CHOCTAW NATION OF OKLAHOMA,
Plaintiff

V:

DOUGLAS DRY, BOB BURLISON, ROSIE LEE BURLISON, and JUANITA MCCONNELL,

Defendants.

C 96-02

Now, an this 12th day of October,, 1996, the above entitled cause comes on for HEARING, before the Honorable James Wolfe, Mitchell Mullins and Juanita Jefferson, sitting in and for The Choctaw Tribal Court, Choctaw Nation, State Of Oklahoma.

APPEARANCES:

Mr. Bob Rabon (On behalf of the Choctaw Nation) Attorney at Law

PO Box 726 Hugo, Oklahoma 74743

Ms. Scott Morrison (On behalf of the Defendants) Attorney at Law

PO Box 637 Wilburton, Oklahoma 74578

DOUGLAS G. DRY

Direct Examination by Ms. Morrison -------------------- 23

JACK PATE

Examination by The Court ------------------------------ 27
Direct Examination by Mr. Sanders --------------------- 28

JUDGE WOLFE: The Tribal Court of the Choctaw Nation will be in session. Who are you? Who requested you to be here, young lady?

COURT REPORTER: Mr. Dry.

JUDGE WOLFE: What's your name?

COURT REPORTER: Jill Mabry.

JUDGE WOLFE: Are you a licensed court reporter?

COURT REPORTER: Yes, I'm a certified shorthand reporter for the State of Oklahoma.

JUDGE WOLFE: Do you have the tape recorder on, Donna?

DONNA HEFLIN: Uh-huh. Do you want me to turn it off?

JUDGE WOLFE: Is it on?

DONNA HEFLIN: Uh-huh.

JUDGE WOLFE: Okay. Each one of you make your appearances for the record, please.

MR. RABON: Your Honor, I'm Bob Rabon,, I appear on behalf of the petitioners.

MS. MORRISON: I'm Scott Morrison. I'm here on behalf of the defendants: Bob Burlison; Douglas Dry; Rosie Burlison; Juanita McConnell. That's all.

JUDGE WOLFE: Go ahead, Mr. Rabon.

MR. RABON: Your Honor, this action filed with this court arises out of some apparent disputes regarding the authority of the Choctaw Nation Tribal Council to enter into 93-638 contracts under the Indian Self-Determination Act with the Bureau of Indian Affairs for the operation of the CFR Court of Indian 0ffenses and to provide law enforcement services within the Choctaw Nation.

At least one of the respondents has filed an action in the District Court of Oklahoma County contending that the, all of the cross deputization agreements that have been entered into are void because the 1983 constitution did not grant criminal jurisdiction to this court. And we concede that, there is no doubt that this court does not have criminal jurisdiction. It has been raised in the CFR Court of Indian 0ffenses, which is operated by the Choctaw Nation, by the other respondents. It may have been raised in some other forum, maybe with the BIA and I think maybe with the BIA. I think there is some action filed up in the Chickasaw Nation and I don't know where else.

But we have filed a brief with the Court, filed a petition, we filed a brief, we haven't received any kind of response. I don't know whether respondents intended to respond in writing or not but our brief pretty well sets out our position. The -- as I said, there is no doubt that under the 1983 Referendum Election, 182 election, criminal jurisdiction was not, was not conferred.

JUDGE WOLFE: Just a minute. Donna -- never mind I'll do it. Would he go close that door, please. Go ahead, Mr. Rabon.

MR. RABON: Under that referendum, there is no doubt that the court, the Tribal Court of the Choctaw Nation of Oklahoma, which I generally refer to as the constitutional court, was not granted general civil and criminal jurisdiction. In fact,,.this court's jurisdiction is very, very limited-* As stated in Article 13, Section 1 of the constitution, this court has exclusive jurisdiction to decide disputes arising under any provision of this constitution or any rule or regulation enacted by the Tribal Council. The Tribal Council enacted at least two council bills that implemented -- one of them is Council Bill 111-92 -- if I may approach the bench

JUDGE WOLFE: Sure.

MR. RABON: -- to provide a copy of these to the Court. Ms. Morrison.

MS. MORRISON: Thank you.

MR. RABON: And Council Bill 138-91 -- I'm sorry my secretary made the wrong copy. I only have one copy of this Council Bill 138-91 and if the court.will indulge me, I will just provide that one copy and maybe we can make copies later.

The '92 bill authorized the Choctaw Nation to enter into a contract with the Bureau of Indian Affairs to operate the Court of Indian 0ffenses. CFR Courts are federal courts operated, in
some instances, by the BIA on some -- in some-areas by the Indian Tribe that is in the area where the Court is required to serve.

The other Council Bill authorizes a contract between the Tribe and the BIA to provide law enforcement services. The -once those contracts were entered into and the Tribal police were organized, the Tribe and the Bureau of Indian Affairs and various state -- various county and local governments within the ten and a half counties of the Choctaw Nation began negotiations to try to find a way to provide cross deputization. After several months, probably a couple of years, agreements were entered into. I think there has been about fifty agreements entered into within the Choctaw Nation. Those agreements have been approved by the Oklahoma Legislature through the state Tribal Relations Committee that acts pursuant to the state Tribal Relations Act. They have been approved by the Attorney General of Oklahoma and the Governor of the State of Oklahoma.

