No. CRM-97-02

Choctaw Nation of Oklahoma,

Plaintiff,

vs. Douglas Dry,

Defendant.

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.

In defendant's motion to dismiss filed March 4, 1997, defendant argued that the Durant police officer was a federal officer thereby depriving this court of jurisdiction to charge defendant. In the alternative, Durant police officer Veenstra was not a federal officer, and he was acting outside the scope of federal authority, thereby depriving this court of jurisdiction. If victim Veenstra was not a federal officer, he was acting only under the color of state law, which is inapplicable to Choctaw land.

This court is without jurisdiction except what is expressly reserved in the Choctaw Constitution. Morrison v. Choctaw Nation, Choctaw Court of Appeals, CA-95-01. This court and the Choctaw Constitutional Court have ruled that this court is a federal court acting under federal authority contracted from the federal government through a PL 93-638 contract. Choctaw Nation v. Dry, et al, CRM-95-05, Durant, et al v. Dry, et al, C-96-01.1 With the constitutional limitation on criminal jurisdiction, this court cannot operate under any authority except federal authority. If Veenstra was not a federal officer, this would mean Veenstra was not acting as a tribal officer because there is no tribal criminal authority to exercise. This court would be without jurisdiction to charge defendant with assaulting a police officer because Veenstra was acting as a private citizen and under color of state law.

In determining whether Veenstra was a federal officer, the court may consider factors, which include the (1) the sources of funding for law enforcement activities; (2) the extent of federal regulation of tribal law enforcement activities; (3) the interdependence of the tribe and the BIA; (4) the responsibility for officer's supervision; (5) whether the officer is wearing BIA uniforms, carrying BIA weapons, using a BIA vehicle or acting pursuant to the authority of BIA badges; and (6) if the cross-deputization extends to the land where officer acted. Romero y. Peterson, 930 F.2d 1502, 1507 (10th Cir. 1991).

Veenstra was paid as a private security guard using strictly tribal funds. The BIA did not regulate activity during the Labor Day Festival, even though they acted as international peacekeepers and were present during the Festival. The BIA has accepted no responsibility for supervision of Veenstra. Veenstra was wearing a Durant police department uniform and badge, Durant police cruisers were used as transportation, and he carrying a Durant police department weapon. The cross-deputization agreement with the City of Durant authorizes Veenstra to act only within the city limits of Durant. Applying the above factors to Veenstra, he was not at the Labor Day Festival as a federal officer.

Since it is well-established that the Choctaw Nation is without criminal jurisdiction, independent of the federal government, there no basis for a criminal charge of assault and battery upon a police officer as it pertains to Veenstra. Veenstra could not have been acting as a tribal officer because there simply is not tribal criminal jurisdiction to exercise. If he was acting as a federal officer, charges must be dismissed because the crime is exclusively federal. If he was not acting as a federal officer, charges must be dismissed because the tribe does not have criminal jurisdiction to exercise.

Respectfully submitted,

1..Both of these opinions cited no case law, constitutional provision or factual reas_________ion of this court. (back)

I hereby certify that on this 6th 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.