.C. § 2 (1994), over CFR courts' structure. But there is no case so holding. And the internal logic of the comment implodes when it is recognized that the ICRA applies some but not all of the provisions of the Bill of Rights to Indian tribes, COHEN, supra, at 203, and defines "Indian court" to include CFR courts. 25 U.S.C. § 1301(3). But if CFR courts were already subject to the full guarantees of the United States Constitution, including the ICRA's rights as protected by such courts would have been the most futile (let alone gratuitously confusing) of redundancies. And in any event, the regulations accompanying the comment, rather than simply providing that the United States Constitution applies, simply list, in piecemeal fashion, many - but by no means even remotely all - of the Constitution's specific rights (and other) protections. In light of the above analytical problems, the caselaw tracing in an unbroken line back to Talton, and the dispositive nature of the "source" of sovereignty issue described above, Defendant submits that Plaintiffs' sole authority on the constitutional-rights questions should be given little (if any) weight. See g-enerally 25 U.S.C.A. § 1301(2) (West 1983 & Supp. 1997) ( ... [P]owers of selfgovernment' means and includes all governmental powers possessed by an Indian tribe, executive, legislative and judicial, and all offices, bodies, and tribunals by and through which they are executed, including-, courts of Indian and offenses. . . .").

4. Plaintiffs' Attempt to Maintain that the CFR Courts of the Choctaw Nation Are Different from Those of Every Other Tribe Employing Such Courts is Untenable.

In their Brief in Opposition, Plaintiffs note that Defendant was Counsel of Record for the Chickasaw Nation in Oklahoma Tax Comm'n. v. Chickasaw Nation, 115 S.Ct. 2214 (1995), in which treaty rights common to the Chickasaw and Choctaw Nations were, inter alia, at issue. See generally id. at 2224-25 (reproducing a portion of the Treaty of Dancing Rabbit Creek, cited by Plaintiffs to this Court); id at 2223 n. 15 (discussing the manner in which Chickasaw Nation became beneficiaries of rights pursuant to that treaty).

It is a matter of public record that in that case, Respondent Chickasaw Nation's brief represents to the United States Supreme Court that on careful review of every Indian treaty which with a very high degree of diligence could be located in the federal Statutes at Large, counsel for respondent could represent that the relevant treaties provided the Choctaw and Chickasaw Nations with sovereign rights greater than those enjoyed by any other tribe, under any treaty ever entered into in the history of the United States of America. See Brief of Respondent at 1 -11, Chickasaw Nation, 115 S.Ct. 2214 (No. 94-77 1). Though the Chickasaw Nation did not prevail on its treaty argument, four Supreme Court Justices concluded two years ago that the relevant treaty provisions alone, 115 S.Ct. at 2223 & n. 12, granted rights to those Nations, see 115 S.Ct. at 2225-26 (Bryer, J., dissenting in part), that the five-Justice majority (on that issue) characterized as extraterritorial "supersovereignty. " Plaintiffs would now have this Court construe the Choctaw treaties as profoundly reducing the sovereignty of that Nation, by subjecting its actions to review under the United States Constitution - which no case located by Defendant in the last century has held applicable to any other of the United States' approximately five hundred federally-recognized tribes. See Br. in Opp. at 7.

In this context, Defendant respectfully submits that it should suffice to simply reinvoke Talton, and move on. Cf Wheeler v. Swimmer, 835 F.2d at 261 (rejecting a similar argument regarding, the Cherokee Nation's sovereignty).

Plaintiffs' final argument in this regard is that CHOCTAW CONST. arts. XII, XIII deny the Choctaw Nation's ability to exercise any inherent criminal jurisdiction which it otherwise might possess, in light of a 1983 referendum conducted among tribal voters. Apparently never contemplating the problem of how this Court might acquire jurisdiction to resolve a question of Choctaw constitutional law, see generally supra at 6 n. 12 (discussing Tenth Circuit's approach to "intratribal disputes" doctrine), Plaintiffs would apparently have this Court read that referendum as "legislative history" against which the Choctaw Constitution must be read. E.g., Br. in Opp. at 1-5, 9. While the jurisdictional issue would itself be fatal, it is noteworthy that CHOCTAW CONST. art. XIII, § grants theChoctaw Tribal [Constitutional] Court the . 'exclusive jurisdiction to decide disputes ... arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council," cf id art. XIII, § 3 ("The decision of the Tribal Court shall be final."). In Durant v. Dry, Case No. C-96-02 (Choctaw Tribal [Constitutional] Ct., Dec. 3, 1996), to which each of the instant Plaintiffs was a party, that Court rejected the theory now tendered to this Court.

