No. CIV-97-113-B

DOUGLAS G. DRY, et al.,

Plaintiffs,
vs.

UNITED STATES OF AMERICA, et. al.

Defendants.

Comes now the Plaintiffs and respond to Defendants', Bill Barrow, Mike Russell, Steven Flowers and Chris Welch ("defendant officers"), motion to dismiss as follows:

Defendant officers have asserted the same arguments previously addressed by Plaintiffs in responses to motions to dismiss filed by defendant Bob Rabon, defendant Robert L. Rabon, defendant Kim Reed, and defendant USA.1 In consideration of judicial economy, court administrative economy, and to honor our Native beliefs of being good stewards of Mother Earth by saving trees, Plaintiffs incorporate all prior briefs filed in the case at bar in response to the above named defendants' motion to dismiss, including all exhibits attached to such responses.

Defendant officers, in their individual capacities, assert that they should be extended tribal sovereign immunity for their actions on September 4, 1995, due to their actions as tribal officers. However, at the request of the defendant officers asserting that they were federal officers, the U.S. Attorney's Office for the Northern District represents the defendant officers, in their official capacities, as federal officers for the same actions on September 4, 1995. Therein lies the problem. The defendant officers are taking the exact opposite position on the same issue at the same time.

Further, defendant officers are attempting to exhaust Plaintiffs' time, energy and resources by filing this motion to dismiss and Plaintiffs receiving this motion on the same day that two other motions to dismiss were due in the case at bar. Defendant Hoppy Denison also filed a motion, with the same arguments, at the same time. Two days later, Plaintiffs received yet another motion to dismiss, with the same arguments from defendants Kenneth Johnson and Blake Johnico. These motions are duplicates, and would require duplicate responses that would consume time and resources of Plaintiffs, the court and the court clerks.

Plaintiffs Dry, McConnell and Burlison and counsel have invested over two years in attempts to pin the Choctaw Nation and defendant Bureau of Indian Affairs ("BIA") down on the nature of the Choctaw court and from what source criminal jurisdiction exercised by the Choctaw Nation flows. The long and torturous history of these attempts in various courts should enlighten the Court. They are as follows:

1. On November 29, 1994, Scott Kayla Morrison, represented by Plaintiff Dry, filed a petition in the CFR Choctaw Court of Indian Offenses in a civil matter to obtain the voter registration list for the 1995 chief's election. The defendants in that CFR case were the Choctaw Nation, Hollis Roberts and Brenda Hampton, represented by the defendant Bob Rabon in the case at bar, filed a motion to dismiss asserting that the jurisdiction of the Choctaw court did not extend to general civil matters, and the motion was granted. On appeal to the Choctaw Court of Indian Appeals, the court held that the jurisdiction of the CFR Choctaw Court did not extend beyond interpreting the Choctaw Constitution and disputes arising under acts of the Council. Exhibit W to Plaintiffs' response to defendant Robert L. Rabon's motion to dismiss.

2. Morrison also filed an appeal to the Court of Indian Appeals for the Muskogee Area Office in the same case. Due to the confused wording of the appeal procedure of the Choctaw civil procedure codes, the "Court of Indian Appeals for the Muskogee Area Office," that currently sits in Ada, Oklahoma, is the appellate court of the Choctaw CFR Court. That court has not entered a ruling to date on this appeal.

3. On September 4, 1995, Plaintiffs were arrested and charged on September 14, 1995, with 19 crimes. Morrison, defense attorney, filed a motion to dismiss for lack of subject matter jurisdiction, on September 28, 1995. Choctaw CFR Magistrate James Wolfe issued a ruling on January 24, 1997, denying this motion. Plaintiffs McConnell and Burlison have appealed this decision and the appeal is still pending. Plaintiff Dry demanded a speedy jury trial as guaranteed by the U.S. Constitution on January 27, 1997, after receiving Judge James Wolfe's denial of the motion to dismiss. Judge Wolfe refused to set a date during the January 24, 1997, hearing. On July 8, 1997, Judge Wolfe issued an order setting hearing on Plaintiff Dry's January 24, 1997 motion for a speedy trial. During the course of briefing and hearings on the issue of criminal jurisdiction of the Choctaw court, defendant Robert Rabon asserted that the tribe is exercising criminal jurisdiction contracted from the federal government.

4. On September 2, 1996, Bob Burlison, husband of Plaintiff Rosie Burlison, and Tryg Jorgensen, nephew of Plaintiff Burlison, were arrested for violating Council Bill 113. On September 18, 1996, Plaintiff Dry filed an injunction in Oklahoma County district court on behalf of Mr. Burlison asking the court to enjoin state law enforcement agencies from enforcing any warrants issued by the Choctaw CFR court2. The arguments asserted by Burlison were the same as presented in the case at bar. Defendant Bob Rabon, representing the Choctaw Nation and the City of Caddo, asserted that the Choctaw court was exercising federal criminal jurisdiction contracted from the defendant BIA. Exhibit H to Plaintiffs' Response to Defendant Bob Rabon's Motion to Dismiss.

5. The course of the injunction itself was rocky. The case was filed in Oklahoma County since Gov. Frank Keating was named as a defendant. Oklahoma County court dismissed Keating and transferred the case to Atoka County. Prior to the case actually arriving in Atoka County, defendant BIA filed a petition to remove to federal court. Judge Seay remanded back due to a procedural defect. Upon filing in Atoka County, defendant BIA filed a second motion to remand to which Plaintiff Dry, as attorney for Burlison, responded. Before the motion to remand was granted, defendant BIA answered admissions requested by Plaintiff Dry on behalf of Burlison, admitting that the Choctaw court and law enforcement are exercising federal criminal jurisdiction contracted from the defendant BIA.3 Exhibit C to Plaintiffs' Response to Defendant Robert L. Rabon's Motion to Dismiss.

