No. CIV 97-113-B

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

Plaintiffs,

vs.

UNITED STATES OF AMERICA et al,

Defendants.

Defendant Kim Reed, by and through her allomeys of record, reply to Plaintiffs' Response and would show file court as follows:

Plaintiffs in this action are members of the Choctaw Nation of Oklahoma and have filed a civil complaint with this Court against thirty individual defendants along with two Oklahoma cities and (fie United States of' America, Plaintiffs assert that these Defendants engaged in numerous delicts and conspiracies which resulted in the allegedly wrongful arrest of the Plaintiffs, alleged physical injuries incident thereto, their alleged confinement. for approximately two hours in the Talihina and Clayton City Jails, and (be filing or criminal complaints against (item in the Choctaw Court of Indian 0ffenses. See Amended Complaint passim.

Defendant Kim Reed was Director of Law Enforcement Operations for the Choctaw Nation when the alleged incidents involving Plaintiffs occurred. Amended Complaint para. 18. Kim Reed is named a defendant to Counts VIl, VIII, X, XI, XII, mid XIV herein. Id. para. 104, 111, 122, 131, 141, 152. Tile United States of America has substituted itself for Defendant Kim Reed as a party defendant In Counts X and XIV, This brief, filed on behalf of Defendant Kim Reed, Al only address Counts VII, Vill, X1, and XII.

Plaintiffs allege that Defendant Kim Reed had supervisory power over all the defendant tribal police officers in die instant litigation. Amended Complaint para. 18. More specifically, Plaintiffs allege that Defendant Reed "assaulted and bodily removed" Plaintiff McConnell from the situs of the Labor Day festivities, id para. 96, (1 that she directly supervised the alleged battery of Plaintiff McConnell by tribal police members, id. para. 97; that she participated in a "malicious arrest' of Plaintiff McConnell which deprived her of various constitutional rights, id. Paras. 104, 107, 110, 111; that she participated in the false and malicious arrest of Plaintiff Burlison, seized her literature, and deprived her of various constitutional rights, id paras. 125, 126, 127,134, 137, 138, 140,141.

Plaintiffs' Statement of the Case in their Response brief is wholly new material and does not refer to any allegations in their Complaint.

Defendant Kim Reed, as in her initial pleading, maintains that each and every one of the actions alleged to have been committed by her was under color of tribal, not federal law and Plaintiffs' counts fail to state a federal civil claim upon which relief may be granted and the Motion to Dismiss should be granted.

Plaintiffs sought leave to file an oversize brief which was granted by the Court Clerk. This oversized brief includes evidentiary exhibits which allegedly support their claims. The attached exhibits only support the new matter asserted in Plaintiffs' Statement of the Case in their Response Brief. These documents, including a videotape, do not facilitate the disposition of this Motion to Dismiss and should be excluded from consideration pursuant to FED. R. CIV. P. 12 (b)(6). See, Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996). The only exception to the attachments would be if Plaintiffs' are citing to the laws of a foreign jurisdiction (the Choctaw Nation) which Local Rule 7.2 (E and F) requires attachment of foreign jurisdiction's statutes or ordinances.

Plaintiffs assert that the Choctaw Nation does not have tribal criminal jurisdiction but has federal criminal jurisdiction because the Choctaw Tribal Council contracted with the Bureau of Indian Affairs to provide a Court of Indian 0ffenses; and, therefore Defendant Kim Reed could not have been acting in a tribal capacity but only in a federal capacity on September 4, 1995.

The United States Supreme Court in United States v. Wheeler, 435 U.S. 313, 327-29 (1978) addressed tile question of whether an Indian tribe's power to punish tribal offenders is a part of inherent tribal sovereignty or Federal sovereignty delegated to the tribes by Congress. The Court held that until Congress acts by diminishing or extinguishing tribal authority through a treaty or statute, tribes retain their inherent powers of sovereignty. Specifically, tribes retain their sovereign power to punish tribal offenders and when the tribe exercises that power, it does so as part of its retained sovereignty and not as an arm of the federal government..

