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

Petitioners,

V.


COURT OF INDIAN OFFENSES FOR THE CHOCTAW NATION and JAMES WOLFE, Magistrate,

Respondents.

No. CIV-98-11-S

On February 22, 1999, the Tenth Circuit Court of Appeals remanded this action to consider, in the first instance, whether Petitioners have sufficiently exhausted their tribal remedies. Petitioners, members of the Choctaw Nation, have filed the instant writ of habeas corpus pursuant to 28 U.S.C. § 2241 and the Indian Civil Rights Act, 25 U.S.C. § 1303, challenging the jurisdiction of the Court of Indian 0ffenses for the Choctaw Nation to proceed with the criminal prosecution of charges against them arising out of their activities at the Choctaw Labor Day Festival on tribal grounds in Tuskahoma, Oklahoma, on September 4, 1995. Having considered the respective briefs of the parties, the court concludes Petitioners have satisfied the exhaustion requirements of 25 U.S.C. § 1303 and, therefore, this action should not be dismissed.

To date, Petitioners have not been tried on the pending charges before the Court of Indian 0ffenses for the Choctaw Nation. Petitioners' tribal court criminal prosecution has been stayed by the Court of Indian 0ffenses pending the conclusion of the instant litigation, and other related litigation, instituted by Petitioners in an attempt to foreclose any prosecution by tribal authorities. With respect to the issue of Petitioners' exhaustion of their tribal remedies, the record reflects that Petitioners filed a motion to dismiss in the Court of Indian 0ffenses challenging the jurisdiction of that court and seeking the dismissal of all pending charges against them. Petitioners' motion was denied by the Court of Indian 0ffenses by minute order entered January 24, 1997. Petitioners did not appeal the denial of their motion to dismiss to an appellate court within the Choctaw Nation. The reason Petitioners did not do so is because, as admitted by Respondents, there is no duly constituted appellate tribal court within the Choctaw Nation. As confirmed by a letter from the Area Director for the Bureau of Indian Affairs (Exhibit D, attached to Respondents' Supplemental Brief on Exhaustion of Tribal Remedies) the Choctaw appellate court has not been duly constituted as the nominations for the appointment of magistrates for such court have not complied with federal law. Consequently, no appellate court exists and "[l]itigants before the Choctaw Nation Court of Indian 0ffenses presently have an expectation of any appeal being heard by Magistrates George Tahbone, Phil Lujan, and Lynn Burris [of the Chickasaw Court of Indian 0ffenses, Appellate Division]." Exhibit D. As a result of the absence of any Choctaw Nation appellate avenue of relief, Petitioners filed a writ of prohibition in the Court of Indian 0ffenses (Appellate Division) for the Chickasaw Nation seeking to prevent the further prosecution in the Choctaw Nation Court of Indian 0ffenses. By order dated June 12, 1997, the Chickasaw Nation court determined it did not have jurisdiction over the matter as it has never "been properly established or designated as the Appellate Court for the Choctaw Nation." The Chickasaw Nation Court, therefore, dismissed Petitioners' writ.

Given such circumstances, the exhaustion requirement, for federal habeas corpus relief under 25 U.S.C. § 1303 has been satisfied. Assuming exhaustion of tribal remedies is a requirement before proceeding in federal court under section 1303 with reference to a criminal prosecution, cf. Greywater v. Joshua, 846 F.2d 486, 488 (8th Cir. 1988) (exhaustion of tribal remedies not required for the exercise of federal court jurisdiction in a criminal case where the sentence may exceed one year), the court finds Petitioners have exhausted their tribal remedies. Petitioners moved the Court of Indian 0ffenses to dismiss the charges. Petitioners' motion was denied. An appeal of that denial should have been presented to a Choctaw Nation appellate court. According to parties, however, there is no duly constituted Choctaw Court of Indian Appeals. Thus, Petitioners had no court to appeal to within the Choctaw Nation court system. Consistent with the BIA Area Director's statement, Petitioners attempted to have their jurisdictional argument heard by the Chickasaw Court of Indian 0ffenses, Appellate Division, by way of writ of prohibition. Petitioners' writ was dismissed for lack of jurisdiction. Based on the parties' submissions concerning the nature of the appellate process within the Choctaw Nation, the court can only conclude that Petitioners have exhausted their available remedies as they have no other tribunal to turn to within the Choctaw Nation court system.

Respondents argue that Petitioners must exhaust by appealing the tribal court's denial of their motion to dismiss to the Chickasaw Nation's Court of Indian Appeals. The court rejects Respondents' argument for two reasons. First, Petitioners have already attempted to place the jurisdictional issue before the Chickasaw Nation court by filing their writ of prohibition. Second, to require Petitioners to appeal (as opposed to filing a writ of prohibition) the denial of their motion to dismiss to the
Chickasaw Nation court would be an exercise in futility as, that court has unequivocally stated that -it lacks jurisdiction over appellate matters arising from Choctaw Nation court proceedings. See National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 846 n. 21 (1984) (recognizing exception to exhaustion requirement under circumstances "'where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction").

Based on the foregoing reasons, the court finds Petitioners have exhausted their tribal remedies as required under 25 U.S.C. § 1303. Consequently, the court will proceed to determine the merits of Petitioners' petition for writ of habeas corpus. The parties shall file written briefs by July 14, 2000, addressing the issues raised in the petition.

IT IS SO ORDERED this 5th day of May, 2000.