Case. No.
Petition for Writ of
Prohibition

DOUGLAS G. DRY, ROSIE LEE BURLISON, and JUANITA McCONNELL,

Petitioners,

VS.

COURT OF INDIAN OFFENSES OF THE CHOCTAW NATION,

Respondent,

and

CHOCTAW NATION OF OKLAHOMA,

Real Party in Interest.

1. In 1977, the federal district court for the District of Columbia decided Harjo v. Kleppe, 420 F. Supp. 1110 (D.C. 1976). The court held that the 1866 Creek Constitution was still in force and ordered a process to amend the document.

2. In September 1977, Choctaw citizens filed suit against the Choctaw Nation chief, and the Bureau of Indian Affairs (BIA) in the District of Columbia federal district court, Morris v. Andrus. The Choctaws argued that the 1860 Choctaw Constitution was still in effect, using similar arguments that were made in the Harjo v. Kleppe case since the same attorneys which represented the Creek citizens represented the Choctaw citizens.

3. In response to this lawsuit, then-Chief David Gardner submitted a proposed constitution to the BIA for approval. Before it could be approved and ratified, Chief Gardner died and the current chief, Hollis Roberts, was elected in April 1978. Chief Roberts, with the assistance of a Hugo attorney and consultants, wrote another proposed constitution and submitted it for approval by the BIA. This Provisional Constitution was ratified in 1979.

4. With the approval and ratification of the Provisional Constitution, defendants Roberts and the BIA moved to dismiss the lawsuit in Morris v. Andrus. The Chickasaws had a similar lawsuit, Cravatt v. Andrus, which was joined on appeal to become
Morris v. Watt, 640 F.2d 404 (D.C. Cir. 1981).1

5. The Court of Appeals ordered new elections on the constitutional reform process. One election was to be on eleven fundamental differences between the 1860 Constitution and the 1979 Provisional Constitution. Question 3 was: "Shall the tribal court's jurisdiction be extended to include general civil, criminal and probate matters?" Attachment 1. The Choctaw voters rejected this expansion of the tribal court's jurisdiction, at the urging of Chief Roberts. Attachment 2. He said:

Under the present Constitution, the Court is set up to interpret and decide disputes which involve provisions of the Constitution and laws passed by the council. We have no business getting into the criminal and probate jurisdiction. How would we enforce criminal laws? We have no jails or means to punish people! The state and federal governments do this and I doubt that they would permit us to get involved. Likewise, the state has probate courts to settle people's estates. No attorney in Oklahoma or any other state would recognize probate proceedings in our tribal court. I urge a no vote.

6. The 1983 Constitution was approved and ratified without the expansion of the tribal court's jurisdiction. Attachment 3. Article XIII, Section 1 provides that "The Tribal Court shall have exclusive jurisdiction to decide disputes ... arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council." The Constitution has never been amended.

7. As a defendant in the Morris v. Watt lawsuit, the BIA knew or should have known of the jurisdictional limitations of the Choctaw Constitution. The BIA approved the constitution in 1983, with the jurisdictional limitations.

8. At the December 8, 1990 Choctaw Council meeting, the Council discussed signing a contract with the BIA for a law enforcement program. Bob Rabon, tribal attorney was present and told the Council:

The feds have jurisdiction over basic crimes. There are certain major crimes, .... At this time you could have a constitutional amendment voted on by the people to expand the jurisdiction of your court because your court is very limited jurisdiction. Basically, it decides disputes arising out of provisions of the constitution and enactments you pass here.2

Speaker Bertram Bobb responded:

You need to say that further and see what we can do to pass a resolution or something to enact one of these court systems. You might ask the rules and regulations committee to look into this.

Talihina BIA Superintendent Jack Pate was at this council meeting.

1. Lon Kile argued before the Court of Appeals, representing both the Chickasaw governor and the Choctaw chief. The late Kile was a law partner of Bob Rabon, tribal attorney. (back)

9. The Choctaw Council approved contracting the law enforcement program from the BIA on January 15, 1991, with Council Bill 040-91, amended by CB 074-91 dated March 9, 1991, amended by CB 079-91 dated April 13, 1991, amended by CB 138-91 dated August 10, 1991. Attachment 4. The law enforcement program was made a part of Aide to Tribal Government Contract CT G09 T 907 14. Attachment 5.

