No. CIV 97-113-B

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

Plaintiffs, vs.

UNITED STATES OF AMERICA et al,
Defendants,

Defendants Bill Barrow, Mike Russell, Steven Flowers and Chris Welch, by and through their attorneys of record, as a reply to Plaintiffs' Response would incorporate all prior briefs filed herein and would show the 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 the United states or America. Plaintiffs assert that these Defendants engaged in numerous delicts and conspiracics 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 the filing of criminal complaints against them in the Choctaw Court of Indian 0ffenses. See Amended Complaint passim.

Defendants Bill Burrow, Mike Russell, Steven Flowers, and Chris Welch [hereinafter, when referred to collectively, "the tribal police officers"] are currently tribal police officers of the Choctaw Nation, and were such at all times relevant to PLAINTIFFS' COMPLAINT. Id. paras. 20-23.

Mike Russell and Steven Flowers are named Defendants to Counts I, II, and IV of the Complaint, id paras, 56, 64, 75; each of those counts lists Plaintiff Douglas G. Dry as the solo plaintiff therein, id.

Bill Barrow and Chris Welch are both named Defendants to Counts VII, VIII,and X, id paras 104, 111, 122; each of those counts lists Plaintiff Juanita McConnell as the sole Plaintiff therein, id

Bill Barrow is also named a Defendant to Counts XI, XII, and XIV, id paras. 134, 14 1, and 152; each of those counts lists Plaintiff Rosie Burlison as the sole Plaintiff therein, id.

This Court will discover that the counts pled against the Defendant tribal police officers run in parallel sequence. Of the three counts brought by each of the three Plaintiffs against these Defendants, the first listed in each of (lie above three paragraphs (Counts I, VII, and XI) alleges that the Plaintiff in question was attendingthe1995 Choctaw Labor Day festivities on the Tuskahoma tribal grounds, where they had literature seized from them while being falsely arrested by one or more of the Defendant tribal police officers, and that each was then beaten and removed from the tribal grounds to either the Talihina or Clayton city jails. Compare Complaint paras. 45-54 (Count I: Plaintiff Dry) with id. paras. 93-101 (Count VII: Plaintiff McConnell) and id. paras. 123-31 (Count XI: Plaintiff Burlison). Each of those counts further alleges that the criminal charges now pending against them in the tribal court "have yet to be resolved," id. paras. 55, 102, 132, and that an "unlawful and malicious; arrest" caused them to be deprived of federal constitutional rights, id paras. 57, 104, 134, under color of federal law, id paras. 56, 103, 133.

The United States of America has substituted itself for Defendant tribal officers as a party defendant to Counts IV, X and XIV. This brief, filed on behalf of Defendant tribal officers , will only address Counts 1, 11, VI I, Vill, XI, and XII.

Plaintiffs' Statement of the Case in their Response brief is wholly new material and does not refer to any allegations in their Complaint upon which this Motion to Dismiss riled by Defendant tribal officers is based. Plaintiffs Amended Complaint fails to state a federal civil claim upon which relief may be granted and this Motion to Dismiss should be granted.

I.

THE FEDERAL CERTIFICATION OF DEFENDANTS BILL BARROW, MIKE RUSSELL, STEVEN FLOWERS AND CHRIS WELCH AS ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT, FOR THE LIMITED PURPOSE OF THE FEDERAL TORT CLAIMS ACT, IS NOT A FINDING THAT THESE DEFENDANTS WERE ACTING UNDER COLOR OF FEDERAL LAW FOR THE PURPOSES OF A BIVENS ACTION.

Plaintiffs allege that pursuant to 25 U.S.C. § 2801, et seq, that Defendants Bill Barrow, Mike Russell, Steven Flowers and Chris Welch were acting as federal law enforcement officers, and were acting under color of federal law. Amended Complaint, para. 66. Plaintiffs now assert that because these tribal officers have been certified, they are now precluded from arguing that their actions were under color of tribal law for purposes of defending Plaintiffs' allegations that these Defendants, in their individual capacity, violated Plaintiffs' rights under the theory of a Bivens action. See, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

The United States Congress has expressly stated that when an a civil action is brought against a tribe or tribal officer(s) while acting within the scope of their employment in fullfilling the contract between the tribe and the Bureau of Indian Affairs that the action will be deemed to be against the United States and be afforded the full protection and coverage of the Federal Tort Claims Act. Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 101 -512, Title III, § 314, 104 Stat. 1959, as amended Pub. L. No. 103-138, Title III, § 308,107 Stat. 1416 (codified as amended at 25 U.S.C. §450f (Supp. 1997)). This pronouncement by Congress is limited to actions raised under the Federal Tort Claims Act.

