Case No. CIV 97-113-B

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

Plaintiffs,

vs.

UNITED STATES OF AMERICA et al.,

Defendants.

W. G. (GIL) STEIDLEY, JR-, OBA #8591
STEIDLEY & NEAL
100 E. Carl Albert Parkway
P.O. Box 1165
McAlester, OK 74502
(918) 4234611
COUNSEL FOR DEFENDANT
ROBERT L. RABON

TABLE OF CONTENTS

PAGE

STATEMENT OF THE CASE ...........................................................................................................1

ARGUMENT AND AUTHORITIES .....................................................................................9

1. INDEPENDENT OF ANY FEDERAL QUESTION ANALYSIS, DEFENDANT ROBERT L. RABON IS PROTECTED BY ABSOLUTE PROSECUTORIAL IMMUNITY FROM THE MALICIOUS PROSECUTION AND/OR ABUSE-OF-PROCESS COMPONENTS OF PLAINTIFFS' COMPLAINT.................................................................................................. 9

II. INDEPENDENT OF ANY FEDERAL QUESTION ANALYSIS, AND THE QUALIFIED IMMUNITY TO WHICH HE IS ENTITLED ON THIS MATTER, PLAINTIFFS CAN STATE NO DEFAMATION CLAIM AGAINST DEFENDANT ROBERT L. RABON............... 14

Ill. PLAINTIFFS CAN STATE NO BASIS FOR THE EXISTENCE OF FEDERAL QUESTION JURISDICTION IN THIS CASE............................................................................................ 17

A. AN UNBROKEN CHAIN OF UNITED STATES SUPREME COURT DECISIONS HAS UNSWERVINGLY RECOGNIZED THAT Tim UNITED STATES CONSTITUTION IS INAPPLICABLE TO EXERCISES OF TRIBAL SOVEREIGNTY ..........................................................................................................18

B. THE ACTIONS OF TRIBAL AGENTS IN PROSECUTING TRIBAL MEMBERS IN COURTS OF INDIAN OFFENSES FOR VIOLATIONS OF TRIBAL LAW ARE TAKEN NOT ONLY UNDER COLOR OF, BUT PURSUANT TO TRIBAL LAW .......................................................................................................18

C. IN THE FINAL ANALYSIS, PLAINTIFFS INVOKE THIS COURT'S JURISDICTION BASED ON THE ASSERTED JURISDICTION OF FEDERAL COURTS OVER CASES ARISING UNDER THE CONSTITUTIONS OF INDIAN TRIBES ........................................................................................................................ 19

CONCLUSION .....................................................................................................................................21

CERTIFICATE OF MAILING ............................................................................................................22

TABLE OF AUTHORITIES

Arnold v. McClain, 926 P.2d 963 (10th Cir. 1991) ...............................................................................17
Bank of Oklahoma v. Muscogee (Creek) Nation, 972 F.2d 1166 (10th Cir. 1992) ................................4
Bivens v. Six Unknown Named Agents, 403 US. 388 (1971) ..................................................5,6,8.18,20
Board qf Regents v. Roth, 408 U.S. 564 (1972) ....................................................................................17
Buckley v. Fitzsimmons, 509 U.S. 259 (1992) ......................................................................................14
Butz v Economou, 438 US. 478 (1978) .................................................................................................11
Choctaw Nation v. Burlison, No. CRM-95-04 (Choctaw Nation, Ct. Ind. Off., Jan. 24, 1997).............13
Choctaw Nation v. Dry, No. CRM-95-01 (Choctaw Nation, Ct. Ind. Off., Jan. 24, 1997) ....................13
Choctaw Nation v. McConnell, No. CRM-95-03 (Choctaw Nation, Ct. Ind. Off., Jan. 24,1997).......... 13
Dry Creek Lodge v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert.
denied, 449 U.S. 1118 (1981) ..............................................................................................................3,4,5
Dry v. City of Durant, No. CIV-97-349-B (E.D. Okla. filed May 30,1997) .....................................7,16,17
Durant v. Dry, No. C-96-02 (Choctaw Nation, Tribal [Constitutional] Ct., Dec. 3, 1996) ....................13
Duro v. Reina, 495 U.S. 676 (1990) ..................................................................................................15,18
Enterprise Mgmt. Consultants, Inc. v. United States, 883 F.2d 890 (10th Cir. 1989)...............................4
Espil v. Sells, 847 F.Supp, 752 (D. Ariz. 1994) .......................................................................................21
Ex Parte Crow Dog, 109 U.S. 556 (1993) ..............................................................................................18
Federated Dep't. Stores v. Moitie, 452 U. S. 394 (1981)..........................................................................11
T-F v. Shoshone-Bannock Tribes, 905 F.2d 1311 (9th Cir. 1990) ..........................................................21
Higgs v. District Ct., 713 P.2d 840 (Colo. 1986) ....................................................................................14
Jicarilla Apache Tribe v. Andrus, 678 F.2d 1324, 1346 (10th Cir. 1982) .................................................4
Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir. 1980) .................................................................14,17
Mitchell v. Forsyth, 472 U.S. 511 (1985 ) ................................................................................................13
Morrison v. Choctaw Nation, No. CA-95-1 (Choctaw Nation, Ct. Ind. Off. (App. Div.),Sept. 23,1995)..20
Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457 (10th Cir. 1989) ..............................................4,5
NRG Co. v. United States, 31 Fed. Cl. 659 (1994) ....................................................................................4
Paul v. Davis, 424 U.S. 693 (1976) .........................................................................................................17
Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484 (10th Cir. 1991) ....................................................11,12
RJ Williams Co. v. Fort Belknap Housing Auth., 719 F.2d 979 (9th Cir. 1983), cert. denied,
472 U.S. 10 16 (1985) ...............................................................................................................................4
Ramey Const. Co. v. Apache Tribe, 673 P.2d 315 (10th Cir. 1982) .........................................................4
Ross v. Neff, 905 F.2d 1349 (10th Cir. 1990) .........................................................................................13
Russ v. Roberts, No. CIV-94-101-5 (E.D. Okla. Apr. 24,1994) .............................................................5,6
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) .......................................................................3,4,16
Shortbull v. Looking Elk, 677 F.2d 645 (9th Cir.), cert. denied, 459 U.S. 907 (1982) ............................4
Shoshone Tribe v. Dry Creek Lodge, Inc., 449 U.S. 1119 (198 1) ..........................................................4
St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169 (10th Cir. 1979) .................................................7
Stump v. Sparkman, 435 U.S. 349 (1979) ....................................................................................10,11,13
Talton v. Mayes, 163 U.S. 376 (11196) 15, ............................................................................................18
Tillett v. Lujan, 931 F.2d 636 (10th Cir. 199 1) ......................................................................................12
Tripati v. INS, 784 F.2d 345 (10th Cir. 1986) ..........................................................................................6
United States v Wheeler, 435 U.S. 313 (1978) ........................................................................................18
Wheeler v. Department of the Interior, 8 11 F.2d 549 (10th Cir. 1999) .................................................12
Wheeler v. Hurdman, 825 F.2d 257 (10th Cir. 1987), cert. denied, 484 U.S. 986 (1987) .......................7
Wheeler v. Swimmer, 835 F.2d 259 (10th Cir. 1987) .............................................................................12
White v. Pueblo of San Juan, 728 F.2d 1307 (10th Cir. 1984) .................................................................4
Williams v. Lee, 358 U.S. 217 (1959) .....................................................................................................13
York v. American Telephone & Telegraph Co., 95 F.3d 948 (10th Cir. 1996) .........................................7
Zimomra v. Alamo Rent-a-Car, Inc., I I I F.3d 1495 (10th Cir. 1997) ................................................7,11

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend XIV ......................................................................................................................15
U.S. CONST. art. III ..............................................................................................................................21
U.S. CONST. art. III, § 2 1.......................................................................................................................3

STATUTES

25 U.S.C. § 2 (1994) ...............................................................................................................................12
25 U.S.C. § 1301 (1994) ......................................................................................................................4,20
25 U.S.C.A. § 1301(2) (West 1983 & Supp. 1997) ...............................................................................19
28 U.S.C. 1331 (1994) ........................................................................................................................3,20
42 U.S.C. 1993 (1994) .............................................................................................................................9

