No. CIV-97-113-B

DOUGLAS G. DRY, et al.,

Plaintiffs,
vs.

UNITED STATES OF AMERICA, et. al.

Defendants.

COMES NOW the Plaintiffs and answers USA's Brief and in support of will assert the following:

1. There seems to be confusion within the U.S. District Court for the Eastern District of whether the Plaintiffs were being criminally charged for federal or tribal offenses. In Dry v. Choctaw CFR Court, Case No. CIV-98-011-S, the district court dismissed the writ of habeas corpus due to Plaintiffs here not being in custody pursuant to the federal habeas corpus statute, not the Indian Civil Rights Act which would apply to the Choctaw Nation exercising its inherent criminal jurisdiction. This decision is currently on appeal to the 10th Circuit Court of Appeals and oral arguments are schedule for January 21, 1999.

2. Defendants were federal officers. In USA v. Young, 85 F.3d 334 (8th Cir. 1996), the court held that a tribal police officer was a federal officer pursuant to a Public Law 93-638 contract with the tribe. The court stated:

"In addition, 25 USC SS 2804(a) provides that the Bureau of Indian Affairs of the Interior Department may enter into an agreement for the use of tribal personnel to enforce federal or trial law. And, under 25 USC SS 2804(f), such persons, though not otherwise federal employees, are employees of the Department of Interior for purposes of SS 111 of Title 18, when acting under authority granted by the Secretary under 25 USC SS 2804(A)"

Id. at 335. A tribal police officer may be considered a federal officer in certain situations. The arrests of September 4, 1996, were performed as federal officers pursuant to a PL 93-638 contract and a cross-deputization agreement.

3. Criminal jurisdiction exercised by the Choctaw Nation was delegated federal jurisdiction, 25 USC Section 1301. In Means v. Northern Cheyenne Tribal Court, 154 F.3d. 941 (9th Cir. 1997), the 9th Circuit dealt with the 1990 Amendments to the Indian Civil Rights Act. The court stated:

"Thus regardless of Congress' intent to declare that tribes always had the inherent authority to declare that tribes always had the inherent authority to try non-member Indians, that simply cannot be what the amendment's accomplished. The only way to treat the 1990 ICRA amendments is as an affirmative delegation of jurisdiction, which may or may not apply retroactively, which did not exist prior to 1990."

"No matter how strongly Congress intended for us to 'view the amendments as nullifying Duro and reinstating the criminal jurisdiction of Indian tribes over non-member Indians so that it forms an unbroken line, extending back into history,' Mousseaux v. US Comm'r of Indian Affairs, 806 F.Supp. 1433, 1443 (D.S.D. 1992), we cannot do so. The 1990 amendments must be treated as an affirmative delegation of power,..." Id.

The court, in its decisions of September 30, 1998, found that the 1990 ICRA amendments reaffirmed inherent tribal criminal jurisdiction, and absent an act of Congress, the officers were tribal, regardless of the Choctaw Nation constitution. However, as decided in the Means case, the 1990 ICRA amendment is the federal act delegating criminal authority. The Choctaw Nation officers and employees were acting pursuant to federal criminal jurisdiction delegated by Congress in 25 USC Section 1301. These officers are federal officers for purposes of the Federal Torts Claims Act.

Apparently the U.S. Attorney's Office for the Eastern District, which normally represents the area of the Choctaw Nation, has already adopted this logic. In Burlison v. City of Atoka, Case No. CIV 96-616-S, U.S. District Court, Eastern District of Oklahoma, the U.S. Attorney admitted the Choctaw Nation was exercising federal criminal jursidiction in Admission No. 3
Wherefore, the Defendants' suggestion of lack of subject matter jurisdiction must be denied.

Respectfully submitted,

________________________________
SCOTT KAYLA MORRISON OBA#017323
P.O. Box 272
Wilburton, Oklahoma 74578
(918) 465-2912
Attorney for Plaintiffs

On the ____ day of January, 1999, I certify that I placed in the U.S. Mail, first class postage pre-paid a true and correct of the above and foregoing 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