The inclusion of tribes for the limited purpose of the Federal Tort Claims Act does not mean Congress inteded to extinguish the tribe's sovereignty by allowing tribal officers to be subjected to Bivens actions as well. The United States Supreme Court in United States v. Wheeler 435 US. 313, 323 ( 1978), recognized that Indian tribes have the inherent power to enact laws for their members and to punish violations of those laws as part of' their retained sovereignty. The Court found that tribes retain their sovereignty unless that sovereign right has been divested either through specific treaty provisions or by statutes enacted by Congress. Without an explicit statutory language, the courts have been reluctant to find congressional abrogation of treaty rights . See, United States v. Dion, 476 U.S, 734,739 (1986); E.E.O.C v. Cherokee Nation, 871 F.2d 937,939 (10th Cir. 1989). Congress has not enacted legislation which has expressly included Indian tribal officers acting under tribal law to he subject to a Bivens action, brought against them in their individual capacity. Further, to subject a tribal officer to a federal civil action every time any tribal member was dissatisfied with his/her performance as a tribal officer would impede the effective exercise of tribal sovereignty and would be in contradiction to the federal policy of tribal self-determination through its adoption of the Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 93-638, 88 Stat. 2206 (codified at 25 U.S.C. §450 et seq.).

Plaintiffs' assertions are not consistent with the Indian Law Enforcement Reform Act, 25 U.S.C. § 2801 et seq. which authroizes law enforcement services to operate similarly to the Courts of Indian 0ffenses in that the law enforcement officers enforce federal law and tribal law pursuant to a contract between the tribe and the Bureau of Indian Affairs. 25 U.S. C. § 2802 (c) (1) (1990). It is apparent that pursuant to this Act, Indian law enforcement services have aspects of federal and tribal law. Although, there does not appear to be a case which specifically addresses this issue, the Tenth Circuit Court of Appeals addressed the jurisdiction of Court of Indian 0ffenses and its holding would be analogous as the Court of Indian 0ffenses, which is provided to tribes pursuant to a contract with the Bureau of Indian Affairs, also enforces federal and tribal law. In Tillett v. Lujan, 931 F.2d 630, 640 (10th Cir. 1991), the Court found that Courts of Indian 0ffenses do retain some characteristics of an agency of the federal government, however, the Court of Indian 0ffenses also functions as a tribal court through which the tribe can exercise its jurisdiction. When the Court of Indian 0ffenses is employed by the tribe, the source of the authority for the Court of Indian 0ffenses is tribal and not federal.

Applying these same principles herein, when the tribal officers actions are based on tribal laws rather than federal law, then the tribal officers' actions are under color of tribal law. Therefore, the mere certification of of Defendants Bill Barrow, Mike Russell, Steven Flowers and Chris Welch does not in and of itself convert their actions into federal law rather when the tribal officers; are enforcing tribal law then their actions are under color of tribal law. Plaintiffs fail to state a Bivens claim on the facts alleged.

II.

A MOTION TO DISMISS MAY NOT ASSERT FACTS OUTSIDE THE PLAINTIFFS' PLEADING.

Plaintiffs have incorporated all their prior briefs filed in the case herein, including all exhibits attached to those briefs. These briefs include evidentiary exhibits which allegedly support their claims. The attached exhibits only support the new matter asserted by Plaintiffs in each of their briefs. 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 Ride 7.2 (E and F) requires attachment of foreign jurisdiction's statutes or ordinances.

CONCLUSION

Defendants Bill Barrow, Mike Russell, Steven Flowers and Chris Welch submit 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 them may be found. Defendants Bill Barrow, Mike Russell, Steven Flowers and Chris Welch request this Court to dismiss with prejudice, all counts against them in the instant litigation.

Respectfully submitted,

STEIDLEY & NEAL
Attorneys for Defendants Bill Barrow, Mike Russell,
Steven Flowers and Chris Welch

I hereby certify that on the 4th day of August, 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.