Federal Tort Claims Act, Act of June 25, 1948, ch. 646, 62 Stat. 982 (codified as amended at
scattered sections of 28 U.S.C.A. (West 1993 & Supp, 1997)) ...........................................................1,3

Five Civilized Tribes Act, Act of Mar. 2, 1906, 34 Stat. 9822 ...............................................................3

Indian Civil Rights Act of 1968, Pub. L. No. 90-284, Title IT, 92 Stat. 77 (codified as amended
in relevant par. at 25 U.S.C. §§ 1301-1303 (1994))............................................................. 3, 4, 5, 16, 20

MISCELLANEOUS

25 C.F.R. pt. 11 (1996) .........................................................................................................................12

25 C.F.R. § 11. 100(a)(12)(ii) (1996).....................................................................................................12

25 C.F.R. 0§11.100(c) 11.100(e) (1996) ...............................................................................................12

25 C.F.R. §§ 11.400-11.450 (1996) .......................................................................................................12

Amended Complaint .......................................................................................................................passim

Brief of Defendant Robert L. Rabon in Support of Motion to Dismiss ........................................passim

CHOCTAW CONST. art. XIII ............................................................................................................20

CHOCTAW CONST. art. XIII §3 ........................................................................................................20

CHOCTAW CONST. art. XIII, §1........................................................................................................20

Council Bill 113-96, enacted by the Tribal Council of the Choctaw Nation on July 13, 1996 ........16,17

FED. R. Civ. P. 12(b) .................................................................................................................8,9,11,12

FED. R. Civ. P. 12(b)(1) .........................................................................................................................7

FED. R. Civ. P. 12(b)(6) .........................................................................................................................7

FED. R. Civ. P. 8 ................................................................................................................................8,10

FED. R. Civ. P. 56 ..................................................................................................................................7

Plaintiffs' Response to Defendant Robert L. Rabon's Motion to Dismiss ....................................passim

Robert L. Rabon is named a Defendant to Counts I, IV, VII, X, XI, and XIV of the Plaintiffs' Amended Complaint [hereinafter "Complaint"]. This brief will only address Counts I, VII, and XI of the Complaint, sincetheUnited States of America has substituted itself for him as a defendant to Counts IV, X, and XIV under the Federal Tort Claims Act.

Counts I, VII, and XI are brought, respectively, by Plaintiffs Dry, McConnell, and Burlison, and are functionally identical with respect to Defendant Robert L. Rabon. In them, Defendant, who is identified as "Prosecutor for the Choctaw Nation Court of Indian 0ffenses," acting "in that capacity at all times relevant to [the] Complaint," Complaint para. 17, is alleged to have "made statements in his capacity as the federal Bureau of Indian Affairs prosecutor" that the Plaintiffs had been arrested at a tribal festival for "passing out ... literature," Id. paras. 53, 100 (Counts I and VII); cf. id. para. 130 (alleging the making of identical statements by Defendant "Robert Rabon, Jr.'). Confusingly (especially in light of Plaintiffs' Response to Defendant Robert L. Rabon's Motion to Dismiss [hereinafter "'Dr. in Opp."], which reveals that the statements discussed in the preceding sentence)1were the same statements as the ones discussed in this sentence), the same paragraphs in the Complaint also allege that the statements were made in his capacity as a tribal official. Id. paras. 53, 100, 130.

Except for demands for compensatory and punitive damages against him, see id. paras. 57, 104, 134, the only other mention of Defendant Robert L. Rabon in the three counts now pending against him is contained in functionally-identical allegations that he is maliciously prosecuting each of the instant Plaintiffs in the Court of Indian 0ffenses for the Choctaw Nation. Id. paras. 54, 101, 131. Each of the instant Plaintiffs affirmatively alleges that those criminal charges have yet to be resolved. Id. paras. 55, 102, 132. While identical paragraphs immediately following those just cited allege that virtually all of Defendant's co-defendants (to the relevant count) acted under the "authority of the Bureau of Indian Affairs:' placing their alleged conduct "directly under the Constitution of the United States," id. paras. 56, 103, 133, Defendant Robert L. Rabon's name is conspicuous by virtue of its omission from those paragraphs. The resulting mystery surrounding the precise basis for the assertion of a federal claim against him is deepened by the fact that the paragraphs immediately following those paragraphs allege deprivations of Plaintiffs' constitutional rights by virtually all co-defendants (to the relevant count), but allege no constitutional deprivations committed by Robert L. Rabon against them. Id. paras. 57, 104, 134.

In the conundrum in which he was placed by the amorphous nature of Plaintiffs' Complaint against him, and putting to one side for a moment thefederal jurisdiction question, Defendant made the assumption that the Complaint sought to proffer a "malicious prosecution" claim, see Brief of Defendant Robert L. Rabon in Support of Motion to Dismiss 2 [hereinafter "Defendant's Br."]. Addressing that possibility, Defendant established that the federal common law of prosecutorial immunity establishes an absolute bar to any "malicious prosecution"based action by the Plaintiffs - no matter what theory of federal jurisdiction they might adduce. Id at 4- 9. Defendant's assumption that a malicious prosecution theory would be forthcoming proved correct, see Br. in Opp. 8-15, and in this Reply, Defendant will establish that Plaintiffs' responses to his claim of absolute prosecutorial immunity fall far short of the mark. Infra at 9-14.

Defendant, however, further assumed that in light of various logical binds in which Plaintiffs would become entrapped if they did so, they did not seek to construct a free-standing defamation claim against him based on the statements he is alleged to have made. Defendant's Br. 9-13. That assumption, however, turns out to have been incorrect: perhaps grasping for the slender reed offered by the only possible area of this case in which Defendant is entitled only to qualified immunity - a fact called to this Court's (and Plaintiffs') attention by Defendant, see Defendant's Br. 10- 11. Plaintiffs have now made clear their intention to attempt precisely that. Br. in Opp. 6-8. But in so doing, Plaintiffs' residual position not only partakes of the logical and analytical absurdities discussed in Defendant's earlier brief, but with the alleged statements now particularized, see Br. in Opp. 8, actually becomes self-rebutting. Infra at 14-17.

The preceding two paragraphs temporarily put aside the question of how Plaintiffs might attempt to convert garden-variety malicious prosecution and defamation actions into federal claims, and Defendant Robert L. Rabon respectfully submits that as developed further in Propositions I and If herein, the analysis contained in those two paragraphs is fatal, without more, to any attempt by Plaintiffs to obtain relief against him. But since Plaintiffs have sought relief from this Court, the necessity of converting malicious prosecution and defamation claims into federal claims will add further impenetrable barriers to any such relief.

Plaintiffs' Complaint contains no diversity-of-citizenship allegation. Complaint para. 2; cf id. paras. 4-6 (alleging that all Plaintiffs are citizens of Oklahoma); id para. 3 (alleging that Defendant Robert L. Rabon resides within the jurisdiction of this Court). Except in diversity cases, cases involving ambassadors or other public ministers, and a few other types of cases irrelevant herein, this Court has jurisdiction only over cases arising under Constitution, laws, and treaties of the United States. U.S. CONST. art. III, § 2; 28 U.S.C. § 1331 (1994).

Considering those possibilities in reverse order, neither the Complaint nor Plaintiffs' brief makes any claim of breach of treaty obligation owed by Defendant Robert L. Rabon to the Plaintiffs. Reference to the Table of Authorities in Plaintiffs' brief will reveal that only three federal statutes, the Federal Tort Claims Act, the Five Civilized Tribes Act, and the Indian Civil Rights Act of 1968 [hereinafter ICRA], are cited in that brief. Br. in Opp. (unnumbered) iv. The Federal Tort Claims Act is mentioned only in pawing, id at 21; that reference is for present purposes manifestly irrelevant. The Five Civilized Tribes Act is also cited only in passing; Plaintiffs themselves quickly dismiss the applicability of that statute. Id. at 16. But in light of Plaintiffs' apparent invocation of the "exception" to Santa Clara Pueblo v. Martinez, 436 U.S. 49, 61 (1978) ("[T]he structure of the statutory scheme and the legislative history of Title I [of the ICRA] suggest that Congress' failure to provide remedies other than habeas corpus was a deliberate one"), arguably created by Dry Creek Lodge v Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), cert. denied, 449 U.S. 1118 IF (1981), see Br. in Opp. 22-23, it might initially have been thought that Plaintiffs were attempting to state an ICRA claim, and invoking the ICRA as a basis for federal question jurisdiction. But that is not the case.

