No. CIV 97-113-B

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

Plaintiffs, vs.

UNITED STATES OF AMERICA et al,

Defendants.

Defendants Hoppy Denison, by and through his attorneys of record, as a reply to Plaintiffs' Response would incorporate all prior briefs filed herein and would showthecourt 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 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 the filing of criminal complaints against them in the Choctaw Court of Indian 0ffenses. See Amended Complaint passim.

Defendant floppy Denison is currently Chief of Tribal Police for the the Choctaw Nation, and was such at all times relevant to Plaintiffs' Complaint. Id. paras. 19. Hoppy Denison is a named Defendant to Counts I, II, and IV, id paras. 57,64,75, all of which name Douglas G. Dry as sole Plaintiff.

Counts I and II allege that Plaintiff was attending the 1995 Choctaw Labor Day festivities on the Tuskahoma tribal grounds, where he had literature seized from him 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 the Talihina city jails. Amended Complaint paras, 45, 47-52, 58-64. 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. 54, 55, and that an "unlawful mid malicious arrest" caused them to be deprived of federal constitutional rights, id. paras. 57, tinder color of federal law, id. paras. 56.

The United States of America has substituted itself for Defendant Denison as a party defendant to Count IV. This brief, filed on behalf of Defendant Denison, will only address Counts I and II.

Plaintiffs' Statement of the Case in their Response brief is wholly now material and does not refer to any allegations in their Complaint upon which this Motion to Dismiss filed by Defendant Denison 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 DEFENDANT HOPPY DENISON AS ACTING WITHIN
THE SCOPE OF HIS EMPLOYMENT, FOR THE LIMITED PURPOSE OF THE FEDERAL
TORT CLAIMS ACT, IS NOT A FINDING THAT THIS DEFENDANT 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 Defendant Hoppy Denison was acting as a federal law enforcement officer, and was acting under color of federal law. Amended Complaint, para. 66, Plaintiffs now assert that because Defendant Hoppy Denison has been certified, lie is now precluded from arguing, that his actions were tinder color of tribal law for purposes of defending Plaintiffs' allegations that this Defendant, in his individual capacity, violated Plaintiffs' rights under the theory of a Bivens action. See, Bivens v. Six Unknown Named Agents, 4 03 U. S. 3 8 9 (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 fulfilling 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 (codifled 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 intended 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 U.S. 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 . Vee, 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 be 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 1 U.S.C. § 2801 et seq. which authorizes 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 636,640 (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 Offenses 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, whenthetribal 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 Defendant Hoppy Denison does not in and of itself convert his 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.

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 pur suant to FED. R_ CIV. P. 12 (b)(6). See, Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996). The wily deception 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.

Defendant Hoppy Denison submits to this Court that Plaintiffs' Amended Complaint states no claim on (I the basis of which relief may be granted, and that no basis for the exercise of federal jurisdiction over him may be found, Defendant Hoppy Denison requests this Court to dismiss with prejudice, all counts against him in (lie instant litigation.

Respectfully submitted,

STEIDLEY & NEAL
Attorneys for Defendant Hoppy Denison

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.