Respondents have challenged those in state court and they are somewhat at risk, my experience in dealing with state courts when it comes to Tribal matters, causes me to have some concern. State courts really like to get involved in Indian affairs every chance they get and it has been my experience and they are generally not very well schooled in Federal Indian Law. But so we are concerned that we are going to get some court that thinks it has jurisdiction over the Choctaw Nation of Oklahoma since it is named a party defendant in this action that was filed in Oklahoma County that has been transferred since to Atoka County. So we are concerned that these cross deputization agreements are at some risk; the Tribe sovereignty is at some risk and we think that there is only one Court that can resolve this dispute and that is this Court because the Tribal Constitution provides that you have the exclusive jurisdiction to decide such disputes and this is nothing more than whether or not the Tribal Council has authority to approve these agreements.

The people didn't vote that we wouldn't have law enforcement back in 1983; they didn't vote that we wouldn't have law enforcement in the Choctaw Nation. They didn't vote that we wouldn't have courts to enforce the law back in 1983. They voted that this court, this court would have limited jurisdiction. So we think it is a rather simple straightforward issue and we would ask the court to make a ruling as to whether or not the Tribal Council, in the exercise of its inherent and constitutional authority to enact laws for the betterment of the health, welfare and so on of the Choctaw people and there is a specific constitutional provision which we cite in our brief that authorizes that and we think that -we think these -- we think we have proper law enforcement; we think we have a properly constituted CFR Court.

MS. MORRISON: Well, Your Honor, a few basic items, I had issued subpoenas for Curtis Wilson and Larry Mings, both Tribal members and both BIA employees, and I was informed yesterday by Sharon Blackwell at the solicitor's office that those subpoenas would not be honored. And so I would move that this Court hold Curtis Wilson and Larry Mings in contempt -okay. Then Curtis Wilson.

JUDGE WOLFE: What now? Now wait a minute. Run that by me again. Now, what?

MS. MORRISON: Okay. I had issued subpoenas and -the return of service is ready to be filed and for Curtis Wilson and Larry Mings, both -

JUDGE WOLFE: Okay. Who is Curtis Wilson?

MS. MORRISON: Curtis Wilson is the contract officer for the Bureau of Indian Affairs and a Choctaw Tribal member.

JUDGE WOLFE: Where does he reside?

MS. MORRISON: He resides in Muskogee.

JUDGE WOLFE: And he's employed by the Bureau of Indian Affairs?

MS. MORRISON: Yes, he is.

JUDGE WOLFE: As what?

MS. MORRISON: He's a contract officer. He signs the contracts, the 638 Contract for the law enforcement and the court system.

JUDGE WOLFE: Who else?

MS. MORRISON: And Larry Mings. Larry Mings is Talihina Superintendent for the Bureau of Indian Affairs, residing at Talihina.

JUDGE WOLFE: Who told you that the subpoenas would not be honored?

MS. MORRISON: Sharon Blackwell at the solicitor's office. She called me yesterday afternoon, 3:30, 4:00.

MR. RABON: Your Honor, obviously, I don't represent Mr. Mings or Mr. Wilson but if I could make an observation just as amicus curi here on that issue, I wonder where the authority comes from for these subpoenas. Most courts have subpoena power that is granted to them by the legislature or the government in which the court serves; for instance, the Oklahoma Legislature has given state district courts subpoena power, perhaps counsel can

JUDGE WOLFE: Okay. That's fine.. Were they filed through this Court?

MS. MORRISON: Yes, they were, the return of service is back on Donna's desk, ready to be filed.

JUDGE WOLFE: Let me see it.

MS. MORRISON: Your Honor, I have just been informed that Larry Mings is here, so I would withdraw that, the motion to hold him in contempt. But Curtis Wilson is not and I would also point out that the authority to subpoena is not necessarily from this court, that all the Tribal governments have to abide by the Indian Civil Rights Act, which is a federal act.

JUDGE WOLFE: I don't think this Court has subpoena power. I don't think I have got the authority to hold anybody in contempt of court. I hate to say that because I can see some lessening of my authority but now, you know, I don't -- in the first place--- go ahead, say whatever you want to say. Go ahead.

MS. MORRISON: Oh, well, I was just going to say that in the petition, then that would dismiss, basically, one of the counts in the petition because Mr. Rabon is asking this -asked this Court in the original petition to file, to find Mr. Burlison and Mr. Dry in contempt and if you have no contempt power

JUDGE WOLFE: Then maybe that -- maybe it would dismiss it, you know, I don't know. Maybe that would, maybe that would be the result of the case. Maybe that would be the end result of the case.

MR. RABON: Your Honor, there is no doubt that this court has the authority to administer its own affairs and conduct orderly affairs of the court. I doubt that -- I doubt that the court has injunctive power, even though that is pled in our-- pleading, it doesn't necessarily confer the authority on you.

JUDGE WOLFE: Excuse me, Mr. Rabon, I tell you what we are going to do: Now, this Petition for Declaratory and Injunctive Relief has been filed; he's made an argument, you are going to make an argument; if you want to brief it at the end of the argument, I'm sure that I will let you do it. And it probably should have been done by brief anyway. But you all want to appear, everybody wants to appear and make their arguments in person and that's fine. I don't have any problem with that.

