IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

No. CIV-98-011 -S

DOUGLAS G. DRY, et al.,
Petitioners,

v.

CHOCTAW CFR COURT, et al.,
Respondents.

ROBERT L. RABON #13523

RABON, WOLF & RABON

402 E. Jackson P.O. Box 726 Hugo, OK 74743

(580) 326-6427

TABLE OF AUTHORITIES

ARGUMENT AND AUTHORITIES...............................................................................5

1. PETITIONERS HAVE FAILED TO EXHAUST THEIR TRIBAL
REMEDIES PRIOR TO THEIR FILING AN APPLICATION FOR WRIT OF HABEAS CORPUS.

ATTACHMENTS ...................................................................................................

CONCLUSION........................................................................................................8

CERTIFICATE OF MAILING......................................................................................8

Atkins v. Michigan, 644 F.2d. 543, 64 7 (6th Cir.) 6

Bivens v. Six Unknown Named Agents, 403 U. S. 388 (1971),
42 U.S.C. § 1983 (1994).....................................................................................4

Brown v. Estelle, 530 F. 2d 1280, 1283 (6th Cir. 1976),
cert denied, 452 U.S. 964,
10 1 S. Ct 3115, 69 L. Ed 2d 9 75 (198 1)...........................................................6

Capps v. Sullivan, 13 F. 3rd 350, 353--54 (1Oth cir. 1993)...................................5

Dickerson, 816 F.2d at 225; see also Ex parte Royall,
117 U. S. 241, 250-54, 6 S. Ct. 734, 739-4 1,
29 L.Ed. 868 (1886)..........................................................................................15

Necklace v. Tribal Court of Three Affiliated Tribes,
554F. 2d 845 (8th Cir. 1977)...............................................................................7

Wetsit v. Statue 44 F.3rd 823, 826 (911 cir. 1995).............................................5

25 U.S.C. § 1303 (1994) ....................................................................................1

28 U.S.C. §2241 (1994) .....................................................................................1

25 C.F.R. § (1998)..............................................................................................1

25 U.S.C. §1302(7)(1994)..................................................................................2

APPENDIX A-K-2) attachments

DRY, et al,

Petitioners,

VS.

CHOCTAW CFR COURT, et al,

Respondents.

No. CIV 98-011 -S

Procedurally, the instant case comes before this Court following a Court of Appeals' reversal and remand of this Court's dismissal of petitioners' petitions for habeas corpus, the dismissals having been based on the ground that respondents were not under "detention" within the meaning of Title 11, Section 203 of the Indian Civil Rights Act of 1968, 25 U.S.C. § 1303 (1994), and/or "in custody" within the meaning of the general federal habeas corpus statute, 28 U.S.C. § 2241 (1994).

Respondents herein are the Court of Indian 0ffenses of the Choctaw Nation of Oklahoma1 and the Magistrate of that Court. Petitioner Dry is an attorney and a member of the Choctaw Nation of Oklahoma; petitioners Burlison and McConnell are also members of the Choctaw Nation of Oklahoma.

On September 4, 1995, petitioners were arrested during an altercation between them and tribal police officers2 during the Choctaw Nation's Labor Day Festival on tribal lands near Tuskahoma, Oklahoma. Various petitioners stand charged in the Court of Indian 0ffenses with a number of tribal-law misdemeanor violations, including Disturbing the Peace, Disturbance of a Parade, Assault on a Police Officer, Attempting to Intimidate an Officer, and Resisting Arrest.3 (For reasons that will become apparent, those charges have yet to come to trial.) On arraignment later on September 4, 1995, each petitioner was released, without condition, on his or her own recognizance. Appendices B through D.

By Motion to the Court of Indian 0ffenses, petitioners challenged its criminal jurisdiction over them, urging that by rejecting a proposed 1983 amendment to the Choctaw Constitution that would have provided the Tribal Court of the Choctaw Nation (a tribunal established be the Choctaw Constitution, and occasionally known colloquially as the "Constitutional Court"4) with plenary civil and criminal jurisdiction, the Nation's voters had stripped the Nation of all criminal jurisdiction over its members. While the Motion to Dismiss was pending before the Court of Indian 0ffenses, various tribal officials and citizens sought declaratory relief (inter alia) from the Tribal [Constitutional] Court, seeking a declaration that the Nation had not divested itself of criminal jurisdiction over tribal members, and that the tribal legislation pursuant to which the Nation had contracted with the United States for the operation of the Court of Indian 0ffenses of the Choctaw Nation (and the Appellate Division of that Court)5 was consistent with the Choctaw Constitution. The Tribal [Constitutional] Court granted the requested relief on December 3, 1996, Appendix G, and Petitioners' Motions to Dismiss the criminal complaints were denied by the Court of Indian 0ffenses on January 24, 1997, Appendix H.