Defendant Bob Rabon respectfully submits that Plaintiffs have not stated - and cannot state a federal claim against him on the facts alleged, and that in consequence, no basis exists for the exercise of federal jurisdiction. Defendant therefore requests this Court to dismiss, with prejudice, all counts pending, against him, and such other further relief to which the Defendant shows himself entitled.

Respectfully submitted,

1. The difficulty of precisely identifying the proffered federal claim(s) against Defendant Bob Rabon is compounded by the fact that "demand" (final) paragraphs of each of the three counts in which he is named a defendant (Counts I, VII, and XI) specify the rights alleged to have been violated by the tribal police codefendants to those counts, but are utterIy silent -except for the demand for damages -as to him. See Complaint paras. 57, 104, 134. (back)

2 In so proceeding, Defendant urged, inter alia, that both congressional intent and longstanding federal judicial practice precluded the inference of private, federal, money damages claims against tribal agents that might adversely affect the effective exercise of tribal sovereignty, absent express legislative creation of such a claim, Movant's Br. at5-9, 16; that the inference of such a claim against a tribal attorney grounded in advice the attorney rendered to his or her client would adversely affect the effective exercise of such sovereignty, id at 6; that the only private federal civil claim Congress has ever created against a tribal agent is for habeas corpus (not relevant herein), id. at 6-7: that Plaintiffs have no cognizable federal claim against Defendant based on 42 U.S.C. § 1983, Movant's Br. at 9- 10: or on treaties, id. at 10; or on state law grounds, id at 14-15; or on the Indian Law Enforcement Reform Act, id. at 11; or on the Federal Tort Claims Act, id.; or on 42 U.S.C. § 1985(3), Movant's Br. at 12-13. With the single exception to be discussed infra in Proposition I, Defendant has been unable to locate a single sentence anywhere in Plaintiffs' Brief in Opposition in which any of these propositions is disputed. (back)

3 In their Statement of the Case, Plaintiffs reassert the Complaint's "statements" allegations, compare Br. in Opp. at iii (asserting the existence of public "statements" by Defendant Bob Rabon to the effect that Plaintiffs had been arrested for passing out political literature) with Complaint paras. 53, 100, 130 (same); compare also Br. in Opp. at iii (asserting that Plaintiffs were in fact charged with no such crime) with Complaint paras. 54, 101, 131 (same), but do not even assert the existence of a federal claim based thereon. And while the textual sentence accompanying this
footnote is unqualifiedly accurate. it should be noted that the body of Plaintiffs' brief makes one reference to alleged public "statements" - "statements" allegedly made not by Defendant herein, but by tribal Prosecutor Robert L. Rabon, a fact as to which Plaintiffs' themselves are apparently aware. See Br. in Opp. at 8. (back)

4 To take just one easily-illustrated example, after asserting that Defendant Bob Rabon is a non-Indian (which, as a purely factual matter, the Complaint does not allege, see generally infra at 5 n.9 (discussing possible consequences of admission or denial by Defendant on that matter); infta at 6-7 n. 12 (same)), Plaintiffs conclude:

It is ironic that a nonIndian 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 helped set up, without the agreement of the non-Indian.

Br. in Opp. at 10. But the Plaintiffs' own theory that the jurisdiction of both the Choctaw Tribal [Constitutional] Court, see generally CHOCTAW CONST. art. XIII, § I (describing that Court's "exclusive jurisdiction"), and the Choctaw Court of Indian 0ffenses (giving Plaintiffs the benefit-of-the-doubt regarding that Court's proper name, see generally Br. in Opp. at 3 (discussing the Court-name issue)): cf 25 C.F.R. § 11. 100(a)(12)(ii) (1996) (listing the Choctaw Nation as a tribe whose Indian country is subject to regulations under 25 C.F.R. pt. 11), were limited by the 1983 referendum, see generally id. at I (discussing that referendum), cannot distinguish between civil and criminal jurisdicrion, precisely because that referendum (on the assumption that Plaintiffs quote it correctly), dealt with both. Plaintiffs' argument that the Court of Indian 0ffenses has no tribal criminal jurisdiction, e.g, id. at 5. therefore applies equally to civil jurisdiction - a fact that Plaintiffs may themselves recognize, id. (describing that court as a "federal administrative court exercising federal jurisdiction"). Sounder Plaintiffs' exotic theory, there could be neither criminal nor civil "redress" on tribal-law grounds against Defendant Bob Rabon whether or not he is a tribal member.