I'm not going to issue any bench warrants at this point in time, if you want to make an argument concerning this petition, then you can do that.

Just a minute. I'm up here making all these statements, this is a three judge court, if either one of you have any statements you want to make, you are certainly free to do that. I'm not going to hold anybody in contempt of court. If these two judges want to do that, that's fine. I'm not going to do it at this point in time. At the end of the day or when this hearing is over or when I have had enough of it, I might hold somebody in contempt but at this point, I'm not going to do it. So if you want to present an argument, now is the time to do it.

MS. MORRISON: Okay.

THE COURT: Go ahead.

MS. MORRISON: Well, as Mr. Rabon was saying that this court is a court of limited jurisdiction and some of the things that he had asked for, which it sounded like there was a petition and the brief kind of amended that and now it is, since the court has no power to hold anyone in contempt, then that kind of changes the whole complexion of everything.

But this Court has been around since 1979. You have a history, you have cases that have been decided in the.past and they are filed back in Donna's office. So how can this court enforce an order relating to another court or declare another court valid. That is basically what Mr. Rabon is asking you to do. It would be the same as asking, saying, making an order that the courts in Arkansas are valid or the courts in Guam are valid or it would be the same as saying the state court can declare any court in the Choctaw Nation valid or invalid. So that is something that I don't believe that this court has the jurisdiction to do.

And why bring this action here? The CFR Court has had ample opportunity to decide on this issue. It has been briefed and briefed and argued. And also, Mr. Rabon is right, I have filed an administrative complaint with the Bureau of Indian Affairs and that has been pending since February. They have had ample opportunity to rule on whether or not the CFR Court of the Choctaw Nation is valid.

And the council resolutions, yes, there has been council resolutions to sign contracts with the Bureau for court and law enforcement but it doesn't make the CFR Court or the law
enforcement constitutional. Because those come from the Bureau of Indian Affairs -- the validity of the CFR Court comes from Bureau of Indian Affairs, it does not necessarily come from the Choctaw Nation.

And this Court has to look at its own history. In the past when this Court has been confronted and asked to hold a Choctaw citizen Accountable for doing something or not doing something, it has always been told that it doesn't have jurisdiction. And I would suggest you look at Ruth Morris versus Hollis Roberts, which is in the filing cabinet back there.

Okay. And also -- well, since the contempt of court count on, in the petition as originally -- is gone, then I was going to make the argument that the Choctaw, state and federal constitutions all specifically say that citizens have the right to seek redress and if' you had made a ruling saying that Bob and Doug could not seek redresses, then you are basically violating all those constitutions, including to the Choctaw Constitution.

Mr. Rabon in his pleadings was talking about treason; we have no modern definition of treason. When you look at the Choctaw Criminal Codes that were compiled and edited by Bob RAE& in October of 191 and it is very comprehensive and it goes on and includes many things but it does not include treason. However, if you look at our history, back in the old
Choctaw Nation, you will find this particular act. This is an act of treason that was approved in 1839 and it was approved in October, which I find interesting, here it is October and we are talking about treason in October. But if you read it, it says that it is basically our land. A treason is anyone that endangers our land, it is land based definition; we also passed a law in 1888.

And if you will remember our history in 1839, that was just nine years after removal, when our chief recklessly abandoned us, sold us out and sold our land and so in reaction to that and also we signed a treaty with the Chickasaws and so it is in reaction to that. And 1888 was just before allotment, so that was the history behind this one. And again, it is all land based. Anyone who is trying to endanger the land base could be held in contempt or held accountable for treason.

If you will notice, the punishment was rather severe, it was death. We killed people for that. Now state, in the state court, Mr. Rabon made reference to what we had filed and I use a royal "we", filed in state court. What we asked the state court to do was just really very simple -- if I can find it -here's our application. In our prayer, we had asked the court that defendants: Atoka Police Department; Atoka County Sheriff's Office; Pushmataha; Antlers -- but Antlers is going to be dismissed -- Caddo; Durant and Bryan County and their agents are enjoined from serving warrants. That's all we
asked.

JUDGE WOLFE: Wait. What prayer -- what case are you referring to? What prayer?

MS. MORRISON: We are talking about the case that, the injunction that has been filed and it was filed in Atoka County or Oklahoma County. It is in state court.

JUDGE WOLFE: Nothing that has been filed in this court?

MS. MORRISON: No, no. But this is what we are asking for. We are not asking the state court to enjoin the Choctaw Nation from doing anything. We are only asking that the state court exercise jurisdiction over state agencies on state land. That is all we are asking. We are not asking the state court to enjoin the Choctaw Nation from doing anything. And Bob and Doug filed the petition because -- in state court because the Tribe made it possible. The Tribe signed an agreement, these cross deputization agreements with the Bureau of Indian Affairs and with these local agencies and that's what made it possible. So we had the opportunity and'- we felt the responsibility to challenge those agreements in the appropriate forums.

And Mr. Rabon would have you shocked and appalled that the state would have anything to do with the Tribe. But the reality is that the state always has something to do with the Tribe in one way or another. You know, the Choctaw Nation Enterprises, whose having a meeting this morning, they are incorporated under Oklahoma Corporation Law and we signed a compact for tobacco sales; the most recent is we signed a compact for gas sales. And if you really look at these criminal laws, they basically mirror state criminal laws. So the state, there is always interaction between the state and the Tribe. The housing authority, they evict people and things like that using state court, so there is always this interaction between state and Tribe.

