DOUGLAS DRY, JUANITA MCCONNELL,
and ROSIE BURLESON,

Plaintiffs,

VS.

UNITED STATES OF AMERICA, et al.,

Defendants.

CASE NO. CIV-97-113-B

Plaintiffs' Response in opposition to the United States' Suggestion of Lack of Subject Matter Jurisdiction and Motion to Dismiss Counts 4, 10 and 14 (FTCA Counts) contains three arguments which will be addressed in this Reply.

First, plaintiffs argue that the dismissal of a criminal case against plaintiffs in this District pursuant to the federal habeas corpus statute proves that they were being charged for federal rather than tribal offenses. Plaintiffs' argument is disingenuous since plaintiffs chose to file the habeas corpus petition pursuant to federal law. See Case No. CIV-98-011-S, Petition for Writ of Habeas Corpus ¶ 1. The Court was accordingly considering it under the jurisdictional provisions upon which petitioners relied, and the minute order dismissing the petition does not in any way pertain to the tribal versus federal criminal jurisdiction issue. Plaintiffs' first argument should be rejected.
The case upon which plaintiffs rely for the proposition that the tribal police officers were acting pursuant to federal law rather than tribal law when they arrested plaintiffs is distinguishable. The Eighth Circuit expressly acknowledged that "[i]t is doubtless true . . . that not every person employed to carry out a 'Public Law 638 contract' fits this definition [federal officer]." United States v. Young, 85 F.3d 334, 335 (8th Cir. 1996). The appellate court concluded that the terms of the particular contract in evidence in that case rendered the Sioux Tribe police officer a federal officer. The United States demonstrated in its Suggestion of Lack of Subject Matter Jurisdiction that the terms of the contract under consideration in this case gave the Choctaw Tribal police officers the authority to enforce applicable law only, which in the matter of the plaintiffs' arrests was tribal and not federal law. Young is accordingly of no help to plaintiffs.

Similarly, the cases cited in the third section of plaintiffs' brief do not support a finding that federal law enforcement occurred in this case. The Ninth Circuit in Means v. Northern Cheyenne Tribal Court, 154 F.3d 941, 947-49 (9th Cir. 1998), was concerned with the question whether the 1990 amendments to the Indian Civil Rights Act extending tribal criminal jurisdiction to all Indians, not just tribal members, should be applied retroactively. There is no issue in this case regarding the applicability of the Indian Civil Rights Act, as amended. Means simply has no bearing on the issues in this case.

Nor can plaintiffs properly rely on responses to requests for admissions in a cited court case from this district. The cited response to Request for Admission No. 3 concerns a broad general statement of jurisdiction which has not been shown by plaintiffs to relate in any way to the specific issues present in this case. It is plaintiffs' burden to demonstrate that the other case involved the precise issues and facts facing this Court in this case. They have not done so. The cited admission is accordingly irrelevant and cannot bind the United States in this case.

For the foregoing reasons and those contained in the United States' Suggestion of Lack of Subject Matter Jurisdiction and on the basis of the cited authorities, Counts 4, 10 and 14 of the Amended Complaint should be dismissed in their entirety.

I hereby certify that on the 22nd day of January, 1999, a true and correct copy of the foregoing was mailed, postage prepaid, addressed thereon as follows:

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

Scott Kayla Morrison, Esq.
Douglas G. Dry, Esq.
P.O. Box 637
Wilburton, OK 74578