Thus does whatever point Plaintiffs are attempting to make in the first paragraph of page 10 of their brief implode; the same observation applies to the second-to-last sentence of their brief, see Br. in Opp. at 11, which falls into the same self-consuming logical trap. (back)

5 Again, to take just one easily-illustrated example, if Plaintiffs' brief attempts unequivocally to establish anything, it is that Courts of Indian 0ffenses - particularly but not exclusively, see Br. in Opp. at I (distinguishing between "two types of Indian courts: tribal courts and CFR courts"); id. at 5 (citing the Federal Register and an Eighth Circuit case); id. at 7 (citing the Federal Register), the Choctaw Court of Indian 0ffenses - are federal courts, exercising federal authority. See id. passim. Along the road, Plaintiffs cite Tillett v. Lujan, 93 1 F.2d 636, 639 (10th Cir. 199 1), for the proposition that "[T]he creation of the Courts of Indian 0ffenses 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." Br. in Opp. at I (quoting Tillett, 931 F.2d at 639). That statement is as legally impeccable as a proposition of law can be.

But two paragraphs later, the Tenth Circuit adds an important qualifier, manifestly germane to the correct characterization of Courts of Indian 0ffenses generally: "Designated CFR courts that have not been supplanted by independent tribal courts pursuant to [25 C.F.R.] retain some characteristics of an agency of the federal government.'' Tillett, 931 F.2d at 640 (emphasis added). And the paragraph following that strikes a balance with respect to their correct characterization: "CFR courts, however, also function as tribal courts; they constitute the judicial arm through which the tribe can exercise its jurisdiction until such time as the tribe adopts a formal law and order code." Id.; cf 25 C.F.R. § 11. 100(c) (1996) (providing current regulation replacing C.F.R. provisions cited by the Tenth Circuit in Tillett). Since Tillett is a recent case from the Court of Appeals of this circuit that cites numerous relevant Supreme Court cases. treats rather comprehensively the issue surrounding the proper characterization of CFR courts for the Anadarko Area [western Oklahoma BIA] Office, and addresses a number of other issues manifestly relevant herein in a manner quite favorable to Defendant, he believes that his characterization of Plaintiffs' out-of-context quotation of the first sentence of that case (following the Court's statement of facts and standard of review) as contextually "misleading" is not a hyperbolic one. Defendant invites this Court's attention to the entire corpus of that case, and will himself devote substantial attention to it later in this brief. (back)

6 E. a., Br. in Opp. at 8 (citing the existence of a pending case against the Chief of the Choctaw Nation, but without drawing any relevant conclusion therefrom). (back)

7 E. a,.. Br. in Opp. at 8-9 (emphasis added) ("In the federal system, only the President of the United States is absolutely immune from damages liability arising from official acts.") (citing Nixon v. Fitzgerald, 457 U.S. 731 (1982)). While the President is surely absolutely immune under Nixon - and perhaps awareness of that proposition is the reason Plaintiffs stopped at the Cabinet level in naming defendants in the instant suit, cf Br. in Opp. at 4 n.3 (describing lawsuit on related matter against, inter alia. the Governor of Oklahoma) - Plaintiffs themselves cite Hafer v. Melo, 502 U.S. 21 (199 1), see Br. in Opp. at 9, careful reading of which would have revealed to the Plaintiffs the federal caselaw leading to the correct characterization of Nixon: as holding that the President is the only official exercising executive functions - state or federal - entitled to absolute immunity with respect to such functions. See generally Hafer, 502 U.S. at 29 (citing immunity caselaw). (back)

8. Compare Br. in Opp. at I ("Originally, the Plaintiffs were told they were being arrested for violating a tribal ordinance forbidding passing out political literature on tribal or trust land.") with Complaint para. 129 (emphasis added)

("The Plaintiff, Rosie Burlison, never received any information as to why she was arrested other than for resisting arrest, until after being transported from the Clayton City Jail...."). (back)

