IN THE COURT OF INDIAN OFFENSES OF THE
CHOCTAW NATION OF OKLAHOMA

Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry, Juanita McConnell, and Rosie Burlison,

Defendant.

No. CR-95-01, 02, 03, 04, and 05

DEFENDANT'S REPLY TO CHOCTAW NATION'S
RESPONSE TO DEFENDANTS' MOTION TO DISMISS

Choctaw Nation filed a Response to Defendants' Motion to Dismiss. In reply thereto, Defendants would show the court:

1. The 1990 Indian Law Enforcement Act, 25 U.S.C. Section 2806 (d), specifically states that "[t]he provisions of this Act alter neither the civil or criminal jurisdiction of the United States, Indian tribes, States or other political subdivisions or agencies, nor the law enforcement. investigative, or judicial authority of any Indian tribe, State or political subdivision or agency thereof, or of any department, agency, court, or official of the United States other than the Secretary." (Emphasis added.) Without authority in the Choctaw Constitution for a court of general civil, criminal or probate matters, this Act does not convey additional criminal jurisdiction on the Choctaw Nation which it did not have at the time of the passage of this Act.

2. On August 14, 1991, when the Choctaw Tribal Council approved a contract between the Choctaw Nation and the Department of Interior ex rel the Bureau of Indian Affairs (BIA), the tribe adopted and incorporated 25 Code of Federal Regulations Part 11, with a proviso pertaining to Section 11.55, not germane here. In 25 CFR Part 11, Section 11.1 (23) (d), the Tribe adopted that the "regulations in this part shall continue to apply to tribes ... until a law and order code has been adopted by the tribe in accordance with its constitution and bylaws and has become effective... (Emphasis added.) Without amending the constitution to provide for general civil, criminal and probate matters, any law and order codes adopted by the Choctaw Nation are null and void pursuant to the Code of Federal Regulations, regulations specifically agreed to by the tribal council on August 14, 1991.

3. 25 CFR Part 11, Section 11.1 (23) (e) provides that "Nothing in this Section shall prevent the adoption by the tribal council of ordinances applicable to the individual tribe, and after such ordinances have been approved by the Secretary of the Interior they shall be controlling and the regulations of this part which may be inconsistent therewith shall no longer be applicable to that tribe."

4. According to the records of the Muskogee Area Office of the BIA, the Choctaw Nation adopted 25 CFR Part 11 as its law and order code, and has not "rescinded nor has the Choctaw Nation adopted an alternative code." (Letter from Karen Ketcher, Tribal Operations, Muskogee BIA, attached as Exhibit A). The Choctaw Nation has not submitted any additional criminal codes for approval of the Department of Interior since August 14, 1991. Without the express approval of the BIA, as stated in 25 CPR Part 11, Section 11.1 (23) (e), any criminal codes adopted by the Choctaw Nation, but were no submitted for approved by the BIA, are not valid.

5. The Defendants are charged with offenses enumerated in the Choctaw Criminal Codes, complied October 1991, by Bob Rabon, and patterned after statutes of the State of Oklahoma. These Criminal Codes have not been approved by the Secretary of Interior, through the BIA. Without such approval, these codes are null, void and have no effect in the Choctaw Nation.

WHEREFORE, the Defendants requests that this court grant Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction for the reasons set forth above.



CERTIFICATE OF MAILING

I hereby certify that on this 13th day of November, 1995, I mailed a true and correct copy of the foregoing to Robert L. Rabon, PO Box 726, Hugo, Oklahoma 74743.