Case No. CIV-97-113-B

DOUGLAS G. DRY; JUANITA McCONNELL;
and ROSIE BURLISON,

Plaintiffs,

V.

UNITED STATES OF AMERICA; BRUCE BABBITT, in his official capacity as Secretary of Interior; ADA E. DEERE, in her official capacity as Assistant Secretary of Interior for Indian Affairs; JIM FIELDS, in his official capacity as the successor Muskogee Area BIA Director; PERRY PROCTOR, in both his official and individual capacities; DENNIS SPRINGWATER, in both his official and individual capacities; KAREN KETCHER, in both her official and individual capacities; CURTIS WILSON, in his official capacity as the BIA Contracts Officer; LARRY MINGS, in both his official and individual capacities; BOB RABON, in both his official and individual capacities; ROBERT L. RABON, in both his official and individual capacities; KIM REED, in both her official and individual capacities; HOPPY DENISON, in both his official and individual capacities; BILL BARROW, in both his official and individual capacities; MIKE RUSSELL, in both his official and individual capacities; STEVEN FLOWERS, in both his official and individual capacities; CHRIS WELCH, in both his official and individual capacities; KENNETH JOHNSON, in both his official and individual capacities; BLAKE JOHNICO, in both his official and individual capacities; CITY OF TAHLEQUAH; JACK ENGLAND, in both his official and individual capacities; MALCOMB WADE, in both his official and individual capacities; NIKY HIBDON, in both her official and individual capacities; LLOYD JAMES, in both his official and individual capacities; JOHN WHEAT, in both his official and individual capacities; NAOMI O'DANIELS, in both her official and individual capacities; CITY OF CLAYTON; TERRY BELL, in both his official and individual capacities; ROWLAND HALL, in both his official and individual capacities; MIKE VAN HORN, in both his official and individual capacities; DARREL KIRKES, in both his official and individual capacities; REBECCA JOHNSON, in both her official and individual capacities; and JIMMY LONG, in both his official and individual capacities,

Defendants.

This matter comes before the Court on the Motion to Dismiss filed by Defendant Robert L. Rabon on June 19, 1997 (Docket Entry #100). A timely response and a timely reply were filed to the Motion. Upon review and consideration of these pleadings, this Court renders the ruling reflected herein.

This case arises from events which allegedly occurred on September 4, 1995, when Plaintiffs attended Labor Day festivities at Tuskahoma, Oklahoma. Plaintiffs allege that they were forcibly restrained and arrested for possessing and distributing "items of literature which expressed opinions concerning matters of public concern."

Plaintiffs' Amended Complaint states the following specific factual allegations against Defendant Robert L. Rabon ("R. Rabon"):

Count I

Plaintiff Douglas G. Dry ("Dry") contends that he was arrestedand incarcerated at the Talihina Police Department while in possession of literature at the Labor Day event. Dry alleges that Defendant Bob Rabon and R. Rabon "made statements in their capacity as tribal officials that Plaintiff Dry had been arrested for passing out literature. Dry also asserts that on or about September 14, 1995, he was "wrongfully and maliciously charged" by R. Rabon, acting as the Prosecutor for the Choctaw Nation Court of Indian 0ffenses with seven offenses. Dry concludes that he is entitled to damages as result of this conduct.

Count IV

In this claim brought under the Federal Tort Claims Act, Dry contends that R. Rabon, "deliberately and intentionally committed and continues to commit malicious prosecution and abuse of process" against him through the criminal prosecution commenced in the Court of Indian 0ffenses of the Choctaw Nation. Again, Dry asserts that he is entitled to monetary damages as a result of R. Rabon's actions.

Count VII

Plaintiff Juanita McConnell ("McConnell") alleges that on or about September 4, 1995, she was attending the Labor Day festivities at Tuskahoma, Oklahoma and had in her possession items of literature which expressed opinions concerning matters of public opinion. Like Dry, McConnell asserts that Defendant Bob Rabon and R. Rabon "made statements in their capacity as tribal officials that Plaintiff McConnell had been arrested for passing out . . . literature . . ." McConnell also contends that she was "wrongfully and maliciously" charged with five offenses by R. Rabon as a prosecutor for the Court of Indian Offenses on September 14, 1995, stemming from her arrest. McConnell concludes that she is entitled to damages as result of this conduct.

Count X

McConnell also brings a claim pursuant to the Federal Tort Claims Act against R. Rabon for "deliberately and intentionally" engaging in maliciously prosecution and abuse of process and seeks damages for this action.