9. See Br. in Opp. Exhibits A to 1. While Defendant Rabon, as he must for purposes of the pending, motion, contests no well-pled allegation in the Complaint, see, e.g., Gagan v. Norton, 35 F.3d 1473, 1474 n.l (10th Cir. 1994) (discussing that principle with respect to Motions to Dismiss), it is his position that on no set of facts, including any from which Plaintiffs have drawn legal inferences in their Brief in Opposition, can Plaintiffs establish a federal claim on the facts alleged, and consequently that no federal jurisdiction may be established over him in this case. Defendant will therefore treat the attachments only insofar as Plaintiffs' brief attempts to ground in them some federal claim consistent with the facts alleged in the Complaint, and submits that Plaintiffs may not convert Defendant's pending Motion to Dismiss into a Motion for Summary Judgment by themselves presenting "matters outside the pleading." (To whatever extent may be necessary to preserve the status of the pending motion as a Motion to Dismiss, Defendant respectfully requests this Court to exclude any such matters. See generally FED. R. Civ. P. 12(b)). (back)

10. Br. in Opp. at 2 ("Confusion existed"); id. at 3 (same); id. at 2 (Choctaw Nation and BIA confused) id. at 6 (confusion over nature of CFR court); id. (confusion regarding applicability of United States Constitution); id. at 8 (Bob Rabon confused). (back)

11. Compare Br. in Opp. at 7 (emphasis added) ("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) with 58 Fed. Reg. 54408 (Oct. 21, 1993) (specifically stating that the Indian Civil Rights Act applies). See generally 54 Fed. Reg. 54406 (noting that while the effective date of the proposed regulations was Nov. 22, 1993 (the date provided by Plaintiffs' citation), the date of their publication in the Federal Register - and thus the correct citation - was Oct. 21, 1993). (back)

12.Defendant wishes to briefly call this Court's attention to an issue stemming in part from the Indian-law abstention doctrine that is independently fatal to the establishment of any federal claim against him on Plaintiffs' Complaint. Since Plaintiffs' claims against him (whatever they maybe) must be predicated either on the conclusion that their arrests were unlawful, or that they are in fact not guilty of any criminal offenses under Choctaw tribal law (which they assert cannot exist), or both (depending on their theory of liability), it is noteworthy that each of the three counts against Defendant affirmatively alleges that "the criminal charges ... have yet to be resolved." Complaint para. 55 (Count I, Plaintiff Douglas G. Dry); id para. 102 (same) (Count VII: Plaintiff Juanita McConnell); id. para. 132 (same) (Count XI: Plaintiff Rosie Burlison).

As the first steps in his chain of reasoning for purposes of this footnote, Defendant submits that three related legal conclusions inevitably flow from the above observations. First, even were the instant case one involving state court (not tribal-court) prosecutions, and even were it an action for injunction (which it is not), thereby triggering Ex parte Young, 209 U.S. 123 (1908); cf Br. in Opp. at 9 (making legally- irrelevant passing reference to that case), Younger abstention, see Younger v. Harris, 401 U.S. 37 (197 1), would foreclose the possibility of any such relief at this
stage. Second, in the context of Plaintiffs' asserted claims for money damages against Defendant, Complaint paras. 57,104, 1 '04, the instant claim would either be unripe for adjudication, see generally United Public Workers v. Mitchell, 330 U.S. 75, 86-92 (1947) (laying the groundwork for modem Article III-based federal court "ripeness" doctrine), or would inevitably encounter a failure-of-proof problem (since this Court, pursuant to both the immediately-preceding and immediately- following sentences, cannot pre-adjudicate the pending criminal-law matter. Plaintiffs could not establish the factual predicate to any federal claim at this stage), cf Allen v. McCurrv, 449 U.S. 90 (1980) (discussing extrinsic collateral estoppel and res judicata consequences of so doing), Nero v. Cherokee Nation of Oklahoma, 892 F.2d1457, 1461-63 (10th Cir. 1989) (describing Tenth Circuit's approach to federal jurisdiction over intratribal disputes); Wheeler v. Swimmer, 835 F.2d 259, 261 (10th Cir. 1987) (same); Wheeler v. Department of Interior, 811 F.2d 549, 553 (10th Cir. 1987) (same). Third, in the instant Indian-law context, the United States Supreme Court has established a separate (as contrasted with Younger abstention, Pullman abstention, see Railroad Comm'n. v. Pullman Co., 312 U.S. 496 (194 1), Burford abstention, see Burford v. Sun Oil Co., 319 U.S. 315 (1943), and the like) abstention doctrine requiring would-be federal court plaintiffs to first exhaust all their available remedies in tribal courts. National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) (federal question suits); cf Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987) (extending National Farmers to diversity suits).

