CHOCTAW NATION OF OKLAHOMA,

Plaintiff,

V.

DOUGLAS DRY,
ROSIE LEE BURLISON, and
JUANITA MCCONNELL,

Defendant.

Case No. CR 95-01

Now, on this 5th day of March, 1996, the above entitled cause comes on for HEARING, before the Honorable James Wolfe sitting in and for the Court of Indian 0ffenses of the Choctaw Nation of Oklahoma.

APPEARANCES:

Mr. Robert L. Rabon, Jr.(On behalf of the Choctaw Nation)

Attorney at Law

PO Box 726 Hugo, Oklahoma 74743

Ms. Scott Kayla Morrison (On behalf of Douglas Dry, Rosie Lee Burlison, Juanita McConnell)

Attorney at Law

PO Box 637
Wilburton, Oklahoma 74578

THE COURT: Mr. Rabon, would you shut that door, please. The court
is in session in the Court of Indian Offenses of the Choctaw
Nation of Oklahoma. The Choctaw Nation of Oklahoma versus Douglas
Dry, Juanita McConnell and Rosie Lee Burlison. Are those all the
defendants, those three?

Ms. MORRISON: Yes, three.

THE COURT: I'm going to call this case as Case Number CR-95-01. I
think the arguments probably will apply to all defendants; is that correct?.

Ms. MORRISON: Yes.

THE COURT: The Choctaw Nation is represented by Robert L. Rabon.
The defendants and each of them are represented by Scott Kayla
Morrison; is that correct, ma'am?

Ms. MORRISON: Yes.

THE COURT: What is your name, ma'am?

COURT REPORTER: Jill Mabry.

THE COURT: You are the Court Reporter; is that correct?

COURT REPORTER: Yes.

THE COURT: Are you ready to proceed, Ms. Morrison?

Ms. MORRISON: Yes, I am.

THE COURT: Mr. Rabon?

Mr. RABON: Yes.

THE COURT: Ma'am, you may proceed on your Motion To Dismiss For Lack Of Subject Matter Jurisdiction, filed by you on behalf of Douglas Dry, Juanita McConnell and Rosie Lee Burlison.

Ms. MORRISON: Okay. I have a witness in the courtroom
today. I would like to call Fred Ragsdale.

THE COURT: Mr. Ragsdale, would you come up here, please,
sir.

Mr. RAGSDALE:Where do you want me to go?

THE COURT: Stand right here to be sworn and then I'll find
a place for you to sit down.

Mr. RAGSDALE: I'm just too blind to see where I'm supposed
to go.

THE COURT: Raise your right hand please.

(At this time the witness was sworn.)

THE COURT: Would you take that chair right there, please,
sir. Would you state your name, please.

Mr. RAGSDALE: My name is Fred L. Ragsdale, Jr.

THE COURT: Where do you live, sir?

Mr. RAGSDALE: I live in Corrales, New Mexico.

THE COURT: Are you employed?

Mr. RAGSDALE: I'm retired.

THE COURT: Retired from?

Mr. RAGSDALE: University of New Mexico, school of law.

THE COURT: A law school professor?

Mr. RAGSDALE: Yes.

THE COURT: You may proceed.

FRED RAGSDALE
Called as a witness on behalf of the defendants, was first
duly sworn to tell the truth, the whole truth and nothing
but the truth, testifies as follows, to-wit:

DIRECT EXAMINATION BY Ms. MORRISON:

Q. Mr. Ragsdale, could you give us a summary of your
academic background?

A. I graduated in 1970 from the University of California
at Berkley, with a degree in art/history; I graduated from
UCLA Law School in 1973; 1 worked a very short time in Legal
Services and then I joined the New Mexico law school
faculty, three years after I started I was a tenured law
professor.

Q. Could you give us a summary of your academic writings,
just law review articles or books, academic books?

A. I have written chapters in books over the years for
(inaudible) on America Indian Policy; I have written 14
law review articles dealing with Indian affairs and
different things.

THE COURT: Mr. Ragsdale, you might need to speak up a
little bit, I'm sorry.