6. On September 26, 1996, eight days after the filing of the Burlison v. Keating injunction in Oklahoma County court, Randle Durant, speaker of the Choctaw Council, and ten other council members filed a petition for declaratory and injunctive relief in Choctaw Tribal Court against Plaintiffs Dry, Burlison, McConnell, and Bob Burlison. Exhibit I to Plaintiffs' Response to Defendant Robert L. Rabon's Motion to Dismiss. Counsel Morrison represented Plaintiffs Dry, Burlison and McConnell, also Burlison and Jorgensen in that action. Defendant Rabon, representing the Council, asserted that the Choctaw court was "a federal court being operated by the Choctaw Nation on behalf of the United States Secretary of Interior... and that said court is not being operated under Articles XII and XIII of the Constitution of the Choctaw Nation of Oklahoma and is not a tribal court." Page 3 of Exhibit I to Plaintiffs' Response to Defendant Robert L. Rabon's Motion to Dismiss. The petition was granted on December 3, 1996. Exhibit K to Plaintiffs' Response to Defendant Robert L. Rabon's Motion to Dismiss.

7. On July 24, 1996, Plaintiffs, as defendants in the Choctaw CFR Court, filed a writ of prohibition in the Court of Indian Offenses for the Chickasaw Nation, Ada, Oklahoma, CIV-96-027. The same arguments were presented to the CFR Court for the Chickasaw Nation as presented in the case at bar. On June 12, 1997, an order from the Court of Indian Appeals for the Muskogee Tribes was issued finding that the court did not have jurisdiction to issue the writ. Exhibit V to Plaintiffs' Response to Defendant Robert L. Rabon's Motion to Dismiss.

8. In the case at bar, defendant Bob Rabon, Robert L. Rabon, Kim Reed, Kenneth Johnson, Blake Johnico and defendant officers, in their individual capacities, have now taken the position that the Choctaw CFR Court is not a court exercising federal criminal jurisdiction with the U.S. Constitution applying, but a tribal court where the Indian Civil Rights Act, 25 USC §1301 et seq., would apply. This position is in direct opposition of the position asserted prior to this action by defendant Bob Rabon representing the Choctaw Nation, defendant Robert L. Rabon, tribal prosecutor, and defendant BIA.

9. Plaintiff Dry represented Kobi Russ in a civil sexual harassment suit against the then-Choctaw Chief Hollis Roberts and Linda Higginbotham, represented by defendant Bob Rabon. Russ v. Roberts, CIV-94-101-S, U.S. District Court for the Eastern District of Oklahoma. Defendant Rabon asserted much the same arguments in that case as in the case at bar. The fundamental difference between the Russ case and the case at bar in that the defendant officers, defendant Robert L. Rabon, and defendant Kim Reed were not acting as tribal officers on September 4, 1995. They were acting as federal officers exercising federal criminal jurisdiction and the federal court has jurisdiction over these defendants, so the holding in Russ v. Roberts does not apply.

Generally a petition may be dismissed as a matter of law for two reasons: (1) lack of any cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Kentucky Central Life Insurance Co. V. LeDuc, 814 F.Supp. 832, 835 (N.D. Cal. 1992). When a trial court is considering his ruling on a Rule 12(b)(6) motion he should not ask whether the petition points to an appropriate statute or legal theory, but whether relief is possible under any set of facts that could be established consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 2 L.Ed.2d 80 (1957); Bartholet v. Reishauer, A.G., 953 F.2d 1073, 1078 (10th Cir. 1992). When reviewing a motion to dismiss, the court must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them. Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971). Defendant officers have not met their burden in their Motion to Dismiss, and it should be denied.

For the above reasons, the defendant officers' Motion to Dismiss should be denied.
Respectfully submitted,

_________________________
SCOTT KAYLA MORRISON, OBA #017323
Attorney for Plaintiffs
103 _ West Main
Post Office Box 637
Wilburton, OK 74578
(918) 465-5033

1. These arguments are the same or similar to arguments asserted by the City of Durant officers in Dry v. City of Durant, CIV-97-344-B, U.S. District Court for the Eastern District of Oklahoma. Defendants in Dry v. City of Durant filed their motion to dismiss within five days of filing motions to dismiss by the defendants Robert Rabon, Kim Reed and USA.

2. Charges were dismissed against Burlison in Choctaw Court because CB-113 was not approved by the Dept. Of Interior. Defendants filed a motion to dismiss as moot in Burlison v. City of Atoka, the current style in district court for Atoka County. Judge Gabbard heard arguments on this motion on April 11, 1997, and no decision has been issued as of this date.

3. The Plaintiffs in the case at bar have continously argued that under basic concepts of constitutional law, criminal and civil jurisdiction cannot be contracted from a foreign government and must be the very nature of a constitutional government. The "ultimate source of legislative authority" is the people, Morris v. Watt, 640 F.2d 404, 407 (D.C. 1981).

On the ____ day of July, 1997, I certify that I placed in the U.S. Mail, first class postage pre-paid a true and correct of the above and foregoing Plaintiff's Response to Defendant Officers's Motion to Dismiss to the following:

Peter Bernhardt Eric Janzen
Assistant U.S. Attorney W.G. "Gil" Steidley, Jr.
333 W. Fourth Street, Ste. 3460 Steidley & Neal
Tulsa, OK 74103 P.O. Box 1165
McAlester, Oklahoma 74502

Alison Cave
Steidley & Neal
PO Box 1609
Muskogee, OK 74402

_________________________________
Scott K. Morrison