Count XI

Plaintiff Rosie Burlison ("Burlison") asserts that she too attended the same festivities and had literature in her possession. Similar to the other named Plaintiffs in this action, Burlison alleges that Defendant Bob Rabon and R. Rabon, ""made statements in his (sic) capacity as tribal officials that [Burlison) had been arrested for passing out . . . literature . . . " Burlison also contends that R. Rabon "'wrongfully and maliciously" charged her with five offenses in the Court of Indian Offenses for the actions for which she was arrested.

Count XIV

Under this claim, Burlison asserts a federal tort claim for malicious prosecution and abuse of process against R. Rabon as a result of the charges he filed in the Court of Criminal Offenses of the Choctaw Nation.

As an initial matter, R. Rabon recognizes that the United States has been substituted for him on the claim brought pursuant to the Federal Tort Claims Act.1 As a result, his Motion does not address this claim. The United States has filed a Motion to Dismiss in relation to this claim. Therefore, the matter will be addressed in the Order on that Motion and not herein.

Through the pending Motion, R. Rabon seeks dismissal of all claims asserted against him, with the exception of those based in the Federal Tort Claims Act. R. Rabon contends that he enjoys absolute prosecutorial immunity in relation to any actions that he may have taken as a tribal prosecutor. Further, R. Rabon asserts that making statements as alleged in the Amended Complaint does not give rise to a claim in these proceedings. R. Rabon also contends that Plaintiffs cannot state a claim for either relief under the Indian Civil Rights Act or Bivens. Finally, R. Rabon argues that Plaintiffs have failed to exhaust all available remedies in tribal court, since they admit that the criminal charges against them remain pending in that court.

R. Rabon specifically states that he seeks dismissal under Fed. R. Civ. P. 12 (b) (6) . Typically, an action should not be dismissed under Rule 12 (b) (6) of the Federal Rules of Civil Procedure unless "the plaintiff can prove no set of facts in support of the claims that would entitle him to relief." Reynolds v. School District No. 1. Denver. Colorado, 69 F.3d 1523, 1536 (10th Cir. 1995), citing Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir.,; 1994). In reviewing the sufficiency of the complaint, a court "presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) citing Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991) . The "[g]ranting [of] defendant's motion to dismiss is a harsh remedy which must be cautiously studied . . . to protect the interests of justice." Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10th Cir. 1995) . "The threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low. " Quality Foods v. Latin American Agribusiness Development, 711 F.2d 989, 995 (llth Cir. 1983) . Generally, a request for dismissal for the failure to state a claim "is viewed with disfavor, and is rarely granted." Lone Star Industries. Inc. v. Horman Family Trust, 960 F.2d 917, 920 (10th Cir. 1992) citing Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981). If the evaluation of the request for Rule 12(b)(6) relief requires consideration of matters outside of the initial pleadings, the court is required to convert the motion to one under Rule 56(c) for summary judgment and permit the submission of evidence on the matters asserted. Fed. R. Civ. P. 12(b)(6).

While R. Rabon only specifically identifies Fed. R. Civ. P. 12(b) (6) as a basis for proceeding in his Motion, it is apparent that his Motion addresses this Court's jurisdiction to proceed in this case. Such allegations implicate Fed. R. Civ. P. 12(b)(1) and (2), which address dismissal for lack of subject matter and personal jurisdiction. Motions made under these sections of Rule 12(b) (1) are classified under two forms: (1) "a facial attack on the complaint's allegations as to subject matter jurisdiction (which] questions the sufficiency of the complaint" and (2) a "challenge [to] the facts upon which subject matter jurisdiction depends." Holt v. United States, 46 F.3d 1000, 1002-3 (10th Cir. 1995) (citations omitted). Under the former, a court must accept
the allegations in the complaint as true while under the latter, a court cannot presume the truthfulness of the complaint's factual allegations. Id. Therefore, when the motion represents a
challenge to the jurisdictional facts alleged in the complaint, "[a] court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12 (b) (1) ." Id. at 1003. This does not result in the conversion of the motion to one for summary judgment under Fed. R. Civ. P. 56(c). To the extent that examination of the facts are necessary to determine this Court's jurisdiction, all factual disputes related to jurisdiction will permit this Court to review the attachments provided with the pleadings and this Court will indicate herein should reliance upon evidence outside of the initial pleadings be necessary. Otherwise,
this Court will limit its examination to the pleadings themselves under the scrutiny required by the controlling legal authorities.