Plaintiffs have conceded in their Response brief that die Choctaw Nation did not lose their right to exercise criminal jurisdiction through a treaty or a federal statute. Pursuant to Wheeler, the Choctaw Nation has the inherent power to proscribe tribal laws and prosecute tribal offenders. However, Plaintiffs assert that tile Choctaw people have given tip this it inherent power through the 1983 Choctaw Constitution. Plaintiffs' Response Brief, Exhibit E. 1 The Choctaw Constitution, Article XIII, section], provides that tile "Tribal Court shall have exclusive jurisdiction to decide disputes . . . , arising under any provision of this Constitution or any rule or regulation enacted by die Tribal Council." While the Choctaw Constitution (toes not use the words "criminal jurisdiction", it is clear from the face of die document that the Choctaw Nation has jurisdiction to enforce its Constitution and any regulation its Tribal Council should enact through its Tribal Court.

1. Pursuant to Local Rule 7.2, if a foreign jurisdiction's statute or ordinance is being relied upon, a copy of that statute or ordinance must be attached. (back)

Plaintiffs contend that because the Choctaw Nation employs a Court of Indian 0ffenses as its Tribal Court pursuant to a contract with the Bureau of Indian Affairs, die only criminal jurisdiction exercised by the Court of Indian 0ffenses would be federal jurisdiction. The Tenth Circuit Court of Appeals in Tillett v. Lujan, 931 F.2d 636, 640 (10th Cir, 1991), has addressed the validity and jurisdiction of the Court of Indian 0ffenses. The Court found that it is true that Courts of Indian Offenses do retain some characteristics of an agency of the federal government, however, the Court of Indian Offenses also functions as a tribal court through which the tribe can exercise its jurisdiction. Thus, when a tribe prosecutes tribal members for violations of tribal ordinances, the source of the authority for Court of Indian 0ffenses prosecutions is tribal rather than federal. The Tribe's use of die Court of Indian 0ffenses assists
the tribe in self governance and does not convert a tribal official's acts into actions "under color" of federal law.

Plaintiffs assert that they are without a forum to address the grievances because: 1) Defendant Kim Reed is a federal actor and Courts of Indian 0ffenses do not have jurisdiction over federal actors; and 2) There are no tribal remedies available because die Tribal Court does not have civil jurisdiction as it can only decide disputes arising under die provisions of the Choctaw Constitution or any rule or regulation enacted by the Tribal Council. Defendant Kim Reed has fully addressed that Counts VII, Vill, XI, and XII of Plaintiffs' Complaint do not stale any cognizable Bivens claim against her in her Brief in Support of her Motion to Dismiss and reincorporates those arguments and authorities in response to Plaintiffs' assertion that Defendant Kim Reed is a federal actor.

Plaintiffs further assert that even if Defendant Kim Reed is a tribal officer, she is not immune from suit and relies on Puyullup Tribe, Inc. V Washington Dept. Of Game, 433 U.S. 165, 171-72 (1977); Arizona Public Service Co. v. Aspaas, 77 F.3d 1128,1133 4 (9th Cir. 1995); Tenneco Oil Co. v. Sac and Box Tribe, 725 F.2d 572, 574 (10th Cir. 1984). These cases are factually distinguishable as all of these cases involve disputes between tribal officers: and non-Indians. In United States v. Wheeler, 435 U.S. 313, 332 (1978), the United States Supreme Court concluded that tribal courts were important mechanisms for protecting significant tribal interests and federal pre-emption of a tribe's jurisdiction to punish its members for violations of tribal law would detract substantially from tribal self-govenment. The dispute as alleged by Plaintiffs is between Plaintiffs, citizens of the Choctaw Nation, and Defendant Kim Reed, the director of the Choctaw Nation's law enforcement program. Amended Complaint paras. 4,5,6,18,19,20,21,22, and 23. This is a intratribal dispute and as such should be determined in a tribal forum and not a federal court.