The entirety of Plaintiffs' ICRA analysis is contained in the following passage:

Santa Clara Pueblo addressed the forum where a tribe may be sued under the Indian Civil Rights Act (ICRA), 25 U.S.C. § 130 1. This lawsuit Is not based on the ICRA nor could it be. The tribe exercises federal criminal authority contracted from the federal government, therefore the U.S. Constitution would apply.

Br, in Opp. 22 (emphasis added). In the sequence in which these sentences are combined, it is apparent that Plaintiffs, wishing to pursue their referendum-based tribal-jurisdiction-limiting theory to the end, see generally Br. in Opp. 15-19 (advancing that theory), have concluded (at least at this juncture) that since (in their view) the United States Constitution applies to this case, the ICRA does not. It is in that context that Plaintiffs' express repudiation of any ICRA claim may best be understood.2 In the absence of an ICRA claim, Plaintiffs have no statutory basis for federal question jurisdiction at all.

Although Plaintiffs apparently do not think much of Defendant's brief generally, e.g., Br. in Opp. 4 (characterizing that brief as "wordy")3 whatever its other merits or demerits, that brief sought to identify all the possible bases on which Plaintiffs might attempt to state, a federal claim consistent with the Complaint's allegations, and therefore also contemplated the possibility that Plaintiffs might seek to establish a constitutional basis for federal question jurisdiction. Frankly puzzled by the conspicuous omission of his name from the Complaint"s paragraphs alleging constitutional-rights deprivations, as well as from its "color of federal law" ones, see supra at 2 (discussing those omissions and citing the Complaint), Defendant nevertheless identified the Bivens theory as providing the only constitutional basis for federal jurisdiction even imaginable on the facts alleged, see generally Bivens v. Six Unknown Named Agents, 403 U. S. 388 (1971) (creating the federal claim that now bears the name of that case). Having done so, Defendant's brief identified both of its necessary elements, and argued that Plaintiffs could sustain neither. Defendant's Br. 16-17.

Defendant respectfully submits that the above-described context presented a virtually in haec verba invitation to the Plaintiffs to brief a Bivens theory if they intended to rely on one. But for whatever reason, Plaintiffs have refused so to do: Nowhere in Plainfiffs' brief is the word "Bivens" to be found. Nowhere in that brief is cited a single case in which Bivens relief was sought against a tribal official or a tribal employee.

Both Plaintiff Dry and Counsel for Plaintiffs have "broad, extensive background[s] ... in Indian law_." Br. in Opp, 2 n.2, Apart from their generalized expertise in the field, both Plaintiff Dry and Counsel for Plaintiffs are familiar with Russ v. Roberts, No. CW-94-101-5 (E.D. Okla. Apr. 24, 1994). See Br. in Opp. ("Plaintiff Dry represented Kobi Russ in a federal civil suit against then-Chief Hollis Roberts in 1994...") Both, therefore, must also be aware of this Court's foursquare holding in that case: "Officers and employees of an Indian tribe administering federally-funded programs act under color or authority of tribal law and not federal law. Further, officers and employees of an Indian tribe are tribal officials or tribal agents, not agents or officials of the federal government" Russ, slip op. at 2 (emphasis added). Given Counsel for Plaintiffs' expertise in the Indian law field, the similar expertise of Plaintiff Dry (who signed the Amended Complaint pro se on his own behalf, and as counsel for Plaintiffs McConnell and Burlison), the familiarity of both with Russ, the omission of Defendant Robert L. Rabon from the Complaint's "constitutional-rights deprivation" and "color of federal law" paragraphs, and the argument presented in subproposition 111-C below, Defendant respectfully suggests that this Court would be fully justified in ending any potential cat-and-mouse Bivens game by declaring any such theory -if it ever existed -to have been knowingly and voluntarily waived (or abandoned). Should this Court so hold, since for the reasons above Plaintiffs have no treaty- or statute-based theory of federal question jurisdiction, Plaintiffs would have no theory of federaI jurisdiction at all.

But this Court may in the interests of justice elect to characterize as a Bivens theory what Plaintiffs have themselves refused to characterize, even where the Plaintiffs have also declined to systematically brief it as such. See Russ, slip op. at 2 (so doing); but cf, eg., Tripati v. INS, 784 F.2d 345, 346 n. I (I 0th Cir. 1986) (emphasis added) ("Although plaintiff's complaint does not cite Bivens or related cases, we recognize the general principle of affording pro se litigants' pleadings liberal construction."), Given the possibility that this Court may so elect, Defendant will establish that on the instant facts, any Bivens theory would have manifestly fatal flaws susceptible of succinct demonstration, and that those flaws would inhere in the Complaint as a matter of law. But whether this Court deems any Bivens theory to be waived, or characterizes Plaintiffs' scattered references to constitutional rights and scattered assertions that CFR courts am federal courts as an attempt to slip under the Bivens umbrella without saying so, Bivens will provide no basis for federal question jurisdiction over this Defendant, either. Infra at 17-19.

The preceding paragraphs describe the posture of this case as it now presents itself for resolution. Before turning directly to the issues raised by those paragraphs, however, three final observations, presented at this juncture due to their overarching applicability to Plaintiffs' Brief in Opposition as a whole, must be made.

First the instant litigation involves thirty individual defendants, two municipal defendants, and Defendant United States of America. In a companion case now pending before this Court, Dry v. City of Durant,4 No. CIV-97-349-B (E.D. Okla., filed May 30, 1997), Plaintiff Dry also seeks relief for actions allegedly taken against him at the Choctaw Nation's 1996 Labor Day festivities at the Tuskahoma tribal grounds; that case names eleven additional individual defendants and one additional municipal defendant. A substantial number of documents have already been filed by Plaintiffs Dry, McConnell, and Burlison in this case, and by Plaintiff Dry in City of Durant, and the same counsel represents all Plaintiffs in both those cases. Plaintiff Dry herein, who signed the Complaint in the instant case, has verified the City of Durant complaint under penalty of perjury.

That a single case naming thirty-three defendants presents ample opportunities for tensions to develop between the theories tendered in briefs filed at different times by a plaintiff or plaintiffs against various codefendants will need no explanation. Those opportunities are compounded by the presence of a companion case brought by a common Plaintiff on nearly identical facts alleged to have occurred at the same tribal festival a year later. Some of those tensions may simply reflect divergent shades of meaning, and may to that extent be excusable. What may be less excusable, however, is to allow cracks to develop in the factual stories told, or fundamental differences to emerge in the legal theories presented within a particular case. Some of the former may also present only shades of difference in the fact as presented, and may simply be potentially misleading,5 but others may be far more serious. Mom serious still are legal arguments and theories that flatly (not arguably) contradict each other (and that are not and/or cannot be made. in the alternative). Of those, the most serious are those which are made in the same brief, rendering coherent analysis of a party's legal position literally impossible. The brief responded to herein contains notable examples of all of the above, some (but not all) of which relate to the Bivens-waiver issue addressed above.

Second, Plaintiffs apparently place little premium on the notion that words should be used in their ordinary significations, and with stable, determinate meanings. The first example of such abuse is well known to an attorneys, and is noteworthy only because of the frequency of its deployment in Plaintiffs' brief the use of "clearly" to mean "them is no authority for this untenable proposition." But the second example takes the notion of "flexibility of meaning" to new heights: as will be noted in the body of this brief, Plaintiffs' usage of the words "therefore" and "since" often transcend the generally-recognized boundaries of inference.

