No. CIV-97-113-B

DOUGLAS G. DRY, et al.,

Plaintiffs,
vs.

UNITED STATES OF AMERICA, et. al.

Defendants.

Comes now Plaintiffs, by and through their attorney of record, Scott Kayla Morrison, and respond to Defendant Kim Reed's Motion to Dismiss by asserting the following:

1. Defendant Kim Reed, director of Choctaw Nation's law enforcement program, was present at Tuskahoma, Oklahoma, on September 4, 1995, in a law enforcement capacity. Defendant Reed accosted Plaintiff Rosie Burlison while Burlison was recording the arrest of Plaintiff Juanita McConnell. Reed's aggression was captured by the video camera as shown by Defendant Reed's outstretched hand in her pursuit to turn off Plaintiff Burlison's video camera. See Exhibit 1 attached to Affidavit of Rosie Burlison attached as Exhibit A. In Defendant Reed's actions to prevent Plaintiff Burlison from recording the wilful and aggressive actions of Choctaw Nation police officers, Defendant Reed did turn off the shutter lense of the camera, but mistakenly left the audio recorder on. Defendant Reed asked Plaintiff Burlison, "Do you want to go to jail?" Defendant Reed told Choctaw Chief of Police Hoppy Denison, "Hoppy, we need some help over here," then ordered Burlison "you turn the camera off." Shortly thereafter, Defendant Reed seized Burlison's video camera with physical force. Plaintiff Burlison was handcuffed by Defendant Bill Barrow.

2. Defendant Reed was present at Tuskahoma, Oklahoma, on September 4, 1995, in an investigative capacity. Plaintiff McConnell was placed in a Choctaw Natoin police car and Plaintiff Burlison's video camera, still recording with shutter closed and audio only, was placed in the back seat by the Choctaw Nation police with Plaintiff McConnell. Defendant Reed escorted Plaintiff McConnell to Clayton jail. In the Choctaw Nation police car prior to leaving Tuskahoma, Defendant Reed radioed to Choctaw Nation Chief of Police Hoppy Denison saying, "Hoppy, ... man in checkered shirt, I mean in purple hat has more literature...". See video attached as Exhibit 2 attached to Affidavit of Rosie Burlison, Exhibit A.

3. Defendant Reed further assisted her Choctaw Nation police officers by supervising female escorts for both Plaintiffs Burlison and McConnell.

Prior to Oklahoma statehood, the Choctaw Nation exercised inherent criminal jurisdiction over its members. The Five Civilized Tribes Act of 1906, 34 Stat. 9822 (March 2, 1906) was thought to have to repealed the 1860 Choctaw Constitution, or so everyone assumed until 1976. In 1976, the district court for the District of Columbia decided Harjo v. Kleppe, 420 F.Supp. 1110 (D.D.C. 1976). Creek citizens brought this action to seek a declaration that their 1866 Constitution was still a valid document, among other things, in spite of the Five Civilized Tribes Act of 1906. The court agreed.

Choctaw citizens, using the same attorneys, filed a similar action in the same court in 1977, seeking a declaration that the 1860 Choctaw Constitution was still valid. The Choctaw administration, with the help of tribal attorneys, submitted the 1979 Provisional Constitution for adoption, and asked that the lawsuit be dismissed when that constitution was adopted. The district court dismissed the action and the Choctaw citizens appealed. In 1980, the appellate court issued a decision in Morris v. Watt, 640 F.2d 404 (D.C. 1981), ordering constitutional reform in the Choctaw Nation, setting forth criteria for such reform. One such requirement was to inform Choctaw citizens that the 1860 constitution was still in effect, and to educate the citizens on the fundamental differences between the 1860 and 1979 Choctaw Constitutions. Exhibit C. On May 21, 1983, this election was held. Choctaw voters were asked "Shall the tribal court be expanded to include general civil, criminal and probate matters?" Of the Choctaw citizens voting, 2,567 voted NO, a majority. Exhibit D. The Defendant Bureau of Indian Affairs ("BIA"), as a party to the lawsuit, was informed of this decision made by Choctaw voters. On June 9, 1983, James W. Fritz, Deputy Assistant Secretary-Indian Affairs (Operations) approved the Choctaw Constitution drafted by the mandates of the federal court order. The current constitution was ratified on July 25, 1983. Exhibit E.
The Choctaw Nation of Oklahoma does not have criminal jurisdiction over its members due to this vote of the Choctaw citizens. The criminal jurisdictional limitation of the Choctaw Nation is not found in federal statutes or treaties, rather it is found embedded in the history of the Choctaw Constitution. The Choctaw citizens determined for themselves the form of government under which they would conduct their internal affairs in 1983. The people themselves, "the ultimate source of legislative authority," Id. at 407, limited the criminal jurisdiction of the Choctaw Nation. To look outside of the Choctaw citizenry for tribal authority would be to return to the pre-Harjo days of "bureaucratic imperialism" specifically disallowed in Harjo, and would turn the federal policy of self-determination on its ear.