Rather than proceeding to trial, petitioners pursued a far-flung litigation strategy in an attempt to evade trial on the pending criminal charges. One prong of that strategy (which remains incomprehensible to respondents) took the form of an attempt to secure a Writ of Prohibition from the Appellate Division of the Court of Indian 0ffenses for the Chickasaw Nation; unsurprisingly, that Court denied jurisdiction over the matter. Appendix 1.

A second prong of that strategy involved a tribal-constitutional-law-premised state-court suit brought by petitioner Burlison's husband (represented by Petitioner Dry as counsel) against the Governor of Oklahoma, four Oklahoma municipalities (and their police departments), three Oklahoma counties (and their sheriff's departments), the Choctaw Nation, and the Bureau of Indian Affairs. See Appendix J. That challenge, too, was unsuccessful, with the Oklahoma district court, inter alia, granting comity to the decision of the Tribal [Constitutional] Court interpreting the Tribe's own constitution. That decision was then appealed to the Oklahoma Supreme Court. (See Appendix I reproducing decision of Oklahoma Court of Civil Appeals affirming both the district court's conclusion and its rationale).

The third prong of petitioners' strategy manifested itself in a seventeen-count federal-court suit (based, inter alia, on Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and 42 U.S.C. §1983 (1994)) brought by the instant petitioners against the United States of America, thirty federal and tribal officials (reaching up to the Secretary of the Interior), and two Oklahoma municipalities, once again ultimately based on their by-now oft-repudiated tribal-constitutional-law-based theory. Once again, that theory was rejected, with every count of the complaint being dismissed against every defendant (in every capacity) who requested dismissal at the Rule 12 stage.6

Having by this point failed to secure relief in lawsuits in the courts of the United States, the State of Oklahoma, and two Indian tribes against the United States of America, the Bureau of Indian Affairs, three Oklahoma municipalities, six Oklahoma counties, and thirty-one federal, state, tribal, and municipal officials (including the Governor of Oklahoma and a member of the President's Cabinet) prior to trial on the pending tribal misdemeanor charges (as to which they were released without condition, on their own recognizance), petitioners sought federal habeas corpus
relief.7

1. PETITIONERS HAVE FAILED TO EXHAUST THEIR TRIBAL REMEDIES PRIOR TO THEIR FILING AN APPLICATION FOR WRIT OF HABEAS CORPUS.

The Court of Appeals decision remanded this case back to the district court for further proceedings- Specifically, the Court directed this Court [to] consider, in the first instance, whether petitioners have sufficiently exhausted their tribal remedies, citing Capps v. Sullivan, 13 F. 3rd 350, 353-54 (10th Cir. 1993) for a discussion of the exhaustion requirements for §2241 and Wetsit v. Statue 44 F.3rd 823, 826 (9th Cir. 995) which also holds that petitioners must exhaust tribal remedies before filing petition for writ of habeas corpus.

In Capps the Court held that for purpose of §2241 petitions, "he (Capps] must also satisfy the exhaustion requirements, citing footnote 2 which reads "no statutory exhaustion required applies to §2241, but case law holds:

"that although section 2241 establishes jurisdiction in the federal court to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner." Dickerson, 816 F.2d at 225; see also Ex Parte Royall, 117 U.S. 241, 250-54, 6 S.Ct. 734, 739-41, 29 L.Ed. 868 (1886).

More importantly, the Court in Capps held that:

" [An] attempt to dismiss an indictment or otherwise prevent a prosecution'... is normally not attainable by way of pretrial habeas Corpus: but an attempt to force the state to go to trial may be made prior to trial, although state remedies must still be exhausted." emphasis ours Atkins v. Michigan, 644 F.2d. 543, 547 (6th Cir.) (citing Brown v. Estelle, 530 F.2d 1280, 1283 (5th Cir. 1976), cert denied, 452 U.S. 964, 101 S.Ct. 3115, 69 L.Ed 2d 975 (1981);

In the present case, the petitioners have yet to stand trial on the pending charges. The bottom line is that in the present case, petitioners are attempting to use a writ of habeas corpus to prevent their prosecution.