The paramount argument that this Court must initially consider is whether R. Rabon acted under color of federal law, as a prosecutor for the Choctaw Court of Indian 0ffenses as alleged in the Amended Complaint, such that jurisdiction is conferred upon this Court in order to even entertain this action. In order to state a Bivens claim. 2 Plaintiffs "must allege circumstances sufficient to characterize [R. Rabon] as [a] federal actor ." Romero v. Peterson, 930 F.2d 1502, 1506 (10th Cir. 1991) citing Reuber v. United States, 750 F.2d 1039, 1056-57 (D.C. Cir. 1984). Thus, this Court need only determine whether R. Rabon was acting under color of federal law and, if he was not acting pursuant to federal law, it is not essential to the outcome of this case for this Court to determine under what law that R. Rabon acted. So long as it was not federal law, a Bivens action cannot be maintained. Indeed, R. Rabon may have acted under color of no recognized legal authority at all.

Plaintiffs base their contention that R. Rabon was acting pursuant to federal law upon the conclusion that neither the Choctaw Nation, generally, nor the Choctaw Court of Indian 0ffenses, specifically, possessed the necessary criminal jurisdiction to arrest and charge Plaintiffs. Plaintiffs assert that after a constitutional crisis in the mid-1980's, a referendum was held for the members of the Choctaw Nation to state whether the Nation's "tribal court's jurisdiction [would] be extended to include general civil, criminal and probate matters." The members voted not to extend the tribal court's jurisdiction as outlined in the referendum. As a result, the Choctaw Nation Constitution provides in relation to the jurisdiction of the tribal courts "[t]he Tribal Court shall have exclusive jurisdiction to decide disputes, by vote of two (2) members, arising under any provision of the Constitution or any rule or regulation enacted by the Tribal Council.3 Later, the Choctaw Nation contracted with the Bureau of Indian Affairs to provide what is commonly referred to as a "C.F.R. Court" or "'Court of Indian 0ffenses," or a system to administer justice for the Choctaw Nation.4 In the particular contract in question, the court is referred to by interlineation as the "'Tribal Judicial Court System." Because the Nation's tribal court does not possess the requisite criminal jurisdiction to consider the charges for which Plaintiffs were arrested as a result of the referendum and Choctaw Constitution, Plaintiffs reason that R. Rabon could not have been acting under color of tribal law when he performed the acts set forth in the Amended Complaint and which form the basis of this action. Consequently, Plaintiffs conclude that R. Rabon must have been acting under color of federal law, thereby placing his actions under the umbrella of protections afforded Plaintiffs by virtue of the United States Constitution and the United States Supreme Court through its ruling in Bivens.

Without question, Indian tribes are recognized as sovereign entities, with "inherent powers of a limited sovereignty" because of "[t]heir incorporation within the territory of the United States, and their acceptance of its protection . . ." United States v. Wheeler, 435 U.S. 322-23 (1978). Among the powers inherently reserved to each Indian tribe as a part of their "right to internal self-government", including the Choctaw Nation, is the ability to enforce the tribe's criminal laws against tribe members. Id. at 322 (citations omitted). This inherent attribute of tribal sovereignty may only be abrogated by specific treaty or act of Congress and was not "within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status." Ortiz-Barraza v. United States, 512 F.2d 1176, 1179 (9th Cir. 1975) citing United States V. Mazurie, 95 S.Ct. 710, 717-18 (1975) (remaining citation omitted); United States v. Wheeler, 435 U.S. at 326. As succinctly stated by a recognized authoritative treatise on Indian law, "[a]n Indian tribe may exercise a complete (criminal) jurisdiction over its members and within the limits of the reservation subordinate only to the expressed limitations of federal law." F. Cohen, Handbook of Federal Indian Law 148 (1942 ed.). Thus, this Court starts with the proposition that the Indian tribes are empowered with criminal jurisdiction over its members. 5

