Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,
Juanita McConnell and
Rosa Burlison,

Defendants.

Case Nos. CR-95-01, CR-95-01, CR-95-03
CR-95-04 and CR-95-05

Comes now the Choctaw Nation of Oklahoma ("the Nation"), by and through its prosecuting attorney, Robert L. Rabon in the above styled and numbered causes and responds to the Defendants' Supplemental Brief in Support of Motion to Dismiss for Lack of Subject Matter Jurisdiction as follows:

PROPOSITION: THE CHOCTAW NATION IS NOT PRECLUDED FROM ENTERING INTO AN AGREEMENT WITH THE BIA TO ADMINISTER A CFR COURT OF INDIAN OFFENSES SIMPLY BECAUSE THE TRIBAL COURT CREATED BY THE CONSTITUTION HAS LIMITED JURISDICTION

Defendants' argument can be summarized as follows: First, the Choctaw citizens voted not to extend the jurisdiction of the constitutional tribal court to include general civil, probate and criminal jurisdiction when the Choctaw Constitution of 1983 was put into place. Second, notwithstanding the fact that a CFR Court of Indian 0ffenses and a constitutional tribal court are two separate and distinct entities, we should assume that they are one and the some. Perhaps the fact that, the same judge, court clerk and courthouse are used for purposes of both court systems has created this misunderstanding on the part of the defendants'. In sum, anytime the legislature and executive branches of the Choctaw Nation went to enter into a contract with the BIA or federal government, they must first determine how the citizens have voted on a similar but not necessarily the same issue. This determination dictates whether or not the legislature and executive branches have authority to enter into the proposed contract. Moreover, no tribe has the authority to contract with the Department of Interior ex rel the BIA to administer a CFR Court of Indian 0ffenses if that tribe's constitution does not expressly vest the constitutional tribal court with criminal jurisdiction. Defendants' have not cited any authority that comes close to supporting their position.

In Felix Cohen's Handbook of Federal Indian Law page 333 he writes "In 1883, the BIA initiated the practice of establishing Courts of Indian 0ffenses on reservations to provide law and order. These courts were intended both to fill the void caused by declines in traditional authority and to reduce the remaining power of traditional chiefs by creating a competing center of authority. The Bureau selected and paid the judges and police for these courts, thus exercising significant control."

"Courts of Indian 0ffenses are established in designated areas for the purpose of providing 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 an adequate substitute has been provided under federal or state law." Tillet v. Hodel, 730 F.Supp. 381 (W.D. Okla. 1990) The Muskogee area tribes, which includes the Choctaws, are among those specifically designated in the regulation. See C.F.R. § 11.1(a)(23).

In Tillet, the constitutionality of the Court of Indian 0ffenses was challenged by a member of the Kiowa tribe. Judge Alley wrote "it is well established that Congress does have plenary authority to legislate for the Indian tribes in all matters, including their form of government." citing U.S. v. Wheeler 435 U.S. 313.

In Iowa Mutual Insurance Company v. LaPlante 480 U.S. 9, the Supreme Court wrote "We have repeatedly recognized the Federal Government's long-standing policy of encouraging tribal self-government (citations omitted). This policy reflects the fact that Indian tribes retain attributes of sovereignty over both their members and their territory... Tribal courts play a vital role in tribal self-government (citation omitted)and the Federal Government has consistently encouraged their development. Although the criminal jurisdiction of the tribal courts is subject to substantial federal limitation (citation omitted), their civil jurisdiction is not similarly restricted."

Accordingly, Judge Alley wrote "The Court concludes that the creation of the Courts of Indian 0ffenses is a valid exercise of the power of the Secretary of the Interior as delegated to him by the Congress which holds plenary power over Indian tribes."

WHEREFORE, premises considered the Choctaw Nation of Oklahoma request said Motion to Dismiss for Lack of Subject Matter Jurisdiction be sustained in its entirety.

I hereby certify that on the 1st day of April, 1996, I mailed a true and correct copy of the above SUPPLEMENTAL RESPONSE BRIEF OF CHOCTAW NATION to Scott Kayla Morrison P.O. Box 637, Wilburton, OK 74578.