Mr. RAGSDALE: I have written articles in the
University of New Mexico Law Journal; UCLA Law Journal;
National Indian Resources Law Journal; University of
Wyoming; University of Arizona; various chapters in
academic books. It is hard to remember, it has been a long
time.

Q. Well, that will suffice for my question. Mr. Ragsdale,
are you familiar with the Choctaw Constitution?

A.Yes, I am.

Q.How are you familiar with the constitution?

A. In 1982, late 1982 or early 1983, I'm not sure of the
exact date, Judge Richey in the Federal District Court in
Washington D.C. ordered the parties in the Choctaw and
Chickasaw cases, I think it was Morris v. Watts, I forgot
the name of the Chickasaw case, to appoint what they call
an arbitrary administer to form a special master to
conduct a series of constitutional elections in the
Choctaw Nation and Chickasaw Nation and I was the person
that the court appointed and so I spent, I don't know,
about six or seven months in Choctaw and Chickasaw Country
conducting the elections and the constitutional process
with the Choctaws.

THE COURT: When was that?

THE WITNESS: Early '83, late '82.

Q. (By Ms. Morrison) When you were going through the
constitutional revisions, do you remember any discussion
about criminal jurisdiction for the Choctaw Nation?

A. Yes, I do.

Q. What do you recall?

A. One of the difficulties that I had in taking the job in the
first place was there was the historic Choctaw Constitution, which was written in, I think in 1860, it was a fairly comprehensive
document and it was generally agreed upon that it was an
inadequate document to deal with what had happened to the Choctaw
Nation today. There had been an attempted revision of that
constitution, I believe it was in 1979, and it was thrown out in
one of the numerous litigations in the Choctaw Nation. So what I
did is I, with the help of a lot of technical people, what we
started to do was to sit down with parties involved; if I remember there were two people from the plaintiffs' case and two people
from the defense and two neutral observers and we had a committee
and we sat down and we talked and we spent, I mean literally
hundreds of hours trying to figure out what the Choctaw
Constitution should look like and we made some decisions on it and we decided that we would give, I think it was eleven specific
questions to the Choctaw People to vote on. In order to do that,
in order to do that, it required that we determine who was
eligible for voting and so we had the -- help develop an election
roll and so on. One of the difficulties at the time was that there was a case in Western Oklahoma that had said there -- that there was still Indian country but at the time there was no case in Oklahoma, in Eastern Oklahoma defining Indian country.

Q. Could you define Indian country in terms of what you are
talking about, just to make it a little bit clearer?

A. Yeah, I will try. Indian country is a complex term of art used
to describe usually the land where two things happen: One, is that an Indian tribe has jurisdiction and usually a whole separate set
of federal laws apply. For example, the Major Crimes Act, where
certain crimes occur on Indian country, federal law applies.
Indian law can be, I'm sorry, Indian country can be defined as:
One, it is clearly reservations; tends to be allotted lands; and
also it is a domestic community, an area in which there are,
Indians usually congregate. The most, classic example is the
Gallup Hospital in Gallup, New Mexico, it is on federal land but
almost everyone who is there is an Indian, federal court has held
that is Indian country. So essentially it is an area of special
jurisdiction that depends on it being some relationship with an
Indian or Indian tribe to have any meaning.

Q. O.K., Thank you. Could you go on?

A. Any way, since there was -- the difficulty in doing a
constitution by committee is that there are a lot of different
issues involved and everyone has their own ax to grind and I'm
not here, I will point out, I'm not here to grind any
particular ax, I'm here simply to testify on what I did in
this constitutional process. So anyway, one of the
questions we asked was whether or not the, I think it was,
it came under the number -- I will look it up here. Could
you tell me the number of the question?

Q. Yeah.

A. I have my own.

THE COURT: Is the question whether or not the tribal members
wanted criminal jurisdiction?

Mr. RAGSDALE: Yeah, one of them was.

THE COURT: I don't remember but I recall reading it.

