DRY, et al,
Petitioners,

VS.

CHOCTAW CFR COURT, et al,
Respondents.

No. CIV 98-011-S

PROPOSITION I: THE CHOCTAW PEOPLE WERE GUARANTEED THEIR OWN FORM OF GOVERNMENT BY TREATY.

Under Article IV of the Treaty of Dancing Rabbit Creek of 1830, the Choctaw people were guaranteed the right to a "government of all the persons and property that may be within their limits." Treaty of Dancing Creek of 1830, 7 Stat. 333 (183 1) Exhibit 1. This treaty removed the Choctaws from their Mississippi homelands to what is now Oklahoma. Upon arrival in Doaksville, Choctaw Nation, Indian Territory, the Choctaws adopted a written constitution in 1832. The Choctaws were governed by a written constitution until statehood. The last constitution in the 19th Century adopted in 1860.

PROPOSITION II: THE CHOCTAW PEOPLE CONTINUED THEIR FORM OF GOVERNMENT IN THE TWENTIETH CENTURY.

When Oklahoma became a state, it was assumed that the Choctaw Nation's form of government was terminated, as were all tribal governments in Eastern Oklahoma. In 1974, members of the Creek Nation filed suit in the U.S. District Court for the District of Columbia to challenge this assumption. In Harjo v. Kleppe, 420 F.Supp. I 110 (D.D.C. 1976), aff'd sub non Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978), the court held that the 1866 Creek Constitution was still in effect and to be amended, a constitutional referendum must be held. A year later, members of the Choctaw and Chickasaw Nations filed the same suit in the same court before the same judge using the same attorneys. The decision in Morris v. Watt 640 F.2d. 404 (D.C. Cir. 198 1), ordered a constitutional referendum for the Choctaw people requiring a vote on the "fundamental differences" between the 1860 Choctaw Constitution and the 1979 Choctaw Constitution. 640 F.2d. at 414-5. The Choctaw people voted on eleven fundamental differences between the old and new constitutions. The third difference was "Shall the tribal court's jurisdiction be extended to include general civil, criminal, and probate matters?" Exhibit 20 to the Writ. Thenchief Hollis E. Roberts gave his views on this question to the Choctaw people. He said:

"Under the present Constitution, the Court is set up to interpret and decide disputes which involve provisions of the Constitution and laws passed by the Council. We have no business getting into the criminal and probate jurisdiction. How would we enforce criminal laws? We have no jails or means to punish people! The state and federal governments do this and I doubt that they would permit us to get involved. Likewise, the state has probate courts to settle people's estates. No attorney in Oklahoma or another state would recognize probate proceedings in our tribal court. I urge a no vote." Exhibit 2. The people voted "no" on this question. The current Choctaw Constitution was adopted July 9, 1983. Exhibit 35 to the Writ.

PROPOSITION III: THE CHOCTAW "CFR" COURT OF INDIAN OFFENSES IS UNCONSTITUTIONAL UNDER THE CHOCTAW CONSTITUTION. The Judicial Department of the Choctaw Nation is set forth in Article XIII of the 1983 Choctaw Constitution. Section I states: "The Tribal Court shall have exclusive jurisdiction to decide disputes, by vote of two (2) members, arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council." Article XIII is exactly the same as the 1979 Choctaw Constitution. Exhibit 3. With the Choctaw people denying expansion of jurisdiction of
the Choctaw Constitution to include criminal jurisdiction over them, the powers of the tribal court remained the same. The tribal administration understood that a court could not exercise criminal jurisdiction without a constitution referendum. Choctaw Council Minutes of December 8, 1990,1 show that tribal Attomey Bob Rabon informed the council that:

At this time you could have a constitutional amendment voted on by the people to expand the jurisdiction of your court because your court is very limited jurisdiction. Basically, it decides disputes arising out of provision of the constitution and enactments you pass here." The BIA was present at this meeting to discuss setting up a court system after criminal jurisdiction changed by case law in Eastern Oklahoma "Indian Country." In State v. Klindt, 782 P.2d 401 (Okla. Crim. App. 1989), With trust land found to be within the criminal jurisdiction of the tribes, the Bureau of Indian Affairs (BIA) approached the tribes to set up "provisional"' Court of Indian 0ffenses, commonly known as "CFR" Court.2

PROPOSITION IV: THE CHOCTAW CFR COURT OF INDIAN OFFENSES IS NOT LAWFULLY ESTABLISHED PURSUANT TO PROCEDURES SET FORTH IN 25 CFR PART 11.

The CFR Court established by the BIA sat first in Muskogee then transferred to Ada to provide service to both the Chickasaw and Choctaw Nations. On January 12, 199 1, the Choctaw Council passed Council Bill 40-91, to contract with the BIA for a law enforcement program. On March 9, 199 1, CB-74-91 was passed to clarify CB-40-9 1. The "intent" of the tribe was to contract for a law enforcement program only, and not a court system. The tribe intended to "remain under the protection of the BIA's provisional courts." Exhibit 4. On August 14, 1991, the Council passed Council Bill 13 8-9 1, approving a contract between the BIA and the Choctaw Nation to provide law enforcement. The Council adopted 25 CFR Part 11, with a proviso that liquor laws should not apply to any establishment owned and operated by the tribe. With that exception, 25 CFR Part I I was adopted in its entirety.