For the purposes of applying the immediately-preceding paragraph, this case presents itself in the following posture. Plaintiffs' Complaint fails to allege whether Defendant Bob Rabon is or is not a member of the Choctaw Nation. While Plaintiffs' Brief in Opposition asserts that he is not, Defendant can neither admit nor deny that proposition without running the risk of converting his Motion to Dismiss into a Motion for Summary Judgment. FED. R. Civ. P. 12(b); see also supra at 4 n.4; supra at 5 n.9. But not only is the question of Defendant's membership in the Choctaw Nation irrelevant to the issue central to the disposition of Defendant's Motion (whether or not Plaintiffs have stated a claim on the basis of which relief may be granted), but it is also irrelevant for purposes of this footnote. On the assumption that Defendant is a member, then (but for Plaintiffs' theory disposed of infra in Proposition II), Plaintiffs would have a potential civil claim against him in the Choctaw CFR court, and this Court would be required to abstain under National Farmers (though Defendant would in that eventuality urge this Court that dismissal with prejudice, rather than retaining this case on its docket pending resolution of the civil claim in the CFR court would be the appropriate remedy given the legal context discussed elsewhere in his brief). But on the assumption that. as Plaintiffs assert, "Defendant Bob Rabon is a non-Indian," Br. in Opp. at 10, then there might be no non-consensual tribal-court civil jurisdiction over him, and National Farmers might not apply, but Plaintiffs would be left with the inescapable ripeness/failure-of-proof conundrum described above. But since Plaintiffs obtain the relief they request on neither assumption, Defendant's tribal membership need not be resolved for this court to dispose of the counts leveled against him at this stage, on the basis of the above analysis alone.

But given the fact that Plaintiffs can state no federal claim against him consistent with the facts alleged, Defendant respectfully maintains that ail counts now pending against him should be simply dismissed, with prejudice, on the far more analytically straightforward basis that Plaintiffs have stated (and can state) no federal claim against him on the facts alleged.
[hereinafter "ICRA"], as interpreted by Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); cf Br.
in Opp. at 11 (invoking Santa Clara Pueblo, 436 U.S. at 65), provides Plaintiffs with a federally
enforceable right to personally address the Choctaw Nation's Tribal Council. Br. in Opp. at 10- 11. (back)

13 Having earlier argued that the United States Constitution, not the Indian Civil Rights Act, was the relevant touchstone for purposes of the instant litigation, Br. in Opp. at 7-8, Plaintiffs quite unobjectionably (at least from one procedural perspective) proffer this theory in the alternative, id. at I I ("Even if ... the Indian Civil Rights Act applied to Choctaw land. . . ."), apparently on the possibility that Defendant may not be quite as "confused" as Plaintiffs earlier in their brief suggest. (back)

14 Defendant is well aware that such jurisdictional exercises are subject to regulation - or even defeasance - by Congress. See, e.g.,-. , Santa Clara Pueble. 436 U.S. at 58 ("In 25 U.S.C. § 1303, the only remedial provision expressly supplied by Congress (in the ICRA], the 'privilege of the writ of habeas corpus' is made 'available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe."'). But as Defendant will later argue. "[t]hat Congress has in certain ways regulated the manner and extent of the tribal powers of self-government does not mean that Congress is the source of that power." Wheeler, 435 U.S. at 328 (emphasis added). (back)

15 The result (but not the reasoning) of Crow Dog was later modified by Congress, see Act of Mar. 3, 1885, ch. 34 1. § 9, 23 Stat. 385 (codified as amended at 18 U.S.C. § 1153). pursuant to the federal powers discussed supra at 14 n. 14. (back)

16 The Court's limitation of the Constitution's inapplicability to such provisions allows for the opposability to Indian tribes of constitutional provisions such as the Thirteenth Amendment, which by its terms is not limited to governmental action. Plaintiffs invoke no such federal constitutional principle in the instant case. (back)