Q. (By Mr. Morrison) It is number three.

A. One of the questions we asked was whether or not the
tribe should extend its criminal jurisdiction to, in the
constitution and it is a hard question and we spent a lot
of time talking about it because one of the hard things to
understand about federal Indian law is the whole idea of
tribal sovereignty and residual sovereignty and I will be
a professor for a moment, if I can. One of the things that
is interesting about Indian tribes is that Indian tribes
have what is called residual sovereignty; in other words,
they have the right to exercise certain powers of
government, just like any other sovereign entity but those
rights have been restricted by the federal government. A very
famous case, Worcester v. Georgia, held, for example, that while
the tribe, the Cherokees in this case, had all the incidents of a
foreign nation, did not have certain specific things that were
inconsistent with their political status, foreign relations. In
1978, when the Supreme Court said that an Indian tribe did not
have criminal jurisdiction over non-Indians, it did so because it
said that act was inconsistent with political status.

So essentially you look at the Indian tribe sovereignty and you
say: Can you do this? The first thing you want to look at is
political status, is it consistent with its political status. If
the answer is no, then you take the next step and you start
looking at: Did the United States take away an element of-that
power? The classic example of taking away power by an affirmative
act was the Major Crimes Act. The Major Crimes Act, there was no
question that Indian tribes had the power to adjudicate felonies
that occurred on an Indian reservation and after Ex Parte Crow
Dog, a congressman got up in congress and said it is uncivilized
of Indians not to hang people and they passed the Major Crimes Act giving the federal government power to hear, at that time seven
major crimes.

Anyway, so we are looking at this stuff and we're talking about
the idea of sovereignty and one of the problems we had is what do
you do with a situation where there appears to be no
Indian country for purposes of criminal jurisdiction in, at that
time, the Choctaw Territory. And so what we did is we decided to
put it up to the people to vote whether or not the constitution
ought to grant the power to have criminal jurisdiction to the
government of the Choctaw Nation.

One of the things that went on, I particularly remember, I think a woman named Frances Farrell, a little short woman, I remember
talking about it and explaining the notion that there was nothing, there was nothing in the constitution that took away the tribe's
inherent power to have criminal jurisdiction; that this did not
affect the tribe's power to have inherent criminal jurisdiction,
it only affected the power of the government of the tribe to
exercise inherent jurisdiction and to me that's an important
distinction because it allows the circumstances, if as happened
now, when you do have now Indian country in this area, that the
tribe still maintained and retain power to exercise criminal
jurisdiction if and when the federal government would re-recognize the right. So anyway, we had a vote and I think it was

THE COURT: If and when the federal government would what?
Mr. RAGSDALE: Were to recognize Indian country in Eastern Oklahoma again, as it had in Western Oklahoma. So we, we submitted as one of the questions to the tribe, to the people and I think there was about sixty-five hundred voters in those days and I think it was lost at twenty-six hundred to twelve hundred and some odd number, something like that, I forgot the exact-number, and so in the
constitution we explicitly did not include a provision of criminal jurisdiction in the Choctaw Constitution because of that election.

COURT REPORTER: Excuse me.

Mr. RAGSDALE: We explicitly did not include a provision of
criminal jurisdiction in the Choctaw Constitution because of
that election process. We took the results of all eleven
questions and those results were incorporated into the
constitution which the tribe then as a group voted on to
accept or reject the new constitution.

Q. (By Ms. Morrison) So were tribal officials aware of
this lack of jurisdiction within the constitution at the
time?

A. I can't answer if tribal officials were aware of it, I
mean I wasn't involved with tribal officials, I was
involved with the committee to do this.

Q. Was the Bureau of Indian Affairs aware of this lack of
jurisdiction since they were a party to the suit that
mandated the constitutional reform?

A. The Bureau was aware, the Bureau and I assume the
Interior because the technical people who worked with me
were employees of the Bureau of Indian Affairs and the lawyers who worked with me were also employees of the Department of Interior. I mean I remember Larry Mings and a woman named Betty Bell were deeply involved in this entire election process.

Q. I was going to ask about, you mentioned residual sovereignty
where does it reside, with the people or with the government?