Plaintiffs contend that through previous lawsuits, apparently unrelated to this instant litigation, that the Choctaw Nation has denied them access to the tribal forum and, thus, the narrow exception carved out by the Tenth Circuit Court of Appeals in Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1990), applies to these Plaintiffs.

The Dry Creek Lodge exception does not apply to these Plaintiffs. The Tenth Circuit Court of Appeals has been asked to apply the Dry Creek Lodge exception numerous times and each time the Court has held that this narrow exception does not apply because the plaintiff has failed to meet all of the factors necessary to invoke this exception. The Dry Creek Lodge will only apply when: 1) an alleged violation of the Indian Civil Rights Act has occurred; 2) the plaintiff is non-Indian; 3) the dispute does not concern the internal tribal affairs of membership and government; and 4) an actual denial of a tribal forum has occurred. 0lguin v. Lucero, 87 F.3d 401, 404 (10th Cir. 1996); Bank of Oklahoma v. Muscogee (Creek) Nation, 972 F.2d 1166, 1170 (1011) Cir. 1992); Nero v. Cherokee Nation, 892 F.2d 1457, 1460 (10th Cir. 1989); Enterprise Management Consultants V. United States, 883 F.2d 890, 892 (10th Cir. 1989); White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984).

Plaintiffs are unable to meet the factors necessary for the Dry Creek Lodge exception to apply in this instant litigation, Plaintiffs have conceded in their Response brief that the Indian Civil Rights Act does not apply. Plaintiffs' Resp, p. 9. Plaintiffs in their Amended Complaint, paras 4, 5, and 6, allege that they are citizens of the Choctaw Nation, therefore, they fail to meet the requirement that the plaintiff is non-Indian. Plaintiffs have al alleged that Defendant Kim Reed was Director of Law Enforcement Operations for the Choctaw Nation and had supervisory power of the Defendant police officers which Plaintiffs allege are Tribal Police Officers with the Choctaw Nation, Amended Complaint, paras. 18, 19,20,21, 22, and 23. These allegations demonstrate that this alleged dispute involves the internal tribal affairs concerning the Choctaw Nation.

The final factor to discuss is the actual denial of a tribal forum. Plaintiffs assert that Plaintiff Doug Dry has attempted to bring a lawsuit involving an attempt to obtain Choctaw voter registration list and lawsuit alleging sexual assault and that by actions either by the Tribal Court or the Tribal Council, their access to the Tribal Court was denied. The Tenth Circuit in White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984), addressed a similar assertion. The plaintiffs, in White, asserted that the tribal code adopting the tribal court was not properly adopted and published; however, even if the code was valid, the tribal court did not have jursdiction over a civil action involving a non-Indian; and if the code was read to confer tribal court jurisdiction ovathis action, it was invalid. The Court held that the aggrieved party must have actually sought a tribal remedy, not merely an allegation that it would be futile. "This is not merely a requirement that the exhaustion of tribal remedies is a prerequisite to federal jurisdiction, but instead, that tribal remedies, if existent, are exclusive." Id. al 1). 1312. Plaintiffs did not assert that they have sought a tribal remedy rather, they have asserted that because of previous litigation experience their efforts to seek a tribal remedy would be futile. The narrow exception enunciated in Dry Creek Lodge does not apply to these Plaintiffs.

Defendant Kim Reed submits to this Court that Plaintiffs' Amended Complaint states no claim on the basis of which relief may be granted, and that no basis for the exercise of federal jurisdiction over her may be found. Defendant Kim Reed requests this Court to dismiss with prejudice, all counts against her in the instant litigation.
Respectfully submitted,

STEIDLEY & NEAL
Attorneys for Defendant Kim Reed

I hereby certify that on the 24th day of July, 1997 a true and correct copy of the foregoing was via first class U. S. Mail to: Scott Kayla Morrison, P.O. Box 673, Wilburton, Oklahoma 74578, Attomey for Plaintiffs; Peter Bernhardt and Cathryn McClanahan, Special Assistant U.S. Attorneys, 333 West Fourth Street, Suite 3460, Tulsa, OK 74103-3809.