Third, although initially articulating the more-or-less correct standards, see Br. in Opp. 3, Plaintiffs appear not to fully apprehend - or to be able to correctly apply - the distinction between the standards imposed by FED. R. Civ. P. 8 for the technical sufficiency of a complaint, and the burdens imposed by FED. R. Civ. P. 12(b) on plaintiffs seeking to have their complaints withstand motions to dismiss. This Court will discover that where Defendant Robert L. Rabon has challenged conclusions of law literally essential to the ability of Plaintiffs' Complaint to survive the pending Motion, Plaintiffs respond - with astounding frequency - with reliance on the Complaint itself Such self-referential reliance is often buttressed by "clearly"s and non-sequitur "therefore's," and an even more exotic appeal to authority apparently of their own devise: ipse dixit assertions that Defendant Robert L. Rabon knows that the Plaintiffs are right. Taken together, what is apparently Plaintiffs' Rule 12(b) theory (at least in its application) would effectuate nothing less thantherepeal of that Rule, since no motion to dismiss could conceivably be granted if a complaint's conclusions of law were required to be taken as true.6

All three of the last-discussed matters will be highlighted in the substantive propositions that follow.

1. INDEPENDENT OF ANY FEDERAL QUESTION ANALYSIS, DEFENDANT ROBERT L. RABON IS PROTECTED BY ABSOLUTE PROSECUTORIAL IMMUNITY FROM THE MALICIOUS PROSECUTION AND/OR ABUSE-0F-PROCESS COMPONENTS OF PLAINTIFFS' COMPLAINT.

The "absolute prosecutorial immunity" component of Defendant's earlier brief in support of the pending Motion, see Defendant's Br. 4-9, is sufficiently comprehensive that it will need no rehearsal; suffice it to say that at a minimum, prosecutors am flatly and absolutely immune from malicious prosecution and/or abuse-of-process claims based on their initiation, filing, and prosecution of criminal cam. Id. Plaintiffs attempt to breach that barrier in Proposition 11 of their brief. See Br. in Opp. 4-8.

Putting to one side (for purposes of the instant Proposition only) the defamation components of Plaintiffs' functionally identical counts against this Defendant, this Court will discover that apart from a paragraph devoted to establishing the irrelevant truism that 42 U.S.C. § 1983 is an important federal statute, see Br. in Opp. 5, all of the Plaintiffs' argumentation on the immunity question is contained within three consecutive paragraphs of their brief Both for present purposes and illustrative ones reaching back to the three meta-observations made at the end of the Statement of the Case, supra at 9-11, those three paragraphs warrant reproduction in full:

The allegations against the prosecutor, the defendant Rabon, concerns [sic] statements
and actions he took not within the proper prosecutorial function. The allegations of the
complaint, therefore, must withstand any motion to dismiss as has been filed by the defendant.
Once the record is more factually developed, the defendant may attempt to assert some claim
for summary judgment, but on the basis of the complaint itself, there is no grounds [sic] for this
court to grant the defendant's motion.

The plaintiffs have asserted that the defendant Rabon prosecuted and continues to prosecute criminal actions against the plaintiffs as if his federal [sic] contracted role as a BIA prosecutor is that of a tribal prosecutor disallowing consideration of the Plaintiff's [sic] basic U.S. Constitutional rights, such as free speech., The defendant knows that there is no criminal jurisdiction by the Choctaw Nation against the Plaintiffs and therefore, the defendant's actions arc completely in the absence of any tribal jurisdiction. A judge nor prosecutor is immune for actions taken under color of his authority when the judge or prosecutor acts in the clear absence of all jurisdiction. Slump v. Sparkman, 435 U.S. 349 (1978).

Plaintiffs' complaint makes clear that the charges upon which this prosecutor brought the charges upon which this prosecutor based the criminal prosecution of the plaintiffs are in the clear absence of all jurisdiction. The Choctaw Nation, on whose behalf this prosecutor seeks to prosecute the plaintiffs has no criminaI jurisdiction and therefore, the actions of the defendant Rabon are in the clear absence of all jurisdiction and he enjoys no immunity for such actions,

Br. in Opp. 4-5 (emphasis added).

Many things do, indeed, become clear upon careful examination of those paragraphs, but that Defendant Robert L. Rabon is not entitled to absolute immunity, or that Plaintiffs can meaningfully distinguish between the requirements of Rules 9 and 12(b), are not among them.

One of the things that is clear from the above-quoted paragraph is that Plaintiffs' theory that a prosecutor may be sued for malicious prosecution is based on (1) futile self-referential reliance on the Complaint; (2) reliance on the proposition that Defendant agrees with their theory [for the record: be doesn't]; (3) the untethered rhetorical power of adjectives and adverbs (primarily "clear," "clearly,' and "therefore"); (4) Stump; and (5) their oft-advanced (but never accepted) view that the Choctaw Nation has no criminal or civil7 jurisdiction over anybody. The first three of those sources of "authority" will require no rebuttal. But three responses may be made to Plaintiffs' attempt to draw comfort from Stump.

First, that case acknowledged the absolute immunity of Judge Stump from a civil money-damages suit despite his having engaged in what surely was one of the most bizarre "judicial acts" in the history of modem absolute-judicial-immunity jurisprudence. See Stump, 435 US. at 351-55 (relating the facts of that case). At the outset, Plaintiffs' reliance may therefore accurately be characterized as reliance on dictum (not to mention dictum on which the Supreme Court has not meaningfully relied in the twenty years following Stump).

Second, and moving now to the prosecutorial branch of absolute judicial immunity, the Court of Appeals for this Circuit has rejected the view that even an utter absence of actual authority is sufficient to strip a prosecutor of absolute immunity. In Pfeiffier v. Hartford Pre Ins. Co., 929 F.2d 1484, 1491 (10th Cir. 1991) (emphasis added) (citation omitted), the Tenth Circuit stated the applicable standard in language whose intended leniency is patent: "While a prosecutor might lose absolute immunity when he acts with a complete and clear absence of authority, such a condition does not occur when a prosecutor has an arguable basis of authority grounded in a statute." In the instant case, Plaintiffs do not contest the proposition thatthecriminal offenses with which they am charged in the Court of Indian Offenses are in fact criminalized (whether validly or invalidly) under relevant statutes.8 Nor do they contest the validity of the federal statute on the basis of which the Court of Indian Offenses for the Choctaw Nation was established. Cf Mien v. Lujan, 931 F.2d 636, 641 & n.2 (10th Cir. 1991) (finding the authority forthepromulgation of 25 C.F.R. pt. 11 in 25 U.S.C. § 2, and finding the establishment of the Courts of Indian 0ffenses for the Anadarko Area tribes to pass constitutional muster under the rational-basis test), see generally 25 C.F.R. § 11. 100(a)(12)(ii) (1996) (applying 25 C.F.R. pt.11 to the Choctaw Nation). Those sources provide a of authority onthebasis of which Defendant Robert L. Rabon is entitled to absolute prosecutorial immunity, under the Pfeiffer test, from Plaintiffs' malicious prosecution and/or abuse-of-process actions against him.

Third, and even hypothesizing arguendo that the Plaintiffs' tribal-referendum-based theory is correct, and that consequently the Court of Indian 0ffenses for the Choctaw Nation has jurisdiction that differs from that of every other Court of Indian Offenses in the United States, the first sentence of the "Argument and Authorities" component of Plaintiffs' brief reads in full: "No federal court has issued a ruling onthejurisdiction of the Choctaw CFR Court of Man Offenses." Br. in Opp. 1-2; but cf Wheeler v. Swimmer, 835 F.2d 259, 261 (1 0th Cir. 1987) (rejecting a wide-ranging attack, based on grounds somewhat similar to those asserted herein, on the sovereignty of the Cherokee Nation); Wheeler v. Department of the Interior, 811 F.2d 549, 550-51 (1 0th Cir. 1999) (same, but in circumstances in which the attack was based on the method of that Nation's organization).

But since tribal courts have rejected Plaintiffs' theory,9 and state courts would have no jurisdiction to rule on the matter, see generally Williams v. Lee, 358 U.S. 217, 220 (1959) (articulating and applying the "infringement" test); Ross v. Neff, 905 F.2d. 1349 (10th Cir. 1990) (holding that Indian-country civil and criminal jurisdiction of Oklahoma state courts am preempted by Public Law 290), apparently the only persons (or institutions) that have come to that conclusion as of this date we the Plaintiffs. And in that light, precisely how Defendant Robert L. Rabon could be characterized as acting in the "clear absence of all jurisdiction," Br. in Opp. 5 (citing Stump),10 is incomprehensible - if "clear" means anything other than "clear to the Plaintiffs herein."