A. Well, I mean, seems to me that all, it is part of my basic
political philosophy is that all the power resides with the
people. What governments exercise are those powers that were
legitimately given to the people, I mean, I'm sorry, that the
people legitimately give to the government; that is sort of my
view, I couldn't imagine a situation where the government itself
has the power independent of the people. That is a personal view
of mine of the world, I don't think it is a legal view.

Q. Okay.

THE COURT: That is kind of a basic tenure of the United States.

Mr. RAGSDALE: Exactly. May I stand for a moment, Judge?

THE COURT: Sure, you bet.

Q. (By Ms. Morrison) One last question for the moment is: What is
the remedy of this lack of constitutional, no criminal
jurisdiction under the constitution?

A. Well, one of the, things that was talked about, there was an
amendment procedure in the constitution, the amendment procedure
requires 30 percent of eligible voters to submit a
petition and the constitution can be amended. Since I happen to
believe that Indian tribes have all the powers that they are
allowed to have unless somebody specifically takes it away, then I think the proper remedy, if you will, would be for the tribe to
amend the constitution, through its amendment process, to grant to the government of the Choctaw Nation criminal jurisdiction.

THE COURT: Mr. Ragsdale, if you need to remain standing you may
remain standing.

Mr. RAGSDALE: I'll just have to hop up and down because of my back.

Q. (By Ms. Morrison) In your opinion, without amending the
constitution, can the tribe exercise criminal jurisdiction over
its members?

A. I'm a person that believes in limited government, I think that -
personally I think that any government ought not to be able to
exercise any power unless there is some specific authority in
their governing documents to exercise that power. Having looked again at the Choctaw Constitution, I don't see in the document, in the constitutional document, any authority for the tribe for the
tribal government to exercise criminal jurisdiction, I don't see
it in that constitutional document.

THE COURT: I'm sorry, repeat that.

Mr. RAGSDALE: I don't see it in the constitutional document. In the document, I don't see any authority in that document for the Choctaw Government. to exercise criminal jurisdiction.

Q. (By Ms. Morrison) Since 1983, when we adopted our
constitution...

THE COURT: Wait just a minute. I'm sorry.

Q. (By Ms. Morrison) Since 1983 when we adopted our
constitution, if the federal laws has changed affecting
criminal jurisdiction of tribes without amending our
constitution and would it be, could the tribe exercise
jurisdiction based on any federal law?

A. Are you asking me I guess -- I'm not clear of what you
are asking me actually, to be honest with you.

Q. Okay. Since apparently it was unclear in 1983 when we
amended our constitution, the state of criminal
jurisdiction in Eastern Oklahoma, has the laws changed in
regard to criminal jurisdiction in Eastern Oklahoma since
1983?

A. I a not an expert on it. I have been told that Indian
country has been extended to Eastern Oklahoma but I don't
know much about the case.

THE COURT: I'm sorry, I didn't understand that. You have
been told, what?

Mr. RAGSDALE:I have been told that there has been a case
in Eastern Oklahoma extending criminal jurisdiction to the
Choctaw but I'm not familiar with the case at all.

Q. (By Ms. Morrison) That is Hodel v. Creek Nation?

A. I don't know, I mean, I just-

THE COURT: Do you have that case or do you have the cite of that
case, please, ma'am?

Ms. MORRISON: No, I can get it for you.

THE COURT: What is the name of it again?

Ms. MORRISON: Hodel v. Creek Nation, it is a 1990 case.

THE COURT: Go ahead.

Ms. MORRISON: Nothing further at this time.

THE COURT: Mr. Rabon.

CROSS EXAMINATION BY Mr. RABON:

Q. Are you familiar with the term CFR Court?

A. Yes, I am.

Q. What is a CFR Court?

A I understand it is a Code of Federal Regulations. It is
a Court that congress created allowing the Department of Interior to set up to administer laws on Indian reservations when there is not an adequate tribal court.

Q. In cases where the tribal court didn't have criminal
jurisdiction, for example?

A. The question is --was that a question or

Q. Yeah.

A. Would you repeat the question for me then.

Q. For instance, in cases where the particular tribe
didn't have a tribal court vested in criminal, expressly
vested in criminal jurisdiction by their constitution?

