BOB BURLISON,

Plaintiff,

vs.

FRANK KEATING, Governor of the State of Oklahoma, et al.

Defendants.

Case No. CJ-96-6410-61

Without waiving objection to this Court's having proper venue and jurisdiction, defendants herewith move the Court to dismiss Plaintiff's Application for Preliminary Injunction.

The threshold question for this Court, in determining the validity of the cross- deputization agreements, is whether, as a matter of law, this Court should decide if the Choctaw Nation of Oklahoma has the authority to contract with the BIA to provide law enforcement services and operate the C.F.R. Court of Indian 0ffenses.

Under the Choctaw Nation's Tribal Constitution adopted in 1979 which subsequently declared to have been not adopted under the guidelines of Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978), the Choctaw Tribal Court had the same jurisdiction as it has under the 1983 Constitution adopted under the Haroo guidelines. The question put to the Choctaw people was whether that Court (The Court created by the 1983 Constitution) should have "general civil, criminal and probate mattersw. The question was not whether there could be criminal laws or law enforcement in the Choctaw Nation to be enforced by the federal government nor was the question whether the BIA and the Choctaw Nation could contract to provide federal law enforcement and a criminal justice system within the Choctaw Nation.

There is no doubt the present Constitutional Tribal Court does not have criminal jurisdiction. However, the federal government does have jurisdiction under the Indian Crimes Act of 1976, 18 U.S.C. 1151 et seq. which vests jurisdiction in th e federal district courts over certain major felony crimes. The federal government also has criminal jurisdiction on Indian country under the Code of Federal Regulations, 25 C.F.R. Part 11. The Code of Federal Regulation (C.F.R.) Courts of Indian 0ffenses for each tribe are authorized by 25 C.F.R. Part 11, Sec. 11.2. 25 C.F.R. Part 11 specifically applies to the Muskogee area tribes which includes the Choctaw Nation of Oklahoma. 25 C.F.R. 11.1 (23).

25 C.F.R. 11.1 (23)(b) states thatthese C.F.R. Courts are "to provide adequate machinery of law enforcement for those Indian tribes in which traditional agencies for the enforcement of tribal law and custom have broken down for which no adequate substitution has been provided under federal or state law." The Indian SelfDetermination Act 25 U.S.C. 450 et seq. permits the Secretary to contract with the tribal government to operate the C.F.R. Courts for the BIA.

Section 11.1 (23)(e) states that "nothing in this section shaff prevent the
adoption by the tribal ordinances applicable to the individual tribe, and after such
ordinances have been approved by the Secretary of the Interior they shall be
controlling, . . Pursuant to that provision the Tribal Council of the Choctaw Nation
of Oklahoma has adopted a comprehensive criminal code which has been approved
by the Bureau of Indian Affairs.

The Indian Law Enforcement Act, 25 U.S.C. 2801 et seq. places the responsibility for providing law enforcement services in Indian country on the Secretary of the Interior. He performs this function through the Bureau of Indian Affairs (BIA). Section 2804(a) permits the Secretary of the Interior to enter into contracts with Indian tribes and/or local governments to also perform this function on behalf of the federal government on the tribe's reservation.

The Choctaw Nation has contracted with the BIA to operate the C.F.R. Courts under Indian Self-determination Act, 25 U.S.C. § 450 et seq.1 See also page one of the contract attached hereto as Exhibit Number One. Under paragraph 102 it states that " the contractor shall perform that portion of the Bureau of Indian Affairs, Tribal Court Program. .

The tribe has also contracted to perform the Secretary's law enforcement responsibilities under 25 U.S.C. 2804(a). The BIA, the Choctaw Nation and the local government defendants have contracted to share law enforcement resources by performing each other's duties and enforcing each other's laws in their respective jurisdictions under 25 U.S.C. 2804(a) which authorizes the Secretary to contract with local governments and Indian tribes; 74 O.S. 1001 et seq. which permits local governments to contract with federal agencies; and 74 O.S. 1221 et seq. which allows local governments to contract with Indian tribes. These state and federal statutes provide the authority for all three parties to contract.

Plaintiff's reliance on the absence of criminal jurisdiction of the Choctaw Nation's Constitutional Tribal Court to reach the conclusion that the C.F.R. Court of Indian 0ffenses of the Choctaw Nation is illegal and that lawlessness should exist in the Choctaw Nation is misplaced. There is no prohibition of criminal law enforcement in the Choctaw Nation in its constitution. On the contrary, Article IX, Section 4 provides that "[Tlhe Tribal Council shall enact legislation, rules and regulations not inconsistent with this constitution for the generalgood of the ChoctawNation and for the administration and regulation of the affairs of the Choctaw Nation."

The C.F.R. Court being complained of does not find its existence in the Choctaw Constitution. Instead, it is a federal court authorized by Congress and under the authority of the Secretary of the Interior (BIA) to provide a criminal justice system on tribal reservations where such system otherwise doesn't exist. 25 C.F.R. part 11 This was the case with the Choctaw Nation until it contracted the C.F.R. Court and began operating it for the BIA there was no criminal justice system.