The final answer to Plaintiffs' absolute immunity/malicious prosecution contention responds not to Stump, but to Plaintiffs' referendum-based tribal-jurisdiction-limiting theory itself. Again, it will be assumed arguendo that Plaintiff's referendum theory is con-act. Taking no issue with Plaintiffs' logic at any point, it will Aso be assumed (as Plaintiffs conclude) that "defendant [Robert L.] Rabon could not have been acting in a tribal capacity:" Br. in Opp. 19, but was rather acting in the capacity of a federal prosecutor, "exercising federal criminal jurisdiction," id. at 8. Since in that capacity, by Plaintiffs' own logic, he would have been acting within his federal prosecutorial authority in prosecuting the Plaintiffs, see id at 22 ("The tribe exercises federal criminal authority contracted from the federal government. . . .'), why would he not then be entitled to the absolute prosecutorial immunity enjoyed by federal prosecutors with respect to their initiation and prosecution Of criminal cases? See generally Defendant's Br. 5 (citing Supreme Court caselaw recognizing the absolute immunity of federal prosecutors).

The resultant theory-implosion carries with it the entirety of Plaintiffs' Proposition III, see Br. in Opp. 8-15, and is independently fatal to the maintenance of any malicious prosecution-type claim against this Defendant, even before the federal question jurisdiction issues are addressed.

II. INDEPENDENT OF ANY FEDERAL QUESTION ANALYSIS, AND THE QUALIFIED IMMUNITY TO WHICH HE IS ENTITLED ON THIS MATTER, PLAINTIFFS CAN STATE NO DEFAMATION CLAIM AGAINST DEFENDANT ROBERT L. RABON.

In his initial brief in support of the pending Motion, Defendant expressly noted that any claim that Plaintiffs might proffer based on statements the Complaint alleges him to have made would not be subject to an absolute immunity defense, Defendant's Br. 10 (citing and quoting Buckley v. Fitzsimmons, 509 U.S. 259 (1992)), but only a qualified immunity one.11 For purposes of this argument, however, any immunity defense may also be put aside. With the exception of the misguided and misleading paragraph examined in footnote 11 herein, the totality of Plaintiffs' defamation argument is contained in two paragraphs of their brief. See Br, in Opp. 6-8. After agreeing with Defendant that absolute immunity is inapplicable to out-of-court statements of the type adduced, id. at 6, and engaging in yet another self-referential attempt to resist the pending Motion based on the Complaint's conclusions of law, id. at 7, precisely one paragraph is left. And the first half of that one makes arguments which provide some of the policy justifications for the application of absolute prosecutorial immunity to malicious prosecution claims. See id at 7. With sixteen lines left in their defamation argument, Plaintiffs consume nine particularizing the two allegedly defamatory statements:

In the cast at bar, Defendant made false statements to a reporter for the Dennison Herald, published on September 5, 1995. Exhibit B. In that interview, Rabon said, "It is my understanding ... [t]hat the tribal council passed a law prohibiting the passing out of literature on tribal lands. This was an Incorrect statement, a statement Defendant was well aware of, given the fact that he is tribal prosecutor and tribal attorney, and had been for at least four yew prior to September 4, 1995. Defendant Rabon also said in the same interview that the "US Constitution has no more applicability in Tuskahoma as the Guam Constitution." Defendant Rabon was aware or should have been aware that this was an incorrect statement.

Br. in Opp. 7-8 (ellipsis and bracketed material in original) (footnote call omitted) (emphasis added).12 Defendant will address the two allegedly defamatory statements in reverse order.

When "Tuskahoma" (in the "Guam" sentence) is contextualized by the "tribal lands" reference (in the "literature" sentence), and assuming (as must be, done for present purposes) that the statement was made, there can be no reasonable inference other than that "Tuskahoma" meant the "Tuskahoma tribal grounds of the Choctaw Nation;" Plaintiffs themselves use precisely the same verbal shorthand in their Complaint. Compare, e.g., Br. in Opp. "'Exhibit ("Choctaw Nation Labor Day Festival') and Complaint para. 45 ("Labor Day festivities at Tuskahoma) with Id. para. 48 ("this location, near Tuskahoma") and Id. para. 49 ("Tuskahoma grounds') and Id 52 ("Tuskahoma Tribal grounds'). That said, Defendant respectfully submits that anyone who was aware that in Talton v. Mayes, 163 U.S. 376 (1896), the Supreme Court concluded that the United States Constitution limits only the powers of the federal government, id at 382,13 and characterized tribal powers as "powers not created by the Constitution" (and therefore not federal powers), id. at 382-85, knew as well that Talton had been reaffirmed by the Supreme Court for over a hundred years, e.g., Duro v. Reina, 495 U.S. 676, 693 (1990) (citing Talton: "it is significant that the Bill of Rights does not apply to Indian tribal governments."), and knew as well that Congress adopted the ICRA in part due to that fact, e.g., Santa Clara Pueblo, 436 U.S. at 61- 70, could come to no conclusion other than the one allegedly made by Defendant in the "Guam Constitution" statement. Apart from that, precisely how this alleged assertion of a proposition of law - even if incorrect might have defamed the Plaintiffs goes unaddressed by them in their brief

Plaintiffs also assert that they were defamed by the following alleged statement: "It is my ... [t]hat the tribal council passed a law prohibiting the passing out of literature on tribal lands." See Br, in Opp. 8 (ellipsis and bracketed material in original). Plaintiffs' brief provides what might at first blush seem a rather cryptic explanation for the possible existence of such a tribal law, see id. at 8 n.5, but invites this Court to "[s]ee Dry v. City of Duranf" [No. CIV-97-344-B (E.D. Okla., filed May 30,1997)], now pending before this Court, "for history of CB- 113;" Br. in Opp. at 11 n. 14, Upon such an examination, this Court will discover that "CB113" is Council Bill 113-96, enacted by the Tribal Council of the Choctaw Nation on July 13, 1996, to regulate14 the passing out of literature on tribal lands. Even ignoring the"it is my understanding" caveat, the allegedly defamatory statement is true - which a document to which Plaintiffs have invited this Court's attention itself demonstrates. One statement about federal constitutional law (even counterfactually assuming its falsity), and one factually accurate statement about the legislative activities of the Choctaw Nation's Tribal Council do not a defamation suit make.

Plaintiffs have now abandoned any attempt to assert that Defendant, in haec verba, made the statement did Plaintiffs paraphrase in the Complaint - that they had been arrested "for passing out literature," Complaint paras. 53, 100, 130. But even assuming arguendo that they had not, for reasons discussed in Defendant's earlier brief, see Defendant's Br. 12, (to which Plaintiffs make no response), Plaintiffs could not deny the truth of that statement, either.15 In short, Plaintiffs can establish no defamation claim based on the alleged statements on which they rely in any court. anywhere, unless and until falsity is removed as an element of such a claim.

III. PLAINTIFFS CAN STATE NO BASIS FOR THE EXISTENCE OF FEDERAL QUESTION JURISDICTION IN THIS CASE.

The above analysis is fatal to any claim Plaintiffs may proffer against Defendant Robert L. Rabon independent of any federal-question jurisdiction analysis whatsoever. But moving to that issue, it must first be recalled that the Complaint contains no diversity-of-citizenship allegation, and that Plaintiffs have advanced no treaty or federal statutory basis for the jurisdiction of this Court. Supra at 3. Except for the possibility disposed of in subproposition III-C below, they therefore either have a Bivens basis for federal question jurisdiction, or no basis their invocation of this Court's jurisdiction at all.

Even counterfactually assuming that Defendant's statements had been less favorable to the Plaintiffs than the version proffered by than in their Complaint, see also Br. in Opp. "Exhibit B" (reproducing newspaper article (but the accuracy of which my not be assumed for purposes of the pending Motion); quoting Plaintiff Dry to similar effect), Plaintiffs could draw no comfort from such an observation. C.f. Arnold v. McClain, 926 F.2d 963, 968 n.4 (10th Cir. 1991) ("Merely because Defendant's version was less favorable to Plaintiff than his own does not give rise to the type of claim advanced by Plaintiff.").