In order to alter this proposition, Plaintiffs must identify a treaty or act of Congress with took this inherent right away. In short, they do not. To the contrary, in response to certain rulings of the United States Supreme Court ,6 Congress amended the Indian Civil Rights Act in 1991 to make clear that the "powers of self-government" includes "the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians." 25 U.S.C. §1301(2). Further, simply because Congress has the right "to regulate the manner in which the local powers of the (Indian tribes] shall be exercised does not render such local powers federal powers arising from and created by the constitution of the United States." Talton v. Mayes, 163 U.S. 376, 384 (1896). Thus, federal court jurisdiction is not derived somehow from the fact that the Federal government provided for the establishment of Courts of Indian 0ffenses for the purpose of providing "adequate machinery for the administration of justice for Indian tribes in those areas of Indian country where tribes retain jurisdiction over Indians that is exclusive of state jurisdiction but where tribal courts have not been established to exercise that jurisdiction." 25 C.F.R. §11.100(b). The jurisdiction exercised is still tribal jurisdiction. Tillett v. Lujan, 931 F.2d 636, 640 (10th Cir. 1991). To accept Plaintiffs' proposition, members of an Indian tribe could transfer criminal jurisdiction from a tribal court to a federal court by simply voting to do so by referendum, with no congressional grant of authority. Federal jurisdiction is not so easily conferred. This Court finds that R. Rabon was not acting pursuant to federal law when he allegedly made false statements to the press, failed to adequately investigate the claims against Plaintiffs and selectively prosecuted Plaintiffs, as set forth by Plaintiffs in their response. As a result, this Court does not have the requisite jurisdiction to consider Plaintiffs' claims, given that no other basis for federal jurisdiction has been alleged.7

The only other cognizable federal claim that could be implicated by the Amended Complaint is for the violation of the Indian Civil Rights Act (the "ICRA"). However, nothing in the Amended Complaint even remotely implicates such a violation in this case. The ICRA establishes habeas corpus relief for individuals to seek redress in a federal forum in relation to orders issued by Indian courts which violate certain enumerated, fundamental rights. 25 U.S.C. §1302. As with federal habeas corpus actions, the ICRA action is commenced against the individual holding the aggrieved party. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59 (1978). Indeed, the United States Supreme Court in Santa Clara Pueblo reaffirmed the position that tribal courts are the appropriate forums "for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and nonIndians." Id. at 65 (citation omitted). Nothing in the claims stated against R. Rabon implies that Plaintiffs are entitled to the kind of relief guaranteed by the ICRA. Consequently, this Court must conclude that Plaintiffs have not stated a cognizable ICRA claim. Having found no basis in federal law for maintaining this action against R. Rabon, this Court finds that all claims should be dismissed.8

IT IS THEREFORE ORDERED that Defendant Robert L. Rabon's Motion to Dismiss filed June 19, 1997 (Docket Entry #100) is hereby GRANTED. Accordingly, Counts I, VII, and XI are hereby DISMISSED as they pertain to Defendant Robert L. Rabon.

IT IS SO ORDERED this 30th day of September, 1998.

1. The claims in reference to which the United States has been substituted for R. Rabon are Counts IV, X, and XIV. (back)

2 See, Bivens v. Six Unknown Names Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing a cause of action for federal officers violating a party's rights guaranteed by the United States Constitution.). (back)

3. See, Constitution of the Choctaw Nation of Oklahoma, Art. XIII, Sect. 1. (back)

4. Specifically, 25 C.F.R. §11.100 et seq. (back)

5 As Plaintiffs note in their Amended Complaint, they are each "a citizen of the Choctaw Nation of Oklahoma." See, Amended Complaint filed April 23, 1997 at para. 4-6. (back)

6 Specifically, the case of Duro v. Reina, 495 U.S. 676 (1990), wherein the Supreme Court found that Indian tribes did not possess inherent criminal jurisdiction over non-Indians who allegedly commit offenses contrary to Indian law. Congress, in its amendment to the Indian Civil Rights Act, included an apparent attempt to expand the definition of an "Indian" to include a person committing an offense recognized in 18 U.S.C. §1153 in Indian country, thereby presumably placing a non-Indian that commits such an offense under the criminal jurisdiction of the Indian tribal court. (back)

7 Plaintiffs also contend that, since R. Rabon is a nonIndian, the Choctaw Court of Indian 0ffenses could not entertain a civil action against him, assuming it possesses civil jurisdiction because of the prohibition contained in 25 C.F.R. §11.103(a). This Court does not reach the issue of Plaintiffs' civil forum for redress in this Order since the issue is not essential to resolving the case as it comes before this Court.

Additionally, Plaintiffs state that since R. Rabon is a federal agent, they are required to proceed under the Federal Tort Claims Act and they could not do that and meet the six-month statute of limitations for civil actions established in 1994 by the Choctaw Tribal Council. Plaintiffs assume that R. Rabon is a federal agent. By Order entered this date on the United States' Motion to Dismiss filed herein, this Court determined that R. Rabon was not an "investigative officer" such that he was subject to the Federal Tort Claims Act. (back)

8 This Court need not address the other bases for dismissal raised by R. Rabon, such as absolute prosecutorial immunity because the threshold issue of jurisdiction is dispositive. (back)