10. On June 19, 1992, the Choctaw Council passed CB-111-92 to approve a contract with the BIA for a CFR Court, Court of 0ffenses. Attachment 6. The "Tribal Court Program" was made a part of the Aide to Tribal Government Contract CT G09 T 907 14. Attachment 7.

11. On August 31, 1992, the Choctaw Nation submitted a proposal to the BIA to contract for a CFR Court. Attachment 8. On Page 4 of the proposal, "Court of Indian 0ffenses" has been stricken and "a tribal court system" has been handwritten in its place. Attachment 8.

12. A meeting was held on September 14, 1992, at the BIA, with Ed Lowery, Jack Pate, Larry Mings, Jack Chaney, Karen Ketcher and Lorene Phillips present, regarding the Choctaw Nation court contract. Notes from that meeting reflect that the name of the contract would be changed to "tribal court program.!' The program goals would be changed to "provide a tribal court for the Choctaw Nation of Oklahoma." Attachment 9.

13. On October 22, 1992, Dennis Springwater, BIA, wrote a memorandum to the Superintendent, Talihina Agency regarding the FY 1992 Contract Proposal. Springwater said, "When the agreement is written by Area office Staff, we need to omit language which references 'Court of Indian 0ffenses' and or "CFR Court'. The term 'Tribal Court' will be substituted." Attachment 10.

14. The Choctaw Council passed CB-99-94 on May 10, 1994, to

2. Choctaw citizens may not copy the Council meeting minutes. We may only view them at the offIce of the Tribal Council at the BIA building in Talihina, Oklahoma. Copies of the minutes are not attached for that reason. (back)

approve Court Rules for CFR Court of Indian 0ffenses, adopting Muskogee Area Office Court of Indian 0ffenses Court Rules. Attachment 11. The Council changed the statute of limitations for civil suits from three years to six months at this meeting. This was accomplished by amending Section 44 of the Criminal Procedure Code. Attachment 12.

15. At the Council meeting approving this resolution, Attachment 13, Speaker Randal Durant stated:

While we are talking about this, the Chief won his case with the lady at Hugo.3 Doug Dry tells the papers that we're going to bring it up in Tribal Court. Which is fine, but the time limit has expired. But we will find out. They never leave him alone or the Council either. Vote.

16. On September 4, 1995, Douglas Dry, Juanita McConnell and Rosie Lee Burlison were arrested by the Choctaw Nation Police for passing out literature. These arrests were made in spite of the lack of criminal jurisdiction of the Choctaw Nation, and the legitimacy of the Choctaw court. Bob and Robert L. (Bobbie) Rabon, tribal attorney and tribal prosecutor respectively, reported to the press that there was a tribal law banning passing out political literature an tribal lands. Attachment 14. Talihina Superintendent Larry Mings requested this resolution. Attachment 15.

17. Ms. Morrison requested the Choctaw criminal codes and the resolution revoking the right to pass out political literature on Choctaw lands from this office. Karen Ketcher, BIA Tribal Operations Specialist, responded on October 26, 1995, stating that the Choctaw Nation had adopted 25 CFR Part 11 as %their criminal codes by CB-138-91. Attachment 16.

18. Ms. Morrison, in the spring of 1996, made numerous Freedom of information Act requests from the BIA regarding the court and law enforcement programs. The answer to one of her FOIA requests contained a memorandum from Dennis Springwater, dated March 3, 1992, approving the Choctaw Nation's Criminal Code. Attachment 17.

The Choctaw Nation does not have criminal jurisdiction under the 1983 Constitution. Even if the tribe had criminal jurisdiction, the Council passed a resolution to contract for a CFR Court or Court of Indian 0ffenses, but the BIA signed a contract for a "tribal court" with the tribe. This creates a question of exactly what the court is, and what authority does it

3. The "case" referred to by Durant is Kobi Russ v. Choctaw Nation, Hollis Roberts and Linda Higginbotham, a civil sexual harassment suit dismissed from federal district court on sovereign immunity grounds on April 29, 1994.have. Even if the tribe had criminal jurisdiction and a legitimate court, there is a question of whether the criminal codes had ever been approved by the BIA prior to September 4, 1995. (back)

Dated July 22, 1996