A. AN UNBROKEN CHAIN OF UNITED STATES SUPREME COURT DECISIONS HAS UNSWERVINGLY RECOGNIZED THAT THE UNITED STATES CONSTITUTION IS INAPPLICABLE TO EXERCISES OF TRIBAL SOVEREIGNTY.

As noted above, the Supreme Court's express recognition of this principle traces back at least as far as 1896, supra at 18 (citing Talton); that Court has reaffirmed Talton's vitality in caselaw extending to the present day, e.g., United States v. Wheeler, 435 U.S. 313, 320-30 (1978); supra at 19 (citing Duro). Taking no issue with that proposition, Plaintiffs attempt to deflect it -possibly16 - with the argument that Defendant's alleged actions were under color of federal law.

B. THE ACTIONS OF TRIBAL AGENTS IN PROSECUTING TRIBAL MEMBERS IN COURTS OF INDIAN OFFENSES FOR VIOLATIONS OF TRIBAL LAW AS TAKEN NOT ONLY UNDER COLOR OF, BUT PURSUANT TO TRIBAL LAW.

The inherency of tribal powers to punish criminal offenses of tribe members has been recognized by the United States Supreme Court for over a century, e.g Talton, 163 US. at 382-85; Ex Parte Crow Dog, 109 U.S. 556 (1883), and also carries forward tothepresent day, e.g., Wheeler, 435 U.S. at 322 ("The right of internal self- government includes the right to prescribe laws applicable to tribe members and to enforce those laws by criminal sanctions.'); c.f. id. at 328 (emphasis added) ("That Congress has in certain ways regulated the manner and extent of tribal powers of self-govermnent does not mean that Congress is the source of that power."); Duro, 495 U.S. at 686 (emphasis added) ("Our finding that the tribal prosecution in Wheeler was by a sovereign other than the United States rested on the premise that the prosecution was part of the tribe's internal self-governance"). That Defendant Robert L. Rabon's actions in criminally prosecuting the instant Plaintiffs for tribal- law violations, see supra at I I n.8, is no less under color of tribal law because the prosecutions are pending before a Court of Indian 0ffenses has been recognized by nothing less than an Act of Congress. See 25 U.S.C.A. § 1301(2) (West 1983 & Supp. 1997) (emphasis added) ("'[P]owers of self-government' means ... all government powers possessed by an Indian tribe, . . . and all offices, bodies, and tribunals by and through which they am executed, including Courts of Indlan 0ffenses. . . "). Against an avalanche of Supreme Court caselaw and an Act of Congress, Plaintiffs offer only an "admission of the BIA," Br. in Opp. 8, 19, on a question of law in a case now pending in an Oklahoma state court; Defendant respectfully submits that such is entitled to no weight whatsoever.

C. IN THE FINAL ANALYSIS, PLAINTIFFS INVOKE MIS COURT'S JURISDICTION BASED ON THE ASSERTED JURISDICTION OF FEDERAL COURTS OVER CASES ARISING UNDER THE CONSTITUTIONS OF INDIAN TRIBES.

Stripped of irrelevant surplusage and any authority-naked Bivens-theory fragments that may be plucked from their self-contradiction-laden brief, e.g., supra at 18 n. 16, Plaintiffs invite this Court (perhaps with the assistance of Fred Ragsdale, see Br. in Opp. 17) to review the legislative history of a 1983 Choctaw Nation referendum, and conclude that it stripped the Choctaw Nation (not just its Tribal ["Constitutional"] Court) of criminal (and civil, see supra at 10 n.7) jurisdiction over everybody - tribal members such as the Plaintiffs included. See Br. in Opp. 17 (emphasis added) ("The criminal jurisdiction limitation of the Choctaw Nation is not found in federal statutes or treaties, rather it is found embedded in the history of the Choctaw Constitution."). 17

By this stage of the enterprise, Plaintiffs' theory no longer sounds (even remotely) like an attempt to conform to the "deprivation of federal constitutional rights" and "under color of federal law" requirements of Bivens, but more like the "Bivens-disavowal" possibility contemplated earlier in this brief, see supra at 6- 8; indeed, it is difficult to imagine why many would-be federal court plaintiffs (with respect to intratribal matters) would bother with Bivens banalities at all, when (according to Plaintiffs' theory) federal courts may sit as supersupreme courts of fribal constitutional law. Moreover, Plaintiffs' theory no longer even sounds like an attempt to conform to the "Federal question" requirements of 28 U.S.C. § 133 1, since what can such technicalities amount to in the face of Plaintiffs' correlative theory that they have been denied a tribal-court forum since they have lost in every tribal court to which they have presented their referendum-based tribal-constitutional-law theory? See Br. in Opp. 20-23 (essentially so arguing).18

Nor are Plaintiffs, who are not reluctant to pontificate about "[t]he people themselves [being] . . . 'the ultimate source of legislative authority,'" see id at 17, averse to rejecting the "popular will" when it suits their purposes, as is the case with respect to Article XIII of the Choctaw Constitution - which was also a product of the will of the Choctaw people, which they do not challenge, and which invests the Tribal ["Constitutional"] Court with the "exclusive jurisdiction to decide disputes ... arising under any provision of this Constitution," Choctaw Const. art. XIII, § 1; cf id § 3 ("The decision of the Tribal Court shall be final.'); supra at 15 n.9 (citing caselaw from that Court rejecting the theory Plaintiffs now proffer herein - in a case to which each of (INSERT PAGE 21 HERE)

Respectfully submitted,

STEIDLEY & NEAL
Attorneys for Defendant Robert L. Rabon

I certify that on the 11th day of August, 1997, a true and correct copy of the above and foregoing was mailed, postage prepaid, to: Scott Kayla Morrison, P.O. Box 637, Wilburton, Oklahoma 74578, Attorney for Plaintiffs; Peter Bernhardt and Cathryn McClanahan, Special Assistant U.S. Attorneys, 333 West Fourth Street, Suite 3460, Tulsa, OK 74103-3809.

1. See generally Dr. in Opp. 8 (identifying the alleged statements with particularity); id. "Exhibit B" (reproducing the newspaper article in which the alleged statements were published). (back)

2. Given the manner in which Plaintiffs characterize Dry Creek. see Br. in Opp. 22-23 (emphasis added) ("Dry Creek. . . carves out a narrowly constructed exception to sovereign immunity of tribes set out in Santa Clara Pueblo"); cf id at 23 (emphasis added) ("This situation comes directly under the exception to sovereign immunity of a tribe carved out in Dry Creek . . ."), Plaintiffs can do nothing meaningful with that case. Even assuming that their interpretation of that case is correct, abrogation of sovereign Immunity neither ipso facto creates a federal claim nor establishes a basis for federal question jurudiction. And even apart from that, Plaintiffs have named no Indian tribe as a party defendant to this case. It may well bethat what facially appears to be the unfocused pattern of Plaintiffs' Dry Creek argument (and their Proposition VII argument more generally, we Br. in Opp. 22-23) stems from their failure to apprehend that absolute prosecutorial immunity and tribal sovereign immunity are not synonymous, and that Defendant invokes the former, not the latter herein.

