Case No. CIV-97-113-B

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

Plaintiffs,

v.

UNITED STATES OF AMERICA; 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 Suggestion of Lack of Subject Matter Jurisdiction and Motion to Dismiss filed by Defendant United States of America filed November 18, 1998 (Docket Entry #158). 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 Court related in detail Plaintiffs' factual allegations which form the basis for this action in the Orders entered September 30, 1998. As a result, no useful purpose is served by reiterated the content of those Orders in this decision. Rather, those Orders and the general factual allegations contained in them are incorporated by reference in this Order as if fully set forth. Only the claims contained in Plaintiffs' Amended Complaint which are specific to the parties for whom the United States has been substituted will be set out in detail. Those parties who have not previously been dismissed from this case are Hoppy Denison, Mike Russell, Steven Flowers, Bill Barrow, and Chris Welch. The specific factual allegations against these individuals derived from the Amended Complaint are as follows:

Count IV

Plaintiff Douglas G. Dry ("Dry") contends that Hoppy Denison,1 Mike Russell,2 Steven Flowers3 and others "deliberately, intentionally and maliciously, committed against (Dry], an assault and battery, unlawful detention, false imprisonment, and wrongful arrest." Dry brings this claim under the Federal Tort Claims Act.

Count X

Plaintiff Juanita McConnell ("McConnell") also brings a claim pursuant to the Federal Tort Claims Act which mirrors Dry's claim contained in Count IV. However, the allegations are brought only against Bill Barrows,4 Chris Welch5 and others.

Count XIV

Plaintiff Rosie Burlison ("Burlison") asserts the same claims under the Federal Tort Claims Act as are included in Counts IV and X, except that the only named individual against whom the claims are made and who remains in this case is Bill Barrow.

In its Motion, the United States contends that the officials implicated by Plaintiffs' allegations and claims were acting pursuant to tribal law in the actions that they took. As such, the United States enjoys sovereign immunity in regard to any tort committed by a law enforcement officer while enforcing tribal law and not federal law. Plaintiff respond that "confusion" exists in this District in regard to whether Plaintiffs were being charged under federal or tribal law, since this Court dismissed a writ of habeas corpus brought by Dry because Plaintiffs were not in custody as required by the habeas corpus laws. Further, Plaintiffs contend that the officers were exercising federal jurisdiction in the action that they took against Plaintiffs. Plaintiffs assert that the Indian Civil Rights Act delegated federal criminal jurisdiction to the Indian tribes. Finally, Plaintiffs argue that the United States previously admitted that the Choctaw Nation was exercising federal criminal jurisdiction over Plaintiffs in an unrelated case.

The United States seeks dismissal under Fed.R.Civ.P.12(b)(1) Motions made under this section of Rule 12(b) is 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.

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.

Under the Federal Tort Claims Act, the United States and its agents do not waive sovereign immunity in a suit based in tort, unless the official who allegedly commits that tort is an investigative or law enforcement officer of the United States Government. 28 U.S.C. § 2680(h) . An "investigative or law enforcement officer" is defined as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." Id. If the law enforcement officers in this case did not act pursuant to Federal law specifically giving them the authority required by § 2680(h), they were not acting as law enforcement officers as defined by the Federal Tort Claims Act, which provides for the waiver of the United States' sovereign immunity. Concomitantly, if the law enforcement officers were not acting to enforce federal law, sovereign immunity is not waived by the United States and this Court does not possess jurisdiction over the asserted tort claims. Ewell v. United States, 776 F.2d 246, 248 (10th Cir. 1985) ("The terms of the government's consent to be sued define the court's jurisdiction.")

In Orders entered September 30, 1998, this Court determined that the law enforcement officers who arrested Plaintiffs were exercising tribal criminal jurisdiction which the Choctaw Nation inherently possesses. Based upon the legal authorities and reasoning set forth in those Orders, this Court maintains that the law enforcement officers for whom the United States has been substituted were also acting under tribal jurisdiction and not federal law, thereby placing their actions outside of the limited exception to the:: sovereign immunity possessed by the United States as established by the Federal Tort Claims Act. Consequently, Plaintiffs cannot pursue these tort claims.

Plaintiffs arguments to the contrary bear little fruit. The fact that another judge in this District found that Dry was not in custody and could not, therefore, seek habeas corpus relief is of no moment to the decision made in this case. The decision of the District Court in that case, denying habeas corpus relief has been reversed by the Tenth Circuit Court of Appeals and is currently awaiting a decision on certiorari before the United States Supreme Court. Moreover, the relief sought in that case was uniquely federal in nature - habeas corpus relief. The issue of federal versus tribal jurisdiction was not before the Court. Plaintiffs attempt to glean an issue of jurisdiction from the minute order entered in that case which simply does not exist.

Additionally, Plaintiffs cite to the case of Means v. Northern Cheyenne Tribal Court, 154 F.3d 941 (9th Cir. 1998) as authority for the proposition that the jurisdiction exercised by the law enforcement officers in this case was delegated federal jurisdiction. Quite simply, Plaintiffs misapply the holding in Means. The question posed to the court in Means was whether the delegation of jurisdiction to tribal courts over non-member Indians contained in the 1990 amendments to the Indian Civil Rights Act could be retroactively applied. The Ninth Circuit determined that they could not and in so doing concluded that Congress could not state that a court "always" had jurisdiction over non-member Indians, effectively legislating the retroactivity of a jurisdictional grant. Id. at 946. This holding in no way states that a law enforcement officer is exercising tribal jurisdiction under the circumstances presented by this case. Further, the decision concerned non-member Indians. Plaintiffs are admittedly "citizens of the Choctaw Nation."6

Finally, Plaintiffs once again argue that the United States admitted in another case that law enforcement officers were exercising federal law at the time of their actions. The United States may not grant jurisdiction to this Court through an admission. Only Congress and the United States Constitution may so act. Thus, this argument is without substance.

IT IS THEREFORE ORDERED that the United States' Motion to Dismiss filed November 18, 1998 (Docket Entry #158) is hereby GRANTED. Accordingly, Counts IV, X, and XIV asserted against the United States, as substituted for Hoppy Denison, Mike Russell, Steven Flowers, Bill Barrow, and Chris Welch, are hereby DISMISSED.

IT IS SO ORDERED this 4th day of August, 1999.

1 Denison is identified in the Amended Complaint as the Chief of Tribal Police for the Choctaw Nation at all times relevant to this action. (back)

2 Russell is identified in the Amended Complaint as a Tribal Police Officer with the Choctaw Nation at all times relevant to this action. (back)

3 Flowers is identified in the Amended Complaint as a Tribal Police Officer with the Choctaw Nation at all times relevant to this action. (back)

4 Barrow is identified in the Amended Complaint as a Tribal Police Officer with the Choctaw Nation at all times relevant to this action. (back)

5 Welch is identified in the Amended Complaint as a Tribal Police Officer with the Choctaw Nation at all times relevant to this action. (back)

6 See, Amended Complaint filed April 23, 1997 at para. 4-6. (back)