Choctaw Nation of Oklahoma,

Plaintiff,

VS.

Douglas Dry,

Defendant.

No. CRM-97-02

Comes now the defendant, Douglas Dry, by and through his attorney of record, Scott Kayla Morrison, and moves this court to dismiss the above referenced cause, and in support thereof, asserts as follows.

I. VICTIM DURANT CITY POLICE OFFICER BEN VEENSTRA IS A FEDERAL OFFICER ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT.

Pursuant to the Indian Law Enforcement Reform Act (ILERA), 25 U.S.C. j 2801, et. seq., cross-deputization agreements were signed between the City of Durant, the Choctaw Nation and the Bureau of Indian Affairs (BIA). Under the ILERA and the cross deputization agreements, the BIA may issue a Deputy Special Officer Commission (DSO), to officers from state local law enforcement agencies to enforce federal law.- officers who hold DSOs are federal officers. 25 U.S.C. §2804(a, f), U.S. v. Schrader, 10 F.3d 1345 (8th Cir. 1993); U.S. v. Young, No. 954149SD, (8th Cir. 1996) attached. Officer Ben Veenstra holds a DSO, see Exhibit 1 attached, therefore, he is a federal officer. Veenstra is the complaining victim in the criminal matter of assault and battery upon a police officer for which defendant Dry as charged.

Officer Veenstra was wearing his City of Durant police uniform and badge, carrying his City of Durant weapon, and a City of Durant police cruiser was on site at his disposal. Obviously, Veenstra was acting within the scope of his authority, as a police officer, at Tuskahoma during the Labor Day weekend. If Veenstra was present as a private citizen, the Choctaw Nation would not have filed charges based upon assault and battery upon a police officer. As a police officer with a DSO acting within the scope of his authority, Veenstra is a federal officer.

II. FEDERAL COURTS HAVE EXCLUSIVE JURISDICTION OVER ASSAULTS UPON FEDERAL OFFICERS.

Assault upon federal officers are exclusively within the jurisdiction of federal courts, 18 U.S.C. §111, regardless of who did the assaulting or where the assault occurred. 18 U.S.C. §1152, Stone v. U.S., 506 F.2d 561 (8th Cir. 1974), cert, denied 43 L.Ed.2d 659. The alleged assault occurred at Tuskahoma within the jurisdictional boundaries of the Choctaw Nation, but this site of the occurrence does not convey jurisdiction upon the Choctaw Nation. Federal officers are authorized to act within the boundaries of the United States and any assault upon federal officers are exclusively federal, even if such assault occurred in Indian Country. Stone, U.S. v. Oakie, 12 F.3d 1436 (8th Cir. 1993), U.S. v. Dodge, 538 F.2d 770 (8th Cir. 1976), cir. denied 51 L.Ed.2d 547 (1977).

Veenstra is a federal officer due to the DSO issued by the BIA. As a BIA officer, any assault upon him is exclusively a federal crime, U.S. v. Bettelyoun, 16 F.3d 850 (8th Cir. 1994), and this court is without jurisdiction to criminally charge defendant Dry for this crime.

IV. CONCLUSION

This court is without subject matter jurisdiction to charge defendant Dry with assault and battery upon a police officer. Victim Veenstra is a federal officer, and any assault upon him
is exclusively a federal crime. This.matter must be dismissed.

Respectfully submitted,

I hereby certify that on this 3rd day of March, 1997, I placed in first class U.S. Mail the above and foregoing Motion to Dismiss postage prepaid to Robert L. Rabon, Rabon, Rabon & Wolfe, Post Office Box 726, Hugo, Oklahoma 74743.