In any event Defendant reaches an ICRA conclusion identical to the Plaintiffs' - that they cannot base a federal claim on the ICRA - albeit through somewhat different analysis: both Santa Clara Pueblo, see supra at 3 (quoting same), and an unbroken line of emphatic Supreme Court decisions subsequent to that caw have unswervingly held that the ICRA creates no federal claim except in habeas corpus, And except for Dry Creek, not one federal court decision has ever held anything else. But "Dry Creek is an anomaly and, as the dissent therein notes, is inconsistent with Supreme Court dictates" in Santa Clara Pueblo and subsequent cases, NRG Co. v. United States, 31 Fed. Cl. 659 (1994); three Justices dissented born the denial of certiorari, in Dry Creek, see Shoshone Tribe v Dry Creek Lodge, Inc., 449 U. S. 1118 (198 1). Dry Creek has been rejected by every other Circuit that has considered it, e.g., RJ. Williams Co. v. Fort Belknap Housing Auth., 719 F.2d 979 (9th Cir. 1983). cert. denied, 472 U.S. 1016 (1985); Shortbull v. Looking Elk, 677 F.2d 645 (8th Cir.), cert. denied, 459 U.S. 907 (1982) [no Justices dissented from the denial of certiorari in RJ. Williams or Shortbull, and the Tenth Circuit has essentially limited Dry Creek to its facts, see, eg., Bank of 0klahoma v. Muscogee (Creek) Nation., 972 F.2d 1166,1170 (10th Cir. 1992); Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457,1460 (10th Cir. 1989); Enterprise Mgmt. Consultants, Inc. 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), Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324,1346 (10th Cir. 1982); Ramey Const. Co. v. Apache Tribe, 673 F.2d 315, 319 n.4 (I 0th Cir. 1992). Among all the fatal problems Plaintiffs would have in attempting to place any reliance on Dry Creek, the most succinctly demonstrable one was flatly established as a sine qua non by the Tenth Circuit in Nero: that the federal-court plaintiff be non-Indian, 892 F.2d at 1460; cf. Br. in Opp. 23 (emphasis added) ("The plaintiffs in Dry Creek... were non-Indians. . . ."). The instant federal-court Plaintiffs are members of the Choctaw Nation. Complaint paras. 4-6.

Apart from the above, Plaintiffs' waiver of any ICRA claim was both knowing and express, and must be taken as final. Defendant Robert L. Rabon will therefore make no further comment on the ICRA in this brief(back)

3 That Plaintiffs filed a fifty-one page Amended Complaint in this case, followed by a twenty-three page Brief in Opposition to Defendant's Motion (to which sixty-nine pages of "exhibits" are attached at the Motion to Dismiss stage of these proceedings), does not deter them from making that characterization. (back)

4 The thrust of the assertion made by Plaintiffs' first proposition - that motions to dismiss (and their supporting briefs) must assume all well-pled facts to be true, see Br. in Opp. 3 - is almost (but not quite) correct. With respect to Rule 12(b)(6), motions, it is correct save for matters subject to judicial notice, discussed below. But where a motion to dismiss in part constitutes a factual challenge to a federal court's subject-matter jurisdiction under Rule 12(b)(1), the premise is generally inoperative. See, eg., Wheeler v. Hurdman, 825 F.2d 257, 259 n. 5 (1 0th Cir. 1987), cert. denied, 484 U. S. 986 ( 1987) ("Unlike the strict limitations under 12(b)(6). . . . a 12(b)( 1) motion is considered a 'speaking motion' and can include references to evidence outside the complaint without converting it into a Rule 56 motion."). The pending Motion is based both on Rule 12(b)(6) and on Rule 12(b)( 1).

Judicial notice is appropriate where a matter is -verifiable with certainty," York v. American Telephone & Telegraph Co., 95 F.3d 948,958 (10th Cir. 19961 and may be taken al any stage of a proceeding, Zimomra v. Alamo Rent-a-Car, Inc., I I I F.3d 1495, 1503 (1 0th Cir. 1997). That a federal district court may take judicial notice of records in its own files has also been independently recognized, St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (1 0th Cir. 1979), and that the City of Durant complaint contains certain allegations (as distinguished from the truth of those allegations) is a fact verifiable with certainty.(back)

5 Compare, e.g., Br. in Opp. 5 n.3 (emphasis added) ("Bob Rabon explained to the tribal council on December 8. 1990 that without amending the constitution, exercise of criminal was not proper. Minutes not attached because tribal members may not copy council minutes.") and id at Id n. 18 ("Choctaw citizens may not copy the Council meeting minutes. We may only view than attheoffice of the Tribal Council.... Copies of the minutes are not attached for that reason.") with Plaintiffs' Brief in Response to Defendant [Bob) Rabon's Motion to Dismiss 2 (presenting verbatim quotation from co defendant Bob Rabon's December 8, 1990 statement to the Choctaw Nation's Tribal Council) and id. at 2 n.2 (emphasis added) ("We may view [council minutes] at the tribal council office. . ., read into a tape recorder and transcribe the tapes.") See generally Br. in Opp. 19 (reproducing the verbatim quotation as transcribed by Plaintiff Dry, which (assuming it is accurate) suggests as the most probable inference that co-defendant Bob Rabon was talking about a specific Choctaw court: the Tribal [or "Constitutional"] Court of the Choctaw Nation). (back)

6 Perhaps the ideal complaint under such a regime would simply read: "The Defendant is liable to the Plaintiff" (back)

7 While Plaintiffs seek to limit the consequences of their tribal-referendum-based theory, see generally Br. in Opp, I 15- 19 (advancing that theory), to criminaI jurisdiction, eg., id. at 17 (emphasis added) ("The Choctaw Nation of Oklahoma does not have criminal jurisdiction over its members due to this vote of the Choctaw citizens."), the briefest glance at the referendum question itself, we id, at 16 (emphasis added) ("Shall the tribal court be expanded to include general civil, criminal, and probate matters?"), reveals no basis for limiting the referendum's asserted effect to the criminal-jurisdiction context. (back)

8. While not challenging the fad that those criminal offense provisions exist, Plaintiffs struggle conspicuously to avoid suggesting that the criminal offenses with which they we charged were established by tribal law. The Complaint, for example, describes them only by the count numbers of the criminal complaints now pending before the Court of Indian Offenses, see Complaint paras. 54, 101, 131; Plaintiffs' Brief in Opposition, which demonstrates that Plaintiffs know how to cite tribal ordinances when they want to, see Br. in Opp. 18, 21. identifies them only as untethered section numbers, see id at II n. 11 (failing to provide full citations to the provisions establishing those offenses), As this Court is aware, -artful pleading" is not a phrase of admiration when apoied to pleadings by federal courts. Eg., Federated Dep't. Stores v. Moitie, 452 U.S. 394,397 n.2 (1981); Butz v. Economou, 438 U.S. 478, 507-08 (1978); Zimomra v. Alamo Rent-a-Car, Inc. III F.3d 1495, 1501 (10th Cir. 1997). But whether or not the resultant Rule 12(b) pantomime was intentionally created by "artful pleading" (and/or is being intentionally maintained by "artful briefing"), the time has now come to definitively terminate it - without running any risk whatsoever of converting the accompanying Motion to Dismiss into a Motion for Summary Judgment. That result may be achieved on any of a number of bum and since space is at a premium, Defendant will comment only on the most quickly-demonstrable (and Rule 12(b)-impeccable) one, which requires nothing more than comparison of the Complaint with the Code of Federal Regulations.

For purposes of determining the substantive criminal law to be applied by Courts of Indian 0ffenses, the latter imposes a binary choice: either the provisional criminal code established by 25 C.F.R. §§ 11.400-11.450 (1996), or tribal criminal provisions, see id. §§ 11. 100(c), 11. 100(e), 11.449. Since among the offense titles affirmatively pled in the Complaint, see Complaint paw. 54, 101, 13 1. only "Resisting Arrest" is replicated in the provisional criminal code, see 25 C.F.R. § 11 .434 (1996), and since Plaintiffs have not pled the matter one way or the other, any attempt by Plaintiffs to have this Court draw the "favorable!* inference (for Rule 12(b) purposes) that the criminal offenses with which the instant Plaintiffs are charged were anything other than tribal criminal provisions would be an attempt to have this Court draw an unreasonable inference from the Complaint's allegations. Cf. Br. in Opp. I I (quoting Tenth Circuit caselaw limiting inferences to which plaintiffs are entitled at &c Rule 12(b) stage to reasonable ones); see generally id. at I I n. I I (suggesting that the "Resisting Arrest" charge identified as such in paragraph 54 of the Complaint may in fact have been something other than that ab initio).(back)

9 Durant v. Dry, No. C-96-02 (Choctaw Nation. Tribal [Constitutional] Ct., Dec. 3, 1996); Choctaw Nation v. Dry, No. CRM-95-01 (Choctaw Nation, Ct Ind Off, Jan. 24,1997); Choctaw Nation v. McConnell, No. CRM-95-03 (Choctaw Nation, Ct Ind. Off., Jan. 24,1997); Choctaw Nation v. Burlison, No. CRM-95-04 (Choctaw Nation, Ct. Ind. Off , Jan. 24, 1997) (copies attached to this brief pursuant to Rule of this Court). (back)