As hereinabove set forth, Congress has specifically provided that the BIA shall implement such Courts and has authorized the Secretary to contract their operation. The same is true for law enforcement services on Indian country. The Choctaw Nation's Tribal Council has deemed the contracts to operate the federal court and to perform federal law enforcement duties through Council Bills 138-91 and 111-92, by implication, to be "for the general good of the Choctaw Nation".

In short, plaintiff asks this Court to exercise its jurisdiction to an intra-tribal constitutional issue over which there is no state jurisdiction. He asks this Court to decide matters of tribal law who's province lie "exclusively" with the Choctaw Nation's Constitutional Court under Article XIII, Section One of the Tribal Constitution or with the C.F.R. Court of Indian 0ffenses of the Choctaw Nation under the authority of the U.S. Congress and the Secretary of the Interior. The C.F.R. Court has already decided the issue contrary to plaintiff's position and as this matter is being considered there is an action pending in the constitutional Tribal Court of the Choctaw Nation for declaratory judgment on the same issue. It has been set for hearing on October 12, 1996.

Injunctive relief against the defendant cities and counties would indirectly, if not directly, would purport to enjoin the Secretary of the Interior and the Choctaw Nation from exercising fully and completely the criminal jurisdiction and law enforcement functions specifically mandated by the Congress. Plaintiff's invitation to this Court to intervene shojild be declined. If the courts of Oklahoma have jurisdiction to decide this matter, which defendants deny, there are several very capable state district courts in southeast Oklahoma that can do so.

The Choctaw Nation's constitutional court is not exercising criminal jurisdiction. The federal government is exercising criminal jurisdiction through a contract with the Choctaw Nation authorized by the United States Congress. These activities are lawful under both federal and tribal law.

The local governments who are named defendants in this cause have been authorized both by Congress and the Oklahoma Legislature to cooperate with the federal and tribal governments. Each of their governing bodies have, as have the governing bodies of the eleven counties and more than thirty towns and cities in the Choctaw Nation, enacted ordinances approving these agreements. There was good reason and a real need for these agreements.

For decades, there was a serious gap in law enforcement in Oklahoma. State and local governments had no jurisdiction on Indian country. Except for about a dozen felony crimes, the federal government did not have or exercise jurisdiction. Indian country in eastern Oklahoma consists of checker-board tracts and plots of land scattered over large areas. There might be a dozen or more tracts in a county or the same number of town lots in a city. State and local law enforcement agencies did not know what lands were Indian country or what lands were not. They answered calls for law enforcement from Indians or persons on Indian owned lands at the peril of being sued for exercising excessive jurisdiction if they asserted their authority on Indian country. As a result, many Indian citizens had little or no protection and lawlessness on Indian country went largely unredressed.

In recent years, the federal government created BIA law enforcement and C.F.R. Courts to handle misdemeanor crimes committed by Indians in Indian country. Some tribal governments, including the Choctaws, contracted to provide these services for the BIA.. However, they were woefully understaffed. The Choctaws have about twelve officers to cover eleven counties with over 10,000 square miles in area and over 30,000 Choctaws. State and local law enforcement agenci es still could not provide assistance. Nor could tribal police assist local non-Indian law enforcement. Thus, the concept of cross-deputization was spawned and a big problem was solved.

Several years of negotiations and much energy by federal, tribal and local governments went into hammering out these agreements. An injunction against the local governments will return all of southeast Oklahoma law enforcement to the untenable, hamstrung situation that existed in the past. Choctaw police will be unable to come to the aid of non-Indian law enforcement an' non-Indian country. Local government law officers must again face the difficult decision of whether to answer calls from Indians for fear the offense being committed may be outside their jurisdiction.

These agreements are relatively fresh. There is still some uncertainty among the parties, especially the local governments, as to what authority they have on each others turf. Their confidence is fragile and even if injunctive relief is only granted against these half dozen counties and cities, as a practical matter, it will chill the other thirty-five or forty signatories to the agreements. The mere filing of this action may have already accomplished that.

If plaintiff is successful, he and a small group of dissident tribal members, who's leadership includes opposing counsel, will have voided a very good and workable solution to a difficult problem that adversely affected thousands. Irreparable harm to whom?

1 The Court will note that the authorizing tribal legislation, CB-111-92 attached to Plaintiff's Petition as Exhibit 4 states that is "approval to contract the C.F.R. Court, Court of Indian 0ffenses established by 25 C.F.R., Part II. (back)

I hereby certify that on the 30th day of September, 1996, 1 hand delivered a true and correct copy of the above DEFENDANTS CITY OF CADDO AND CHOCTAW NATION OF OKLAHOMA'S MOTION TO DISMISS AND MEMORANDUM BRIEF IN OPPOSITION TO MOTION FOR TEMPORARY INJUNCTION to Douglas G. Dry.

By:

______________________

Bob Rabon