Now, I think there is a lot of confusion over this CFR Court, Tribal Court, Constitutional Court. And like Mr. Rabon, I hold this court is a Constitutional Court, too. So let's talk about the Constitutional Court first because that is easiest for me to keep in my mind. And you know what, you can talk about the known universe and then you can talk about Eastern Oklahoma and if you look at the textbooks that law schools use in Indian law classes, we have our own section. There is a section dealing with Eastern Oklahoma and one of the things that made us unique is these Constitutional Courts. Almost all the tribes in Eastern Oklahoma have a provision very similar to the one in ours that says that we have a court that is limited to interpreting the constitution.

And then you have the Tribal Courts. The Tribal Courts are established pursuant to, excuse me, a tribe's inherent sovereignty and very limited input by the Bureau. Basically, the Bureau input in Tribal Courts, a true Tribal Court, is money, they fund them under 638 Contracts. But as far as hiring, firing, things like that, for a true Tribal Court then you have -but they are established and limited by the Tribal Constitution. In our case, Choctaws have had criminal jurisdiction over our members since from the time the rocks were warm till 1983 when we adopted this new constitution. And under that constitution we've limited criminal jurisdiction and until that jurisdiction is changed then we cannot have a Tribal Court, a true Tribal Court which has general civil jurisdiction and criminal jurisdiction and probate jurisdiction.

That leaves the CFR Courts. Now, the CFR Courts, they are established under 25 CFR Part 11. Now, they have limited input by Tribal governments and that input is only if it is approved by the Bureau of Indian Affairs; like these laws, these criminal codes that were approved in 1981 -- or 1991, they had to be approved by the Bureau and those codes were approved by the Bureau. But a lot of how they are setup, the personnel, they are all, they are all regulated by Part 11.

So I think -- this CFR Court, Tribal Court, it's really, -- there is a lot of confusion and part of the confusion is because I think that they, "they". the powers that be treat them as if they are interchangeable. They are not. They are two separate courts, two distinct courts. So let's look at -yeah, when we submitted -the counsel passed a resolution saying, okay, we are going to have a CFR Court and yeah, this Council Bill 111-92, to approve -- approval to contract the CFR Court, Court of Indian 0ffenses established by 25 CFR Part 11.

So after that we submitted this proposal, which is a proposal to contract under Public Law 638. Now, Public Law 638 is actually the Indian Self-Determination Act, which was passed in 1975. So okay, this is the cover sheet and then the next page shows what we had contracted to do. Now, I get this from the Bureau files. I'm known as FOIA queen-because I do so many of them but this is what I found when I went through the records. And they had originally said the major goal of this proposal is to provide a Court of Indian 0ffenses for the Choctaw Nation, Choctaw Nation, ya-ta-da, ya-ta- da (phonetic). And someone, and I have no idea who scratched out Court of Indian 0ffenses, said a Tribal Court judicial system and criminal misdemeanor and civil disputes, so that is in the files.

And then I go dig and there is handwritten notes on the meeting, this was -- the meeting was September the 14th, 1992, Ed Lowery, Jack Pate, Larry Mings, Jack Chaney, Karen Ketcher, Lorene Phillips; they were at this meeting to discuss this proposal that the Tribe had submitted. Tribal Courts Program, name o:~`contract, CFR Court is at Ada. It's a Tribal Court for the Choctaw Nation of Oklahoma, criminal misdemeanor and civil disputes. Program goals: The major goal of this program is to provide a Tribal Court for the Choctaw Nation of Oklahoma which has judicial jurisdiction over criminal misdemeanors and civil disputes. Now, that -- apparently that was memorialized in a memo. Agency will go back and work with Tribe for a revision; so apparently that proposal was sent back. And that is just handwritten notes from Bureau personnel but it is more obvious because Dennis Springwater reduced that to a memo about the court system and this is October 22nd, 1992, it is to the superintendent -- who was superintendent in 1992 -- Jack Pate. The Choctaw's Tribal -- the Choctaw Tribe's proposal for a contract for a Tribal Court has been approved but when the agreement is written, we need to omit language which references Court of Indian 0ffenses or the CFR Court and the term Tribal Court.

So when you look at this, the Bureau is confused; the Tribe is confused. We have -- if you look at all these resolutions, they all say passed by the council; they all say that to contract for CFR Court; to approve codes of CFR Courts; they all say CFR Courts. Yet the Bureau says it is a Tribal Court. So they are not -- but they are two separate Courts, where the jurisdiction comes from, the authority comes from. But they are trying to treat them as if they are one in the same aid they are not. So there was no like meeting of the minds when they did this. And like I said, they are not interchangeable, they are two separate courts.

Now, this is the new CFRs and at the beginning they had just amended, amended them and at the beginning, this is a comment, to Section 11.25 -- 11.205. Okay, the two comments said that there was some conflict between the Indian Civil Rights Act. Now, the Indian Civil Rights Act is a federal act which is a limited first amendment guarantees of Tribal members and it applies to Tribal governments. So if it is a Tribal Court, then Indian Civil Rights Act would apply; if it is a federal court, then the U.S. Constitution applies. And that is what this comment said that the Courts of Indian 0ffenses are federal instrumentalities and are bound not only by the Indian Civil Rights Act but by the requirements of the U.S. Constitution as well.