In the misdemeanor criminal proceedings in the Choctaw CFR Court against the Plaintiffs Dry, Burlison and McConnell, a hearing was held on March 5, 1996, on Plaintiffs-Defendants Motion to Dismiss the criminal charges for lack of subject matter jurisdiction. At this hearing Fred Ragsdale, Jr., was a witness. Ragsdale was appointed by the District of Columbia court in Morris v. Watt as arbitrary administer to form a special master to conduct a series of constitutional elections in the Choctaw Nation.2 Ragsdale testified that criminal jurisdiction was one issue that "we spent a lot of time talking about." Transcript p. 8, Line 17, attached as Exhibit F, the entire transcript is attached to Response to Defendant Robert Rabon's Motion to Dismiss. Criminal jurisdiction was explicitly excluded from the Choctaw Constitution because of the vote against exercising criminal jurisdiction. Transcript p. 11, Lines 7-12. If the Choctaw Constitution was amended to provide for tribal criminal jurisdiction, the tribe could begin exercising criminal jurisdiction again.

At the December 8, 1990 Choctaw Council meeting, the Council discussed signing a contract with the BIA for a law enforcement program. Defendant Bob Rabon, tribal attorney was present and told the Council:

The feds have jurisdiction over basic crimes. There are certain major crimes, .... 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 provisions of the constitution and enactments you pass here.

Speaker Bertram Bobb responded:

You need to say that further and see what we can do to pass a resolution or something to enact one of these court systems. You might ask the rules and regulations committee to look into this.

On June 19, 1992, the Choctaw Council passed CB-111-92 to approve a contract with the BIA for a CFR Court, Court of Offenses. Exhibit G. The "Tribal Court Program" was made a part of the Aide to Tribal Government Contract CT G09 T 907 14. Exhibit H. On August 31, 1992, the Choctaw Nation submitted a proposal to the BIA to contract for a CFR Court. Exhibit I. On Page 4 of the proposal, "Court of Indian Offenses" has been stricken and "a tribal court system" has been handwritten in its place. A meeting was held on September 14, 1992, at the BIA Muskogee Area Office, with BIA officials Ed Lowery, Jack Pate, Larry Mings, Jack Chaney, Karen Ketcher and Lorene Phillips present, regarding the Choctaw Nation court contract. Notes from that meeting reflect that the name of the contract would be changed to "tribal court program." The program goals would be changed to "provide a tribal court for the Choctaw Nation of Oklahoma." Exhibit J. However, several years later, the defendant BIA, a defendant in Morris v. Watt, realized the constitutional limitation disallowing tribal criminal jurisdiction, and admitted that the Choctaw Nation was exercising federal criminal jurisdiction contracted from the BIA. Admissions of BIA in Burlison v. City of Atoka, Exhibit K. The reason for this is the jurisdictional limitation under the Choctaw Constitution. With no tribal criminal jurisdiction to exercise, defendant Reed could not have been acting in a tribal capacity as it pertains to law enforcement activities.

Under 25 CFR Part 11.104(a), the Choctaw CFR court does not have jurisdiction over "Federal or state official(s)" it could not exercise if it were a tribal court. Tribal court of the Choctaw Nation does not have jurisdiction over general civil, criminal or probate matters, according to the Choctaw Constitution. Therefore, there is no Choctaw tribal court or CFR court that has jurisdiction over defendant Reed. If federal court does not assume jurisdiction, Plaintiffs would be without a forum to address their grievances.

Additionally, the only appellate decision of the Choctaw Nation Court of Indian Appeals addressed the issue of jurisdiction of the Choctaw CFR Court. In Morrison v. Choctaw Nation, CA-95-1 (Sept. 23, 1995), 23 ILR 6093 (1996), Exhibit L, the Choctaw appeals court held that the "jurisdiction of the tribal court is defined by the Constitution of the Choctaw Nation of Oklahoma. This exclusive jurisdiction is limited to 'decide disputes arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council'." Id. at 6094. This decision eliminates a civil lawsuit in Choctaw CFR Court stemming from the events on September 4, 1995.
Moreover, since defendant Reed is a federal agent, subject to the federal Tort Claims Act, 28 USC § 2671 et seq., Plaintiff could not make a claim to the BIA and file in Choctaw CFR Court when such claim is denied, even if the other prohibitions were cured. On May 6, 1994, the Choctaw Council adopted Council Bill 99-94, "to approve court rules for the CFR Court of Indian Offenses." These rules shortened the civil statute of limitations, by amending the criminal procedure portion of the rules, from three years to six months.4 The minutes of that council meeting reflect that the reason for such shortening of time was to deny a victim of then-chief Hollis Roberts a civil forum in Choctaw court. Exhibit M. The rules have not been changed since that time, and the six months statute of limitation is still in effect. The time restraints for filing a lawsuit under the Tort Claims Act is six months after notice of the tort claim demand is submitted to the federal government. It is legally impossible to file a claim with the BIA, allow time for the BIA to investigate, either deny the claim or fail to reply, then file a civil lawsuit in Choctaw CFR Court before the statute of limitations run. The actions of the tribal council forecloses a tribal forum.