A.If you are asking me -- being a law professor I always
like to know exactly the question.

Q. I almost called you professor just now.

A. If you are asking me -

THE COURT: I'm scared to rule on something with a law
school teacher here staring-down my throat because --the
last time I saw one, I didn't get a real good grade. Go
ahead, I'm sorry.

Mr. RAGSDALE: If you are asking me whether or not a CFR
Court could, could rule on, could have jurisdiction on an
Indian reservation when there is no tribal court or no
tribal law, I think that was the purpose of CFR Courts.

THE COURT: Just a minute. Go ahead.

Q. (By Mr. Rabon) Mr. Ragsdale, when did you -- what year
was it when you were appointed as arbitrator or worked on
the constitution?

A. Again, late '82 or early '83, because I remember the
elections were in June but it may have been, it was almost
a solid year, actually, of time I was involved in this.

Q. Were CFR Courts around in '82 or '83?

A. Not that I can recall. I wasn't much involved in the
actual, trying to figure out what was going on at the
time. I was more trying to get a constitution worked out.

Q. Are you familiar with the Indian Law Enforcement
Reform Act of 1990?

A. No, I am not.

Q. Are you aware that that act contains a provision
whereby the BIA could enter into a contract or an
agreement with an Indian tribe for the tribe to provide
its own law enforcement?

A. I'm not familiar with the act but I'm familiar with
similar sorts of pieces of legislation that essentially
allow something along a 638 type contract for the tribe to
do certain things, yes, I'm aware of that.

Q. In other words, in situations where the BIA had
administered the law enforcement program previously, now
the tribes

A. Yes.

Q. -- as of 1990, the tribes have entered into an
agreement or into a contract rather?

A. I'm familiar with the principle, the 638 principle.

Q. Okay. Does the Constitution of the Choctaw Nation allow
the tribal council to contract?

A. I think so, yes.

Q. Then there is nothing in the constitution expressly
forbidding criminal jurisdiction; is that correct? Is that
a fair statement?

A. As far as I-recall, there is-nothing expressly forbidding.

Q. It is just silent, there is no reference to it?

A. It is silent but there is a fairly strong legislative
history that the tribe didn't intend to exercise criminal
jurisdiction.

Q. Were you aware that the Choctaw Tribal Council in '92, in
fact, contracted with the BIA?

A I'm aware from just having, you know, talked about it. I
mean I know there was a contract entered into by the tribe,
yes. I'm not familiar with the terms of the contract itself.

Q. Do you have a copy of the constitution with you?

A. Yes.

Q. Section 12 -- excuse me, Section 13

A. I'm sorry, article?

Q. I'm sorry, Article 13, Section 1.

A. Right.

Q. I would stipulate that he's an expert on Indian law, so I
could ask him a hypothetical question, unless they -

Ms. MORRISON: That's fine with me.

THE COURT: I certainly would recognize him as such.

Q. (By Mr. Rabon) According to the constitution, the tribal
court has exclusive jurisdiction to decide the disputes by vote
of two members arising under any provision of this constitution
any rule or regulation enacted by the tribal council; 'is that
correct?

A. That's what it says, yes.

Q. Okay. The defense has argued that by virtue of the fact
that the voters of the Choctaw Nation rejected the notion of
the tribal court being vested with criminal jurisdiction, given
that's their argument, that would mean this Court's a nullity,
correct? If their argument is correct, this Court would be a
nullity

A. I don't know what this Court is actually.

Q. Well, let me just break it down this way: Assuming their
argument is correct, okay, the only body that would have the
authority to even decide whether or not that argument is
correct would be the three member tribal court; is that
correct?

A. I think that if it is a constitutional question, yes,
there is a provision for a constitutional court in the document
and it seems to me that there is an argument about whether or
not this is constitutional or not; it is possible, only
possible, but this is, I assume, not that Court; is that
correct?

Q. Correct. Their argument should be made -- in your
opinion, should this argument be made to the three member
tribal court, since that is the only court referred to in the constitution?