It also says, it also says that the Secretary of Interior or his designee must approve Tribal ordinances. This recommendation was not, because they wanted to delete that and said it was not adopted because Court of Indian 0ffenses are federal instrumentalities and as such the laws they enforce cannot be inconsistent with federal law and the U.S. Constitution. So the Secretary must continue to approve all these ordinances and that is the laws, that is the laws that they must approve.

Now, Mr. Burlison -- this is, this is the language the governing language of Part 11.100(e) and it says that the Assistant Secretary of Indian Affairs or his or her designee
shall be enforceable after they have approved these ordinances, they are enforceable in the Court of Indian 0ffenses. Now, Mr. Burlison was arrested for Council Bill -- for violating Council Bill 113. The problem with that is that Council Bill 113, it says - - and again FOIA queen, I had made the request that I get any records that shows that the Council Bill 113-was approved -- and he says a complete, and this is a letter from Larry Mings, a complete and thorough search of the Bureau of Indian Affairs, Talihina Agency, was conducted and no records responsive to the above request was found. So Council Bill 113 was never approved. So because Bob is at risk, he filed -- of being held accountable for a law that was not, that in his mind-and my mind was not valid, we filed the injunction in-state court.

And also in Part 11, the magistrates must be approved -well, must be appointed by the commissioner. Well, in all the. documents that I have gone through, I have yet to find that but I heard yesterday they actually have been approved but it has been recent. And also the prosecutors, there is -- if this.was a true CFR Court and not a Tribal Court, then the prosecutors would have, there is provisions for the prosecutors and at this time I would like to call Douglas Dry to explain the process to appoint prosecutors in CFR Courts.

JUDGE WOLFE: Okay. Go ahead. Just tell me what you are going to say, Mr. Dry.

MR. DRY: Through questions? Or are you talking about just go through the presentation?

JUDGE WOLFE: You want to make a statement to the Court; is that what you are going to do?

MR. DRY: I was going to answer questions as a witness, Your Honor.

MR. RABON: Your Honor, we are going to object on the grounds of relevancy. I don't know what relevancy that the issue of appointment of prosecutors has to whether or not the Tribal Council has a right or authority to contract with the BIA for the CFR Court; perhaps someone else in this room knows what it is but I don't.

JUDGE WOLFE: Address the issue of the relevancy of appointment of the prosecutors.

MS. MORRISON: Well, I think the basic issue is is that is this CFR Court which you are going to rule on today a CFR Court or a Tribal Court. It is obviously not a Tribal Court and Mr. Rabon is trying to have this court issue an order saying that it is a CFR Court. And if it is, then there is a lot of things that they have to go through, which they have not done. So they obviously cannot be a CFR Court. So what are they? What-is it?

JUDGE WOLFE: Okay. Go ahead.

MR. DRY: Am I going to be allowed to answer questions then? I'm an officer of Court, I'm willing to swear in.

JUDGE WOLFE: I'm not asking you to be sworn, Mr. Dry. Go ahead.

DOUGLAS DRY

Called as a witness, was allowed to testify as an officer of the court and testifies as follows, to-wit:

DIRECT EXAMINATION BY MS. MORRISON:

Q. Mr. Dry, have you submitted proposals to other -- as a prosecutor in other CFR Courts?

A. I have in 1993, 1994 and 1995.

Q. Okay. For what agencies?

A. I was -- I submitted in 1993 to the Wewoka Agency, which is also under the area director at Muskogee, same as Talihina Agency for the Choctaw Nation. I was selected as the CFR prosecutor for that Court and did that and prosecuted in the CFR Court. I was hired by the BIA. I submitted -- I had to go through their process where they advertised for bids and you must go through a process of submitting an application as a result of this BIA solicitation and they will set out the scope of work and also the statement of work and you have to show how you can comply with that. And then you are also subject to the by Buy Indian Act, which is under Title 25, United States Code, Section 47, which is basically just kind of the Indian Preference Act for those people that answer to the solicitation of contracts.

And in part of that process, you have got to -- you have got to have a representation declaration. There is actually an application that you fill out and you show that you are a member of a federally recognized Tribe; that you either own a sole proprietorship or you own 51 percent of a particular law firm or entity that you are working with to provide those services to qualify under the Buy Indian Act. The Secretary of Interior,, they can waive Indian preference, if they just can't find suitable qualified Indian candidates for a contract but that has to be again waived. But once you file the application, submit your resume, and I submitted my resume and that is the process that I went through and Mr. Fields was the one that had to actually hire me and approve -- he was the agency superintendent, I might add, at the time and I guess Merritt Youngdeer was the final authority on that at the area director's office.

MS. MORRISON: Thank you, nothing further.

JUDGE WOLFE: Mr. Rabon, do you have anything?

MR. RABON: No, I don't have anything, no.

THE COURT: Go ahead, ma'am.

MS. MORRISON: Okay. Excuse me, I've been coming down with the crud.

JUDGE WOLFE: What?