In Wetsit the petitioner was charged in the Fort Peck Tribal Court with manslaughter. Just as in the present case, her motion to dismiss the charge was denied. On October 21, 1993, petitioner was convicted of the crime and sentenced to one year of incarceration, fined $2,500.00 and ordered to participate in mental health treatment and a domestic abuse program. She did not appeal her conviction.

Wetsit, who had previously been indicted, tried and acquitted in Federal District Court for the same offense brought an action seeking habeas corpus under the Indian Civil Rights Act, 25 U.S.C. §1303. Wetsit argued that the federal courts have exclusive jurisdiction of manslaughter as one of the crimes enumerated in the major crimes act and therefore the tribal court lacked jurisdiction. The District Court agreed with the tribe's position that out of comity, the habeas corpus petition should be dismissed because Wetsit failed to exhaust her remedies when she did not appeal the tribal court conviction. On appeal, the Court of Appeal's affirmed the decision of the District Court for the reasons stated above. In the present case, the petitioners have not yet gone to trial and have not been convicted of the pending charges. Court Rules of the Choctaw Nation's Court of Indian 0ffenses are replete with not only appellate remedies but clearly, We stands for the proposition that out of comity, a Federal District Court should obtain form exercising habeas jurisdiction until after a individual has been convicted and exhausted his/her tribal remedies by appealing the conviction to the Court of Indian Appeals. See also Necklace v. Tribal Court of Three Affiliated Tribes,
554 F.2d 845 (8th Cir. 1977) Generally as a matter of comity, tribal remedies must
ordinarily be exhausted before a claim is assorted in Federal Court under 25 U.S.C.S.
111303.
Notwithstanding the overriding issues of comity set forth in Wetsit the
Petitioners in the present case have had a multitude of pretrial remedies which they have simply ignored. The current Court Rules of the Choctaw Nation contain a
provision that sets out the procedure for individuals seeking habeas corpus relief. Rule1.20 provides:

Rule 1.20 Habeas Corpus.

a. Application for the writ shall be made by petition, signed and verified by the plaintiff or by some person in this behalf, and shall specify:

1. By whom the person in whose behalf the writ is applied for is restrained of his liberty, and the place where, naming all parties, if they are known, or describing them, if they are not known.

2. The cause or pretense of the restraint, according to the best of
knowledge and belief of the applicant.
3. If the restraint be alleged to be illegal, in what the illegality consists.
c. Writs of habeas corpus may be granted by any agency court in term time, or by a Judge of any such court, either in term of vacation; and upon application the writ shall be granted without delay.

For the reasons set forth above, petitioners, have filed to exhaust their tribal remedies and as such, are not entitled to habeas corpus relief.

RABON, WOLF & RABON
402 E. Jackson
P.O. Box 726
Hugo, OK 74743
(580) 326-6427

Attorney for Petitioners

1. Courts of Indian 0ffenses are sometimes colloquially referred to as "CFR courts," since the authority for their establishment is found in 25 C.F.R. pt. 11 (1998). (back)

2. This Court will not be surprised to learn that the facts surrounding that altercation are disputed, but the competing versions of that incident are irrelevant for purposes of this Brief.(back)

3. The penalty for conviction on any of those charges are limited by federal law to one year's imprisonment and/or a $5000 fine. 25 U.S.C. § 1302(7) (1994). (Appendix A) (back)

4. See Appendix E (reproducing Article XIII of The Choctaw Nation's Constitution, which establishes the jurisdiction of that Court). (back)

5. See Appendix F (reproducing that legislation). (back)

6. The United States District Court for the Eastern District of Oklahoma, effectuated that result in seven Orders filed September 30, 1998 in the case styled Dry, et al. V. United States of America, et al. CIV-97-113-B. Since those opinions and Orders, which are somewhat lengthy, are parallel in all material respects, they do not appear in Respondents Appendix to this Brief. (back)

7. Demonstrating the patience of Job, the Court of Indian 0ffenses has stayed proceedings pending conclusion of the welter of state-court and federal-court litigation. (back)

I hereby certify that on this 28th day of February, 2000, I placed in first class U.S. mail, postage prepaid a true and correct copy of the above and foregoing to Scott Kayla Morrison, P.O. Box 518, Clayton, OK 74536.