A. If you are asking me a hypothetical question, I will try
to give an answer in the best way I possibly can. It seems to
me that one always has a right to make an argument that a Court that is trying them lacks jurisdiction, that is always a legitimate argument to me and even if one were to believe that the court was improperly constituted, you still seek to maintain that right, always with the hope that even an improperly constituted court would say we have no jurisdiction; or innocent; or dismissed or whatever words. But it seems to me that the only court that the Choctaw Constitution recognizes is the constitutional court; so therefore, it is the only court recognized, it is the only place to make an argument concerning questions of Choctaw Constitutional Law.

Mr. RABON: Thank you, I don't have any further questions.

THE COURT: Ms. Morrison, you have presented and he's presented and this is your motion, so you will be allowed to close.

Ms. MORRISON: Okay. I have one more question for Mr. Ragsdale..

THE COURT: All right.

REDIRECT EXAMINATION BY Ms. MORRISON:

Q. Can the Bureau of Indian Affairs or a federal agency confer criminal jurisdiction contractually, by contract, where
the people of the tribe have specifically said that we do not,
the court does not have jurisdiction? So can the jurisdiction
come from outside the tribe?

THE COURT: Can you hold that in your mind? Let me make a note on that.

Mr. RAGSDALE: Surely, I think I can hold it in mind.

THE COURT: The question was basically: Can the BIA confer criminal jurisdiction on a court when the members of the tribe have voted against that; is that your question?

Ms. MORRISON: Yes, that's my question.

Mr. RAGSDALE: I think that, I think that -- first, let me go back, I don't think the tribe, the people voting has anything to do with whether or not the Bureau of Indian Affairs can or cannot confer. I think the fundamental question that, about Indian jurisdiction is that in order to have jurisdiction there must be something that either takes it away or confers it or is consistent with its political status. It seems to me that I know of no case, I have thought about this, I know of no case in which, nor statute that congress has ever granted an agency that allows them to confer jurisdiction. I know of statutes that allow the tribe and the state to negotiate jurisdiction, for example, but I know of no case that allows a federal agency to confer jurisdiction that was not otherwise there.

Now, what is interesting about it, it seem to me, if you take the proposition that a federal agency can, through contract, create jurisdiction, then you have to assume that when that federal agency does not sign the contract or takes the money away, there is no jurisdiction. If they confer it by contract, then they can take it away by contract and that just seems to me to be a terrible principle of federal Indian law. I mean, I happen to believe the tribes have residual sovereignty

THE COURT: But is that a principle, but is that a principle, it may not be a good one but is that a principle?

Mr. RAGSDALE: I have never known it to be a principle. I know of no case that says the jurisdiction is conferred by contract. I can't think of any where they say through this contract you can do things. Normally what happens is that through a contract, I was trying to think of examples of situations where there would be something akin to a contractual thing or a jurisdictional thing and the closest I could think of was the liquor laws.

THE COURT: Excuse me. Go ahead.

Mr. RAGSDALE: The closest thing I could think of was the liquor laws. The body of law that controls the sale of alcohol on an Indian reservation, it is pretty clear that when an Indian tribe is making laws under these liquor regulations, what they are doing is exercising federal power, that was the famous Blue Bull Bar out of Wyoming; in that circumstance, when the tribe is passing laws, it is really acting as an arm or instrumentality of the federal government. Outside of that, I couldn't think of any other example where there would be something even remotely close to a creation of jurisdiction by a federal contract. Almost everything that I have ever heard of, what the contract does is recognize an already underlying jurisdiction and it seems to me that given that the constitution doesn't have criminal jurisdiction, I don't see where there is an underlying jurisdiction that the federal government could recognize in this circumstance even though I think there is no question that the federal government has the right to enter into a contract. The question is: Where does the power of the tribe come from in the constitution to exercise criminal jurisdiction even though clearly everyone concedes there is power to contract?

Is that --- is that the question you were asking?

Ms. MORRISON: Yes, yes, it is.

(By Ms. Morrison) One more question: Can the Bureau of Indian Affairs contract away their trust responsibility?