The exhaustion of tribal remedies, as required in National Farmers Union Insurance Co. Vs. Crow Tribe of Indians, 471 U.S. 845, 85 L.Ed.2d 818 (1985), and Iowa Mutual Ins. Co. V. LaPlante, 480 U.S. 9, 94 L.Ed.2d 10 (1987), assumes there are tribal remedies to exhaust. The case here is that there are no tribal remedies because the tribe, through prior actions, have denied tribal forums to tribal citizens.

Tribal officers are not immune from suit. Santa Clara Pueblo v. Martinez, 98 S.Ct. 1670, 1677 (1978), quoting Puyallup Tribe, Inc. v. Washington Dept. Of Game, 433 U.S. 165, 171-172 (1977); Arizona Public Service Co. V. Aspaas, 77 F.3d 1128, 1133-34 (9th Cir. Ariz. 1995);Tenneco Oil Co. V. Sac and Fox Tribe of Indians of Oklahoma, 725 F.2d 572, 574 (10th Cir. Okla. 1984). Santa Clara Pueblo, as it relates to a tribe, addressed the forum where a tribe may be sued under the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1301. This lawsuit is not based on the ICRA nor could it be. The tribe exercises federal criminal authority contracted from the federal government, therefore the U.S. Constitution would apply.

Even if defendant Reed was tribal official, and the sovereign immunity of a tribal official were co-extensive with the tribe, it was never the intent of Congress or the courts to deny tribal citizens a forum to redress for grievances. Santa Clara Pueblo v. Martinez, 98 S.Ct. 1670 (1978), Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980).

Dry Creek Lodge carves out a narrowly construed exception to sovereign immunity of tribes set out in Santa Clara Pueblo. The plaintiffs in Dry Creek Lodge were non-Indians and had made an actual attempt to pursue a remedy in the tribal forum, but access was denied, as the 10th Circuit pointed out in White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984). Plaintiff Dry sought Choctaw CFR Court redress on behalf of his client, Scott Kayla Morrison, in an attempt to obtain the Choctaw voter registration list, and attempted to seek redress for his client, Kobi Russ, as a victim of then-chief Hollis Roberts' sexual assaults. The Choctaw CFR Court, in Morrison v. Choctaw Nation, denied her access and restricted access for future litigation on any matter by its decision. The Choctaw Council changed the statute of limitations to foreclose the courts to Ms. Russ. This situation comes directly under the exception to sovereign immunity of a tribe carved out in Dry Creek Lodge.

Defendant Reed is the director of the Choctaw Nation law enforcement program. As director, she directed Choctaw Nation police on September 4, 1995. As evidenced in the video tape, Reed instructed Chief of Choctaw Nation Police Denison to provide Reed assistance with the arrest of Plaintiff Burlison and acted as an investigator in instructing Denison who had literature. Defendant Reed herself accosted Plaintiff Burlison and physically turned off the shutter lense of Burlison's camera. Even though Reed was attired in street clothes, her actions, coupled with the question to Burlison, "Do you want to go to jail?" would lead Burlison to believe she was a police officer with the authority and capacity to take Burlison to jail. Griffin v. Maryland, 378 U.S. 130, 12 L.Ed.2d 754 (1964). Officer Bill Barrow came to the assistance of Defendant Reed and handcuffed Plaintiff Burlison after Reed had requested assistance from Chief Choctaw Naton of Police Denison. Defendant Reed obviously had the capacity and authority to investigate crimes and arrest those she believed to have committed a crime. Id. at 135, Lusby v. T.G.&Y. Stores, Inc., 749 F.2d 1423, 1429 (10th Cir. Okla. 1984).

Defendant Reed observed an unnamed individual "in a purple hat" in possession of unidentified literature, and informed Chief Choctaw Nation of Police Denison of such possession. Defendant Reed acted as a Choctaw Nation police officer as evidenced by these actions. She was not an innocent observer in these arrests. Defendant Reed was an active participant, acting pursuant to federal criminal jurisdiction contracted from the federal government.

Respectfully submitted,

_________________________
SCOTT KAYLA MORRISON, OBA #017323
Attorney for Plaintiffs
103 _ West Main
Post Office Box 637
Wilburton, OK 74578
(918) 465-5033

On the ____ day of July, 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 Plaintiffs' Response to Defendant Kim Reed's Motion to Dismiss to the following:

Peter Bernhardt Eric Janzen
Assistant U.S. Attorney W.G. "Gil" Steidley, Jr.
333 W. Fourth Street, Ste. 3460 Steidley & Neal
Tulsa, OK 74103 P.O. Box 1165
McAlester, Oklahoma 74502

Alison Cave
Steidley & Neal
PO Box 1165
McAlester, OK 74502

_________________________________
Scott K. Morrison