Under 25 CFR Part 11, Section 11. 100(c), federal regulations apply until "a law and order code which includes the establishment of a court system has been adopted by a tribe in accordance with its constitution and bylaws or other governing document, has become effective." Because of the constitutional limitation on criminal jurisdiction, the Choctaw Nation would be unable to establish a court system absent a constitutional referendum. The BIA could continue to operate a CFR Court, but it could not contract with the tribe to operate such a court, nor could the Council pass laws to be enforced in a CFR Court.

In addition to the constitutional prohibition against exercising criminal jurisdiction by the tribal government, there are two more problems with the Choctaw CFR Court: 1) whether it is a "tribal court" or a "CFR court" discussed in detail in the original Writ filed herein;3 and 2) what laws were in effect at the time of the arrests.

After the August 14, 1991, approval of 25 CFR Part 11, the Council passed CD-33-92 which adopted Choctaw Criminal Code. Exhibit 24 to Writ. These codes basically incorporated state laws and superceded 25 CFR Part 11. CB-50-94 adopted Choctaw Criminal Procedure Code. Exhibit 27 to the Writ. Civil procedures were adopted May 6, 1994 with CB-99-94. Exhibit 28 to the Writ. These civil procedures amended the criminal procedure portion by changing the statute of limitations With all of the changing and amending of the laws, it is difficult to tell what laws applied when and what laws apply now. If this was a BIA-operated CFR Court, 25 CFR Part I I would apply, and there would be no criminal charges.

Petitioners' counsel filed an Exhibit A to Affidavit in Support of Writ of Prohibition filed in the Court of Indian Appeals for the Muskogee Area Tribes. Exhibit 5. This document sets forth a time line of the Choctaw CFR Court and criminal jurisdiction in a summary form, and is included for the Court's information.

PROPOSITION V: IF THE CHOCTAW COURT OF INDIAN OFFENSES IS NOT CONSTITUTIONAL, THE COURT OF INDIAN APPEALS IS NOT. IN THE ALTERNATIVE, THE APPEALS COURT DOES NOT EXIST.

If the Court of Indian 0ffenses is invalid, a Court of Indian Appeals must also be invalid. There has been no grant of criminal jurisdiction by the Choctaw people to any Choctaw court. In the alternative, the Court of Indian Appeals has not been approved by the BIA, as evidenced by the Exhibit letter from Jim Fields attached to the Petitioners' Brief on Exhaustion filed herein. There is no evidence that an appeals court has been established since the filing of that brief. Even if there had been approval of the court, there was no appeals court at the filing of this Writ nor since the brief on the exhaustion issue.

The Petitioners filed a writ of prohibition in the Court of Indian Appeals (CIA), Muskogee Area Tribes, challenging the jurisdiction of the Court of Indian 0ffenses of the Choctaw Nation on July 24, 1996. On April 16, 1997, the Court issued an Order. Exhibit 6. The Court found that "Choctaw Nation's citizenry expressly rejected an amendment provision to expand the Tribal Court's jurisdiction to civil, criminal and probate matters in 1983. The Constitution has never been amended concerning the Tribal Court's jurisdiction." The Court found further that "This case contains no evidence that the Court of Indian Appeals for the Muskogee Area Tribes has ever been properly established or designated as the Appellate Court of the Choctaw Nation. Since no proper appeals court existed within the Choctaw Nation, nor within the jurisdiction of
any other CFR Court, Petitioners have exhausted what remedies were available to them. CONCLUSION:

The Choctaw CFR Court violates the Choctaw Constitution and is invalid. There is no properly constituted appeals court or an appeals court with proper jurisdiction to hear an appeal by Petitioners. The writ must be granted on its merits and a ruling entered that Petitioners have exhausted what tribal remedies are available to them.

1. Choctaw citizens are not allowed to copy council minutes. These documents are owned by the tribe. The Council minutes are attached, however, Petitioners are subject to further arrests by possessing such documents and making them public. (back)

2. These courts are established pursuant to 25 C.F.R. Part 11. (back)

3. Counts III and IV of the original Writ, with Exhibits. (back)

I hereby certify that on this 26th day of April, 2000, 1 placed in first class U.S. mail, postage prepaid a true and correct copy of the above and foregoing to Robert Rabon, Rabon, Wolfe, & Rabon, Post Office Box 726, Hugo, OK 74742.

Attachment I: 1830 Treaty

Attachment II: Statement of the Views of Chief Roberts on the 1860-1979 Treaties

Attachment III: 1979 Choctaw Constitution

Attachment IV: Tribal Council minutes amening CB040-91

Attachment V: Affidavit in Support of Writ of Prohibition

Attachment VI: Exhibit A, Writ of Prohibition

Attachment VII: Court of Indian Offfenses, Ada Ruling