2. Summary of Defenses
(c) United States (Counts 4, 10 & 14):

(1) Lack of jurisdiction over the subject matter and the United States.

(2) Failure to state a claim upon which relief can be granted.

(3) Sovereign immunity.

(4) Plaintiffs= claims are specifically excepted from the limited waiver of the United States= sovereign immunity within the Federal Tort Claims Act (FTCA). 28 U.S.C. 2680(h).

(5) Plaintiffs= injuries and damages, if any, were actually and proximately caused by their own actions.

(6) Any acts or omissions on the part of the tribal police officers identified in Counts 4, 10 and 14 of the Amended Complaint were proper and necessary incident to their duties to make lawful arrests and did not in any way constitute negligence, assault and battery, unlawful detention, false imprisonment, or wrongful arrest, and did not in any way cause any injuries or damages to Plaintiffs.

(7) Plaintiffs unlawfully caused a disturbance, breach of peace, in violation of tribal ordinances, unlawfully resisted arrests, harassed bystanders, attempted to incite bystanders to riot, attacked tribal police officers, and refused to obey lawful orders of the officers.

(8) Any force which the tribal police officers used was necessary and reasonable under the circumstances.

(9) Counts 4, 10 and 14 against the United States must be tried to the Court and may not be tried to a jury. 28 U.S.C. ' 2402; Engle v. Mecke, 24 F.3d 133, 135 (10th Cir. 1994).

(10) To the extent that the general prayer at the conclusion of the Amended Complaint could be construed as requesting punitive damages and attorneys= fees against the United States it should be stricken, since punitive damages are not recoverable against the United States, and attorneys= fees must be deducted from any judgment for plaintiffs under the FTCA and may not be in addition thereto.

3. Stipulations

A. Jurisdiction Admitted:

United States: No. See defenses Nos. (1) through (4) above.

B. Venue Appropriate:

United States: Yes.

4. Discovery Plan

United States: If Plaintiffs seek discovery from the United States, it should be limited to matters relevant to the allegations in Counts 4, 10 and 14 of the Amended Complaint, and depositions of tribal or federal witnesses should be limited to two hours each.

7. Estimated Litigation Costs

D. United States

(1) Through discovery cutoff $ 5,000
(2) Discovery cutoff through trial $ 5,000
(3) Appeal $ 2,000
$ 12,000

GRAND TOTAL (All Parties) $ 582,000

UNITED STATES OF AMERICA

STEPHEN C. LEWIS
United States Attorney

PETER BERNHARDT, OBA #741
Special Assistant United States Attorney
333 W. Fourth St., Suite 3460
Tulsa, Oklahoma 74103-3809
(918) 581-7463

UNITED STATES OF AMERICA

STEPHEN C. LEWIS
United States Attorney

CATHRYN MCCLANAHAN, OBA #14853
Special Assistant United States Attorney
333 W. Fourth St., Suite 3460
Tulsa, Oklahoma 74103-3809
(918) 581-7463