MS. MORRISON: I said: Excuse me, I've been coming down with the crud.

THE COURT: That's fine, ma'am, go ahead.

MS. MORRISON: The-- in The Court of Indian Appeals, which is the appeals court for the CFR Court for the Choctaw Nation, has basically already ruled on the issue of jurisdiction of that court and in Morrison v. Choctaw Nation, which was the voter registration case filed in 1994 in Morrison v. Choctaw Nation and the cite is from the Indian Law Reporter and it was actually, it came out in the June 1996 issue of the Indian Law Reporter but the case*was actually decided in 1995. It said the jurisdiction of the Tribal Court is defined by the constitution, this exclusive jurisdiction is limited to decide disputes, which is exactly what we have been saying.

And we didn't -- Morrison is me, Scott Morrison v. The Choctaw Nation, it was a civil matter and I had requested, I wanted the voter registration list and filed it in the Court of Indian 0ffenses for the Choctaw Nation and they ruled, the trial court ruled against me and I appealed to this Court of Indian Appeals and the ruling was actually very short but this is the relevant part. They ruled on the jurisdiction, it is limited to the constitution. There is no criminal, general civil, et cetera, that in my mind it is a done deal, it has already-been decided on.

And you know, whether or not this Court is valid, the CFR Court is valid and is an actually functioning legitimate court, one of the things I would suggest you do when you go back there and make your decision is you open some file drawers. The cases are back there, open the one that says criminal, count the cases. This Court has been active and running since 194, 192, it has been awhile, just count the cases. Also, look an the civil side, count the cases. And also, count how many, how many times agencies or entities of the Tribe have used the CFR Court. As far as I can tell, only one has used the court. So is it valid? Does the Tribe consider it valid? No, I don't think it does.

I -- again, apparently we don't have subpoena power. I had asked the councilmen to be witnesses. They are in their council meeting, I suppose, they are obviously not here. Jack Pate, I believe is in the courtroom, I would like to call him as a witness.

JUDGE WOLFE: What is he going to testify to?

MS. MORRISON: Jack Pate used to be superintendent at the Talihina Agency. He was present in December of 1990 when the Tribal Council was discussing the contract that to setup a CFR Court and I would like to -

JUDGE WOLFE: You would like to what?

MS. MORRISON: I would like to ask him some questions concerning that.

JUDGE WOLFE: Mr. Rabon.

MR. RABON: Your Honor, we are going pretty far afield here. The court has before it the actual contract. I have seen these handwritten notes and that sort of thing and I don't really know, perhaps there was some negotiations that went on, I don't know and perhaps they are a part of the file but the ultimate contract that was actually entered into is before Your Honor and the ultimate contract that was approved by the Tribal Council is before the court. I call this sort of ~squirrel hunting that we are doing here and you know, if Mr. Pate has something that will alter, that would alter the terms of this contract that you have before you or something like that, maybe, it might be relevant, I don't know.

JUDGE WOLFE: Go ahead, ma'am.

MS. MORRISON: Okay. I would call Mr. Jack Pate.

MR. DRY: Your Honor, if I might grab this chair for Mr. Pate.

JUDGE WOLFE: Sure.

Raise your right hand, Mr. Pate.

Called as a witness, was first duly sworn to tell the truth, the whole truth and nothing but the truth, testifies as follows, to wit:

EXAMINATION BY THE COURT

Q. State your name.

A. Jack Pate.

Q. Where do you live, Mr. Pate?

A. Talihina.

Q. How are you employed, air?

A. I'm retired.

THE COURT: How nice. Go ahead, ma'am.

Q. Okay. Mr. Pate, were you present at the December, 1990 council meeting when the contract for the CFR Court, the court system was discussed?

A. I would say I was, I attended about all the council meetings.

Q. Okay. Do you remember part of the discussion that went on at that time? At that time, you were with the Bureau of Indian Affairs; is that correct?

A. Yes, ma'am. No. I don't recall it but you know, it's been awhile.

Q. Oh, okay.

A. I was there but I don't recall exactly.

Q. You were also with the Tribe or with the Bureau when the prosecutors, hiring the prosecutors and the contracts for the prosecutors for the CFR Court was being processed, were you not?

A. Probably, I don't know those dates, again, exactly. What date was that?

Q. I don't know, I have never seen any documents on the dates.

JUDGE WOLFE: Mr. Pate, do you have any personal knowledge of these things? Can you testify that you -

MR. PATE: Well, yeah -

JUDGE WOLFE: Wait a minute. Can you testify that you personally remember these things and personally remember these-- what went on? Do you have personal memory of that?

MR. PATE: No, sir, not the dates, you know, the exact-- I am aware of what you are talking about in general but not the dates.

JUDGE WOLFE: Go ahead, ma'am.

Q. Okay. This December 1990 council meeting, I have gone through the minutes and according to the minutes you were present and the council was asking you questions and there was a lot of discussion, as there should have been; but also during the meeting, Mr. Rabon said that if the Tribe ran the Court system you would have to have a constitutional amendment voted on by the people to expand the jurisdiction of your court because your court is very limited in its jurisdiction, basically it decides disputes arising out of the constitution. Do you remember that as Tribal attorney?