10 The Stump Court did employ "clew' in its ordinary signification, see Stump, 435 U.S. at 365 n.6, and immunity doctrine does not require governmental officials to anticipate doctrinal shifts even where only qualified immunity is in issue. See generally Mitchell v. Forsyth, 472 U. S. 511, 529 (1985). (back)

11 In that brief, Defendant also providedthepinpoint citation to the passage in Buckley in which the Cowl held that qualified immunity applied to such statements. Defendant's Br. 10 (citing Buckley, 509 U.S. at 277-78). To that, Plaintiffs reply with an ipse dixit untethered to legal authority: "Clearly, the actions alleged against this defendant should not enjoy absolute immunity nor even qualified immunity," Br. in Opp. 6 (emphasis added). Plaintiffs' citation style, which often eschews pinpoint page references, does so with reaped to the two cases it cites for other propositions in the same paragraph. See Br. in Opp. 6. But this Court need not review all forty-eight pages of those two (pre-Buckley) decisions to determine dud neither involved the initiation and/or pursuit of a criminal prosecution, yet both held qualified immunity to apply. Higgs v. District Ct, 713 P.2d 840, 858 (Colo. 1986) (contemplating, inter alia, prosecutorial assistance to the police with respect to their construction of a photo identification procedure for that caw); Marrero v. City of Hialeah, 625 F.2d 499, 5 10-11 & n. 16 (5th Cir. 1980) (contemplating public statements by a prosecutor, provided the prosecutor's discretion was broad enough to allow him to make them).

As an independent matter, Plaintiffs' citation of Marrero as flat support for the proposition that "[s]tatements asserting a violation of a law dot does not exist or statements falsely implying or imputing certain evidence ... can be used to subject a prosecutor to liability:" Br. in Opp. 6. is also flatly misleading: careful examination of Marrero reveals not one reference to any "law that does not exist," or anything remotely approximating same. (back)

12 The gravamen of the last seven lines of Plaintiffs' defamation argument, that the Court of Indian 0ffenses for the Choctaw Nation is a federal court, exercising federal criminal jurisdiction, will be rebutted in subpropositions III-B and III-C below. (back)

13 Through (he -selective incorporation" doctrine, of course, the United States Supreme Court has later found most Bin of Rights guarantees to inhere in the Due Process Clause of the fourteenth amendment, thereby also rendering the "incorporated" Bill of Rights guarantees opposable to state action. (back)

14 Preferring to err on the side of wordiness rather than imprecision, Defendant notes that Council Bill 113-96, inter alia, prohibited the distribution of literature at the Tuskahoma tribal grounds except as authorized by its permitting provisions. See Dry v. City of Durant, No. CIV-97-344-B (E.D. Okla., filed May 30, 1997), Complaint "Exhibit A" (reproducing Council Bill 113-96). See generally supra at 7, n.4 (citing Tenth Circuit judicial notice caselaw). (back)

15 As a related matter, and even (for the lad time) assuming that Defendant's actions were under color of federal law,the"interest subject to due process protection" requirement established by Board of Regents v. Roth, 408 U.S. 564, 577 (1972) (providing the historical basis for potential "stigmatization" claims). and Paul v. Davis, 424 U.S. 693, 701 (1976) (holding reputational interests to be generally outside due process protection), would provide an additional insurmountable barrier to relief against Defendant in this court. Serendipitously, Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir. 1980), cited by Plaintiffs and disposed of (for the purpose Plaintiffs invoke it) in footnote11 above, illustrates the fatality of the Roth/Paul "liberty interest" problem in crisp fashion:

A statement that "X has been arrested for receipt of stolen property" would not be defamatory if X in fact
had been arrested for the reason stated since such a statement merely states a fact. However, a statement
that "X has received stolen property" would be defamatory if in fact the property X received was not,
stolen.

Marrero. 625 F.2d 499,519 n.25. Thus, even had Defendant made the in haec verba statement alleged in the Complaint (and now manifestly only a marginally-descriptive paraphrase); even were Plaintiffs to maintain that the mysterious, sometimes-present-sometimes-not "CB-113," see eg.. Br. in Opp. 8 n.5 ("[O]n September 4,1995, no such law was in place in the Choctaw Nation."); Id al 6 ("law that does not exist"); id. at 8 n.5 ("Choctaw Council did pass a law prohibiting passing out literature. . . ."). was non-opposable to them because it failed to receive approval from the Secretary of Interior, see generally City of Durant, Complaint para. 21 (so alleging); and even should Plaintiffs conjure a way to simultaneously assert that the (by this stage, merely hypothetical) statement "Plaintiffs were arrested for possessing and/or passing out literature" was false while pleading that they were arrested for possessing and/or passing out literature, see. e.g., Complaint para. 95 ("Defendants Bill Barrow and Chris Welch ... placed Plaintiff (McConnell] under arrest, for being in possession of the literature. . . ."); id. para. 108 (emphasis added) (alleging that Plaintiff McConnell was informed that she had been arrested ':for possessing and passing out literature"), any such statement would have merely been (by Plaintiffs' own allegations) a statement of fact, on the basis of which no liberty-interest deprivation could arise. (back)

16 The "possibly" qualifier is added in light of dim observations: (1) the "Bivens-waiver" observations made in the Statement of the Cam, see supra at 5-6; (2) the observations made in subproposition 111-C of this brief, see infra at 19-2 1, and (3)the fact that some of Plaintiffs' own words, taken literally, sometimes contradict the premise of any Bivens argument. An example of such words, based on an unsupported and false (but for present purposes irrelevantly-so) premise may be found at Br. in Opp. 2 n.2 (emphasis added):

Recently. the defendant BIA and the Choctaw Nation finally agreed that the tribe is exercising federal criminal jurisdiction contracted through a 1-93-638 contract. Plaintiffs do not concede that this is a correct interpretation of the law....

The sentence continues with Plaintiffs' reminder to this Court of the "broad, extensive background[sl" of Plaintiff Dry and Counsel for Plaintiffs in the field of Indian law. Id. Neither the Complaint nor the Brief in Opposition to Defendant's pending Motion were filed by pro se, non-attorney plaintiffs. (back)

17 C.f. Br. in Opp. 15-19 (developing that theory); id. at 18 (arguing that the Choctaw Nation could restore its sovereignty by amending its own constitution). (back)

18 C.f. Br. in Opp. 20 (apparently oblivious, inter alia. to the notion of absolute prosecutorial immunity, essentially arguing that their alleged inability to sue Defendant Robert L. Rabon in the Court of Indian Offenses for the Choctaw Nation mandates that Plaintiffs be allowed to do so in this Court); Id at 20-21, 23 (essentially arguing that Morrison v. Choctaw Nation, No. CA-95-1 (Choctaw Nation, Ct. Ind. Off. (App. Div.). Sept. 23, 1995), in which the Appellate Division of the court of man offenses for the Choctaw Nation held that the appellant therein (Counsel of Plaintiffs herein) had failed to present sufficient federal and/or tribal legal authority to the Court of Indian Offenses to warrant its exercise of jurisdiction to compel the Choctaw Nation to provide her with the voter information she sought, forecloses virtually all civil remedies in that Court (which by Plaintiffs' own argument herein, see supra at 13 N.7, that court lacks jurisdiction over in any event)); Br. in Opp, 2 n.2 & "Exhibit V" (perhaps suggesting that the refusal of the Court of Indian 0ffenses for the Chickasaw Nation - from which the instant Plaintiffs also. sought relief - to grant an extraordinary writ of prohibition forbidding their criminal, prosecution in the Court of Indian 0ffenses for the Choctaw Nation, also constituted a "denial of a tribal forum" somehow ipso facto entitling them to such relief from this Court). Perhaps the thought that the sovereignty of the Choctaw Nation (which has existed from time immemorial), buttressed by a century of Supreme Court caselaw, the legislative history of the ICRA, and 25 U.S.C. 11301(2) (1994) compel the conclusion that they may be legally required to actually go to trial on the criminal charges now pending against them has not yet occurred to the Plaintiffs. (back)