A. No one can no one in theory can contract away the trust responsibility because ultimately it lies with the United States. I mean the trust responsibility is not the Bureau of Indian Affairs, it is the United States' trust responsibility, delegated down through the Interior to the Bureau of Indian Affairs. But ultimately the trustee can never delegate the authority. I mean, ultimately that is what a trust is all about.

Q. So does the federal government have criminal jurisdiction
over Indians?

A. Sure.

Q. Does the State of Oklahoma have criminal jurisdiction on
trust lands?

A. I don't know enough about the specifics of recent Oklahoma
law but the normal rule was no.

Q. Does tribe have criminal jurisdiction over-its tribal members with the express consent of the tribal members?

A. Are you talking about the Choctaws or just general principles of Indian law?

Q. General principles.

A. General principle of Indian law is that an Indian tribe has criminal jurisdiction over its own members.

Q. Pursuant to a constitution?

A. If they have a constitution, pursuant to the constitution. I mean, if you talk about the government, if you talk about the government, the idea of government is that a constitution is a document which grants from the people to that government a list of limited powers. The principle of that document says that if you haven't got it in the paper, you can't point out to it, you can't exercise that right. That is the principle of a constitutional government.

In those tribes like the Navahos that do not have a
constitution, then there is a notion that the tribes have an inherent criminal power over its own members because there is no document to look to. But once a tribe chooses to have a document that the people say this represents the extent of the tribe's, the tribal government's powers. My own view of constitutional law is that once you have a document, once you have adopted that principle and you can't find the power in the document, your remedy then is to fix the document or don't try to exercise the power.

Q. Okay.

COURT REPORTER: Excuse me.

Mr. RAGSDALE: Fix the document or don't try to exercise the power, that's your remedy.

THE COURT: Very good.

Q. (By Ms. Morrison) So based on what you were saying, the federal government cannot transfer any jurisdiction based- on contract? A. Unless congress gives them the Authority. Congress has - there is no doubt in my mind that congress could pass a law that says the Bureau of Indian Affairs shall have the power to rearrange jurisdiction any way they wish but there is no law that I know of that says that. So if -- I'm not an expert in the Criminal Justice Act, I forgot the name of it, but I can't imagine a document that allows the Bureau of Indian Affairs to rearrange jurisdiction in an Indian tribe in violation of the tribe's own constitution.

Ms. MORRISON: Thank you, Mr. Ragsdale, nothing further.

THE COURT: You may step down. Is that the conclusion of your argument, ma'am?

Ms. MORRISON: Well, just to summarize. For one thing, I would like to request that the handouts that I gave you become part of the record and marked as exhibits.

Ms. MORRISON: Morris v. Watts and those fundamental differences and the constitution.

THE COURT: What now?

Ms. MORRISON: Morris v. Watts, that case, is number one. The eleven fundamental differences is like an eleven, twelve page handout, number two, and the constitution would be number three.

THE COURT: All right. I have it.

Ms. MORRISON: Okay. Thank you very much.

Just to summarize, Mr. Rabon mentioned, asked a question about this is a proper -- improper court, that we should be making the constitutional argument in the constitutional court, which is a valid court under our constitution. The problem is is my clients were not charged in that court they were charged in this court, whatever this court is and we have prior precedent of the Choctaw Court of Indian Appeals has said that the Choctaw Court of Indian 0ffenses does not have civil jurisdiction, that is the Morrison v. Roberts in the voter registration appeal, the only appeal that we have out of that Court and by extension, this court does not have criminal jurisdiction under our constitution and also under the Indian Law Reinforcement Act or Indian Law Reform,, Indian Law Enforcement Reform Act, I will get it right. On Section 2806, Subsection D, it specifically says what Mr. Ragsdale was talking about is that the provisions of this act alter neither the civil or criminal jurisdiction of the United States, Indian tribes, states, or any other political subdivisions or agencies. The Bureau, signing a contract with the tribe does not change, cannot confer or detract from any criminal jurisdiction that the tribe has under this constitution. Thank you.

