CASE NO. CIV-97-113-B

DOUGLAS G. DRY, et, al,

Plaintiffs,

VS.

UNITED STATES OF AMERICA, et, al,

Defendants.

The federal defendants, United States of America, Bruce Babbitt, Ada Deere, Jim Fields, Perry Proctor, Dennis Springwater, Karen Ketcher, Curtis Wilson, and Larry Mings file this reply in support of their motion to dismiss filed June 20, 1997.

Plaintiffs' response brief filed July 21, 1997 contains extraneous and mostly irrelevant "facts." Plaintiffs apparently confuse a motion to dismiss with a motion for summary judgment. The statistics recited by plaintiffs and the repeated references to the Jurisdiction of the Choctaw tribal court or CFR
court, or lack thereof, and the administration of laws in the Choctaw Nation, see Plaintiffs' Response Brief, at 2-4, 10, 11, 13-15, confirm that these political opponents of former Choctaw Chief Hollis E. Roberts attempt to entangle this court in what is at its core an intra-tribal political dispute. The Tenth Circuit has reviewed intra-tribal political disputes on numerous occasions and has consistently determined the federal courts to be without Jurisdiction. Wheeler v. United States, 811 F.2d 549,
551 (10th Cir. 1987) (explicitly rejecting an argument that the federal government's general trust
responsibilities impose a duty to interject itself into tribal election matters); Potts v. Bruce, 533 F.2d 527, 529-30 (10th Cir.), cert. denied, 429 U.S. 1002 (1976) (federal courts lack jurisdiction over intra-tribal disputes); Pinnow v. Shoshone Tribal Council, 314 F. Supp. 1157, 1159 (D. Wyo. 1970), aff'd, 453 F.2d 278 (10th Cir. 1971) (federal jurisdiction does not exist over a dispute between members and their tribes unless expressly provided by Congress); Martinez 1'. Southern Ute Tribe of Southern Ute Reservation, 249 F.2d 915 (10th Cir. 1957), cert. denied, 356 U. S. 960 (1958) (federal courts lack jurisdiction over private civil matters between tribes and their members); Prairie Band of Pottawatomie Indian Tribe of Oklahoma v. Puckee, 321 F.2d 767 (10th Cir. 1963) (federal courts lack jurisdiction over intra-tribal disputes concerning the distribution of federal judgment funds between tribal members). Accordingly, the case against the federal defendants should be dismissed pursuant to the intra-tribal dispute doctrine.

Plaintiffs reiterate throughout their response that the court must accept as true the Amended Complaint's allegations and may not consider matters outside the pleadings while at the same time, and obviously inconsistently therewith, submitting the above referenced extraneous "facts" and a videotape. Curiously, plaintiffs never address the authorities cited in the federal defendants' motion (footnote 4) clearly establishing that the correct standard in ruling on this motion does not entail taking as true plaintiffs' allegations.

While plaintiffs concede that they cannot invoke the court's jurisdiction against the United States on the basis of 42 U.S.C. § 1983, they cavalierly argue that Jurisdiction against the United States lies pursuant to Bivens and the First, Fourth and Fifth Amendments. Not surprisingly, there are no authorities cited for this proposition. Even a cursory reading of Bivens reveals that it only applies to officials sued in their individual capacity. Plaintiffs have not pointed to any source which
could form the basis for an express waiver of the United States' sovereign immunity for constitutional violations. As documented in federal defendants' motion, sovereign immunity bars suits against officials in their official capacity. See Motion to Dismiss, at 6. Obviously, that bar is based upon the underlying sovereign immunity of the United States. It follows that the Amended Complaint fails to invoke the court's subject matter jurisdiction against the United States for alleged constitutional violations.

Plaintiffs boldly assert that the federal defendants' qualified immunity defense may only be raised in a motion for summary judgment and not in a motion to dismiss. Plaintiffs' Response at 9. Not only are there no authorities cited but this novel proposition flies in the face of the United States Supreme Court's admonition that qualified immunity is an immunity from suit rather than a mere defense to liability, Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and should be resolved at the earliest possible stage of a litigation. Anderson v. Creighton, 483 U.S. 63 5, 646 (1987); Mitchell v. Forsyth, 472 U.S. at 526; Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs' assertion is obviously without merit.

The remainder of plaintiffs' response is devoted to attempts to convince the court with conclusory arguments that somehow the Amended Complaint meets the heightened pleading standard and contains sufficient factual allegations. While plaintiffs' response pays lip service to the requirements of a heightened standard and specific factual allegations showing personal involvement of the defendants named, an examination of the Amended Complaint shows that it simply does not measure up. The federal defendants rely on their original brief which demonstrates the Amended Complaint's failure to meet any of these requirements. Motion to Dismiss at 8-13.

Plaintiffs seek to brush aside the authorities establishing that the Court of Federal Claims and
not this court has jurisdiction over their treaty violation claims by asserting that they are individual Indians and not a tribe. While that is certainly true, it does not in any way change the import of the authorities cited in federal defendants' motion that these alleged treaty violations are only cognizable in the Court of Federal Claims. Motion to Dismiss at 2-3.

Nor have plaintiffs refuted the arguments that insofar as any FTCA claims are sought to be based upon any actions of Robert L. Rabon and Kim Reed they are subject to dismissal. Neither plaintiffs' conclusory statements regarding the status or nature of Choctaw law enforcement and the roles of Robert Rabon and Kim Reed nor the video tape supplied with plaintiffs' response are sufficient to overcome the showing made in defendants' motion that neither one is an investigative or law enforcement officer. Motion to Dismiss at 3-5. Accordingly, FTCA claims may not be based upon any actions or omissions of these two defendants.

For the foregoing reasons and on the basis of the cited authorities and those in the Motion to Dismiss all claims and counts in the Amended Complaint relating to the federal defendants, except those under the FTCA (based on acts or omissions by persons other than Robert L. Rabon and Kim Reed) should be dismissed.

I hereby certify that on the 31st day of July1 1997, a true and correct copy of the foregoing document was caused to be mailed postage prepaid to the following:

Scott Kayla Morrison
P.O. Box 673
Wilburton, OK 74578

W. G. Steidley, Jr.
Charles D. Neal, Jr.
Eric D. Janzen
P.O. Box 1165
McAlester, OK 74502-1165

Alison A. Cave
P.O. Box 1609
Muskogee, OK 74402-1609