17 Act of June 18, 1934, 48 Stat. 988 (codified as amended at 25 U.S.C. §§ 461-479 (1994)). That Act, as this Court is well aware, laid the groundwork for the modem era of tribal self-determination and self- government See also Oklahoma Indian Welfare Act, Act of June 26, 1936, ch. 831, 49 Stat. 1967 (codified as amended at 25 U.S.C. §§ 501-509 (1994)). (back)

18 In addition to citing United States Supreme Court caselaw, the Tillett Court at this juncture cited 25 C.F.R. § 11.1(d) and (e.g), as those provisions existed when it decided Tillett in 199 1. Subsequent amendments to 25 C.F.R. pt. 11 (1996) (which provides the regulations governing CFR courts) now require that in addition to the adoption of a secretarially-approved law and order code, a tribe must also establish (and obtain secretarial approval of) its own independent court system in order to have its name deleted from the list of "CFR court tribes." See id. § 11. 100(c). Since Plaintiffs have not pled the following matter either way, Defendant cannot (and therefore will not) make any representation to this Court regarding whether the criminal charges against Plaintiffs, Complaint paras. 54, 111, 13 1, were brought pursuant to a secretarially-approved law and order code, see 25 C.F.R. § 11. 100(e) (1996) (authorizing such codes), or the "criminal offense" code contained in 25 C.F.R. pt. 11, subpart D (1996). See generally 25 C.F.R. 11. 102(a) (1996) (limiting criminal jursidiction of CFR courts to actions pursuant to one or the other of the above). But in either eventuality, since it is the sovereignty of the Choctaw Nation that would be exercised with respect to the prosecution of the instant Plaintiffs, this Court need not make any ruling whatsoever on that matter in order to grant Defendant's Motion to Dismiss. (back)

19 Indeed, since Plaintiffs cite only one Bivens case at all, see supra at 4 n.7, and that case involved a Bivens claim against the President of the United States, it would be impossible for Defendant's review of Plaintiffs' caselaw authority (all of it, not merely Nixon, 457 U.S. 43 1), to have turned out any other way. Even with respect to the non-Bivens "CFR court" - related caselaw invoked by Plaintiffs, see Br. in Opp. at I (invoking Tillett); id at 5 (invoking United States v. Red Lake Band of Chippewa Indians, 827 U.S. 935 (1988)), not a scintilla of support for any Bivens claim against Defendant can be found. Tillett, discussed in part above, e.g, supra at 4 n.5; supra at 16, actually provides strong support for Defendant's central Bivens proposition: that the source of the sovereignty exercised by CFR courts is tribal, not federal. See Tillett, 93 1 F.2d at 640 (emphasis added) (noting that in Iowa Mutual Ins. Co. v. LePlante, 480 U.S. 9, 14-15 & n.6 (1987), the United States Supreme Court "referr[ed] to the provision in the ICRA for the education and training of judges for the Courts of Indian 0ffenses as support for its statement that 'tribal courts play a vital role in tribal self-government. . . .'"); Tillett, 931 F.2d at 640 (noting that in Santa Clara Pueblo, 436 U.S. at 64 & n. 17, the Supreme Court "referr[ed] to Courts of Indian 0ffenses as 'tribal courts"'). And Red Lake Band, which to be sure treats CFR courts as an 'agency of the United States," 327 F.2d at 383, for purposes of a Federal Records Act claim against a tribe by the United States, see generally 44 U.S.C. §§ 3106, 3301 (1994) (providing the statutory basis for such a claim), furnishes no support anywhere in its text for the proposition that for Bivens purposes personnel attached to such courts (even assuming what Plaintiffs neither allege nor argue that Defendant Bob Rabon is such an individual) act "under color" of federal law. (back)

I certify that on the 30th day of May, 1997, a true and correct copy of the above and foregoing Defendant Rabon's Reply Brief to Plaintiffs' Brief in Response to Defendant's Motion to Dismiss was mailed, postage prepaid, to: Douglas G. Dry, 103 1/2 W. Main, Wilburton, Oklahoma 74578, Attomey for plaintiffs; Bruce Green, Assistant U.S. Attomey, 1200 West Okmulgee, Muskogee, OK 74401; Robert Lee Rabon, P.O. Box 726, Hugo, OK 74743; Kim Reed, Director of Law Enforcement, Choctaw Nation of Oklahoma, Drawer 12 10, Durant, OK 74702-1210.