THE COURT: Let me make this comment for the record: I spoke to counsel in chambers and present therein were myself, Mr. Rabon, Ms. Morrison and Mr. Dry, I believe that myself and counsel reached an agreement that with the exception of this motion that was just argued today and the Motion To Disqualify The Prosecutor, that all other motions could be ruled on based upon the motions, briefs and all responses filed thereto in the cases; is that correctly stated as to what we agreed to?

Ms. MORRISON: Yes, that's true.

THE COURT: Depending on the ruling, depending on the ruling of this, as to this motion, ruling on the other motions
may or may not be necessary. I understand that, I understand that these, that these matters are important not only to the defendants but to the members of the tribe and to the tribal government; it is not my intention to slow it down or not rule or cause a great huge delay and cause everybody a lot of stress and trauma; however, I don't, I'm not willing to, I'm hot willing to make a ruling which I believe to be one of fairly far reaching consequences not only to the Choctaws but possibly other tribes, for lack of a better term. Now, I'm not willing, I'm not willing to do that until I feel like, until I feel like that I'm fully acquainted with, with the law and can make an informed conscientious decision. Now, I'm not going, I'm not going to rule on something that is that important on the spur of the moment. I'm not going to do it. I'm not going to rule on that, on a matter that is that important based on my gut feeling just after hearing some testimony, I'm not going to do it and normally it is better to do that and I freely admit that but this, this could conceivably be too far reaching to not take the time necessary to do it in a proper manner. It is not my intention to cause you all anymore work; it is not my intention to cause the tribe anymore work; it is not my intention to cause these defendants anymore stress and trauma than they are already under or myself.

If you want -- now, I'm not going -- I took fairly good
notes -- where are you from, ma'am.

COURT REPORTER: Wilburton, Latimer County District Court Reporter.

THE COURT: I may request a transcript of this as a matter of fact, I want a transcript of this hearing on this motion. I'm not going to "may request it", I want one. If you all want to, if you all want to present any further briefs, I want you to. If you don't. that's up to you. If you do, give me some time limit about when you want to present it, when you want to have it prepared and send it to me.

Ms. MORRISON: A week, 10 days, is that too long?

Mr. RABON: I need more time than that.

THE COURT: How about -- I don't know.

Mr. RABON: 20 days.

THE COURT: Okay. How about 20 days?

Ms. MORRISON: Sure.

THE COURT: Is that agreeable?

Ms. MORRISON: Yes, that's agreeable.

Mr. RABON: All right.

THE COURT: Okay. What is it, ma'am?

SPECTATOR: He just asked me a question.

THE COURT: You have any objection to what I have just done, Ms. Morrison?

Ms. MORRISON: No, I don't.

THE COURT: Mr. Rabon?

Mr. RABON: No. Would you like for us to attach copies of any authorities?

THE COURT: Yeah, sure. I would like, I would like a transcript of these proceedings and if you will submit the bill, I guess I will either pay for it or you will get paid because I want a transcript of this hearing, okay. Is there anything further, ma'am?

Ms. MORRISON: No.

Mr. RABON: No.

Ms. MORRISON: No, if you rule against us on this, then we will set motions for the other hearings, like the motion to recuse the prosecutor?

THE COURT: I'm sorry, ma'am, what?

Ms. MORRISON: If you rule against us on this motion, we will set further dates for hearing?

THE COURT: Sure. You are going to get a full and complete hearing. As full and complete as I can give you. Is there anything further?

Ms. MORRISON: No.

THE COURT: Mr. Rabon?

Mr. RABON: No, Your Honor.

(End of Proceedings)

I, S. Jill Chapman, a Certified Shorthand Reporter of Oklahoma, duly certified under and by virtue of the laws of the State of Oklahoma, DO HEREBY CERTIFY that the proceedings had in the foregoing cause were taken in shorthand by myself and later reduced to typewritten form, by myself, and that the foregoing transcript contains a full, true, complete and correct transcript to the best of my ability of all of the proceedings had; that I am not attorney for any of the parties in this matter, nor do I have an interest in the event of same.

WITNESS MY HAND AND SEAL,, in the City of Wilburton, County of Latimer, State of Oklahoma, this 7th day of March, 1996.