A. No. not word for word but like I said, that's been awhile. I do remember the process in general but not any particular wording or anything, I surely don't.

Q. But was that a concern of the Bureau of Indian Affairs?

A. Yes, ma'am, certainly was.

Q. And how did the Bureau get around that? How -- you were told in 1990 that the court, that the Tribe didn't have jurisdiction to setup a court without a constitutional, by the Tribal attorney yet now we have one. So how did that happen?

MR. RABON: Your Honor, I'm going to object to this line of questioning. First of all, it is very deceptive and very confusing. Counsel here is asking him questions about the Tribe forming a Tribal Court and there is Tribes can do that under certain circumstances, I think there is a federal act to that effect.

THE COURT: What is your objection, Mr. Rabon?

MR. RABON: Well, we are talking about a CFR Court here. We have a contract, it defines what this court is and but she's asking him about oranges instead of apples. The issues here is: Did the council have the authority to contract for the CFR Court.

JUDGE WOLFE: Objection will be sustained. Ma'am, you need to confine your remarks down to, in the first place, to questions of the gentleman and not arguments concerning what he's saying. And also, confine your questions to matters relevant to why we are here, please.

Go ahead.

(By Ms. Morrison) Okay. CFR Court. Mr. Pate, were -- do you have any memory of the process for hiring the prosecutors for the CFR Court?

MR. RABON: Objection, Your Honor, relevance.

JUDGE WOLFE: You are probably right. But do you have any memory of that conversation, Mr. Pate?

MR. PATE: Would you repeat the question, please.

(By Ms. Morrison) Do you have any memory of the hiring process for the prosecutor in the CFR Court of the Choctaw Nation?

A. Not really, I really don't.

Q. Do you have any memory of hiring the magistrates?

A. No, ma'am, it is Tribal.

Q. Okay. If it is Tribal, then who hired them? Do you know?

A. I assume through the Tribal Council.

Q. Is that what normally happens in CFR Courts, that the Tribe hires them?

A. No, like you know, we are fairly new at CFR Courts in the Choctaw Nation, so I couldn't answer that.

MS. MORRISON: I have nothing further. Thank you.

MR. RABON: I have nothing, Your Honor.

JUDGE WOLFE: You may step down.

Go ahead, ma'am.

MS. MORRISON: Okay. Well, to sum it all up, again, and the whole point is: Is it a CFR Court? Is it a Tribal Court? Does the council have authority? The council can sign contracts, they have authority to pass resolutions, they can sign contracts; I mean they can do all of that. The problem is that what they are attempting to do, is that valid? That is a whole different ball game. And a couple of things, there is -the people have spoken on the criminal jurisdiction, civil jurisdiction and the jurisdiction of the Tribal Court. We spoke, we were very loud and clear in 1983. Now, we said you cannot -- we will not have a Court that has this jurisdiction over us, we spoke.

Now, the council, by passing this resolution, attempted to do two things: One, they attempted to expand the jurisdiction that has been limited by the people. The council cannot expand the jurisdiction of any court that they try to setup without the will of the people, particularly because we have this history.

The second thing that they tried to do is basically say it doesn't matter what our people say because the jurisdiction, the external -- the authority does not come from our people, it comes from the Bureau of Indian Affairs. So it's like let the Bureau of Indian Affairs take care of us.

And the Tribal Constitution is what we have to go by and the document had limited the Court of -- the Tribal Court and we have the whole legislative history; because of that, it is very clear that any attempts by the Tribal Council would be expanding that jurisdiction and it cannot do that without a vote of the people. And also, to say -- to contract for a CFR Court, a federal court would be to say that it doesn't matter what the Choctaw citizens say, we want the Bureau of Indian Affairs and if you take that argument to its logical, to its logical conclusion, then you are saying, basically, the Self-Determination Act, which is the whole basis of 96-38 turns it on its ear because the Self -Determination Act was a congressional policy to let tribes determine for themselves.

Well, the Choctaw Nation and our citizens, we determined for ourselves in 1983, we determined that we did not trust our Tribal government with criminal jurisdiction, civil jurisdiction over us and as it turns out it we were probably right. But that's a moot point at this juncture. So they are turning the Self-Determination Act on its ear and saying we don't care what the people say, we want the Bureau to take care of us by setting up this court. And I do not believe that the council has the authority to do that.

But in the alternative, the BIA can use and administer a CFR Court and law enforcement until the Tribe amends its constitution. But since, as long as the CFR Court has been in
existence, there has been three elections; there has been no effort made to amend the constitution and it was just business as usual. So it is not -- the council does not have the authority to setup a CFR Court, a federal court. Thank you.

MR. RABON: I have no rebuttal, Your Honor.

JUDGE WOLFE: Let me make this statement with the approval of Juanita and Mitch.

We can go back, the three of us can go back in here -- the three of us can go back in here and rule on this today. There is a brief in this file, I haven't seen it until today but there is a brief in this file filed by Mr. Rabon, I believe. Is that correct, Mr. Rabon?

MR. RABON: Yes, Your Honor.

JUDGE WOLFE: There is a brief in here; there is no answer brief filed.

MS. MORRISON: No.

JUDGE WOLFE: If you want to do that, that is fine. Do you want time to do that?

MORRISON: Yes, I do, Your Honor.

JUDGE WOLFE: Okay. Now, that is fine. It has been my experience in the 12 years that I was on the bench in Choctaw County in the state-court that one is always better off ruling on controversial issues as soon as they are argued. For several reasons: Number one, it has been my experience and my opinion, rulings that are given fresh after the arguments are
more nearly correct than if one sits around and ponders and does a whole lot of thinking. The other thing is that -- is that when you take things under advisement, things tend to be taken under advisement and they remain under advisement for an extended period of time because other things come up and one forgets the or loses the immediacy of the action.

Now, we are certainly going to give you an opportunity to brief it. My comments are not meant to keep you from doing that. You know, we as a court are going to let you do almost whatever you want to do. You know,, I'm not going to limit anybody that appears in front of me up to a point. And Mr. Rabon will -- that is the way I did it when I was an associate district judge, to my detriment sometimes. But nobody is going to be limited, necessarily, but there is going to come a time when it is going to have to stop and I will be the one to stop it, simply because of the position that I am in. So I'm not, you know, I want you to present everything you want to present and you are going to have an opportunity to do that but it needs to be presented concisely and I don't want -well, I don't want to sound like some judges that I know and but I don't want to get in the mail reams and reams of briefing material because I will tell you, quite frankly, if I do, I will do-just like legal professors -- law school professors do, if you write to much on a test, they just don't read it. So if you are going to brief it and you certainly have that right and I intend to allow that, then I want the briefs to be short and to the point and let's get it on and get it over with.

Do you understand?

MS. MORRISON: Uh-huh.

JUDGE WOLFE: Ma'am?

MS. MORRISON: Uh-huh.

JUDGE WOLFE: How much time do you want to respond to the brief that is in the file now?

MS. MORRISON: The brief that is in the file, you know, a week, ten days.

JUDGE WOLFE: Okay. How much time-do you want?

MS. MORRISON: Ten days.

JUDGE WOLFE: Okay. You want ten days to respond to the brief that is in the file?.

Mr. Rabon, what do you want to respond to that brief?

MR. RABON: Oh, seven days.

JUDGE WOLFE: Okay. Now, there's not going to be -- I don't want to hear any of this somebody is briefing out of turn or something is not fair.

Now, ma'am, you-have ten days to brief what is in this file and answer that brief.

MR. MORRISON: Yes, sir.

THE COURT: Mr. Rabon, if you want to respond to that, you have seven days thereafter. You know, if your -- have your briefs on time. Have your briefs on time. I have a federal criminal trial beginning Monday, a week from Monday in Muskogee; I can tell you that, quite frankly, that there won't be any ruling made until I get through with that. The ruling will be made by the three of us. It will be made in writing and it will be mailed to each of the parties involved. Keep your briefs to the point and both your response brief, ma'am, and anything that you respond to, Mr. Rabon.

MS. MORRISON: Judge Wolfe, how many copies do I need to file? Do I need to file three copies or will Donna make copies or how

JUDGE WOLFE: No, you file we'll put one copy in the file and file stamp it and mail one to him and mail one to each of us.

MS. MORRISON: Okay. That's

JUDGE WOLFE: Now, if you wanted, Donna can, Donna will provide the mailing.

MS. MORRISON: Okay.

JUDGE WOLFE: If you will bring it here, she will mail it out of this office.

Mr. Rabon, if you will file your brief here, Donna will provide the mailing from the court clerk's office. You understand?

MR. RABON: Yes, sir.

JUDGE WOLFE: Ma'am?

MS. MORRISON: Yes.

JUDGE WOLFE: Is there anything else, Mr. Rabon?

MR. RABON: I have nothing further, Your Honor.

JUDGE WOLFE: Ma'am?

MS. MORRISON: No, I have nothing further.

JUDGE WOLFE: Okay. We are adjourned in this case.

I would appreciate it if you would step outside so I can communicate with the other judges concerning any other business that we might have. Thank you, very much.

Oh, one other thing.

Ask Mr. Rabon to come back in here. Just a minute. The record should further reflect that the other two judges are in agreement with the remarks that I made; is that correct?

JUDGE MULLINS: Yes.

JUDGE WOLFE: Is that correct, Ms. Jefferson?

JUDGE JEFFERSON: Yes.

JUDGE WOLFE: And the record should reflect that although I tend to dominate the conversation, that this is a three judge panel and that these, that my fellow judges are certainly independent judges and are not -- and are capable and able to make any remark that they want to concerning any statement that I may make; is that agreeable with you?

JUDGE MULLINS: Right.

JUDGE WOLFE: Ma'am?

JUDGE JEFFERSON: Yes.

JUDGE WOLFE: We are adjourned.

I, S. Jill Chapman, a Certified Shorthand Reporter of Oklahoma, duly certified under and by virtue of the laws of the State of Oklahoma, DO HEREBY CERTIFY that the proceedings had in the foregoing cause were taken in shorthand by myself and later reduced to-typewritten form by myself, and that the foregoing transcript contains a full, true, complete and correct transcript to the best of my ability of all of the proceedings had; that I am not attorney for any of the parties in this matter, nor do I have an interest in the event of same.

WITNESS MY HAND AND SEAL, in the City of Wilburton, County of Latimer, State of Oklahoma, this 30th day of October, 1996.