DOUGLAS G. DRY, et al.,

Plaintiffs,
vs. No. CIV-97-113-B

UNITED STATES OF AMERICA, et. al.

Defendants.

SCOTT KAYLA MORRISON, OBA #017323
Attorney for Plaintiffs
103 _ West Main
Post Office Box 637
Wilburton, OK 74578
(918) 465-5033

DOUGLAS G. DRY, et al.,

Plaintiffs,
vs. No. CIV-97-113-B

UNITED STATES OF AMERICA, et. al.

Defendants.

Comes now Plaintiffs, by and through their attorney of record Scott Kayla Morrison, and for their response to Defendant Robert L. Rabon's motion to dismiss assert the following:

1. Robert L. Rabon is tribal prosecutor for the Choctaw CFR Court of Indian Offenses, the judicial branch of the Choctaw government, and tribal attorney representing the executive, legislative and judicial branch of the Choctaw government. See Contract for Legal Services, TAC-025-91, attached as Exhibit A.[1]

No federal court has issued a ruling on the jurisdiction of the Choctaw CFR Court of Indian Offenses.[2] A tribal court's subject matter jurisdiction is a federal question proper for decision by a federal district court. Espil v. Sells, 847 F.Supp. 752, 755 (D. Ariz. 1994), FMC v. Shoshone-Bannock Tribes, 905 F.2d 1311, 1314 (9th Cir. 1990). An exception to the tribal exhaustion rule is when tribal court jurisdiction "is patently violative of an express jurisdiction prohibition." National Farmers Union v. Crow Tribe, 471 U.S. 845, 857 n. 21, 85, L.Ed.2d 818 (1985), Kerr-McGee Corp. V. Farley, 915 F.Supp. 273, 276 (D.N.M. 1995). Plaintiffs cite the admission of the BIA as authority that the Choctaw court is exercising federal criminal jurisdiction, however, a federal court has yet to make that determination. Plaintiffs asserted in their Amended Complaint that the Choctaw court is without criminal jurisdiction to charge any violation of law. Defendant Rabon bases his Motion to Dismiss on the premise that the Choctaw court does have criminal jurisdiction and his actions as tribal prosecutor were proper. Plaintiffs are not conceding that assertion, as evidenced in Proposition II below.

PROPOSITION I: THE MOTION TO DISMISS MAY NOT ASSERT FACTS OUTSIDE THE PLAINTIFFS' PLEADING.

Generally a petition may be dismissed as a matter of law for two reasons: (1) lack of any cognizable legal theory, or (2) insufficient facts under a cognizable legal theory. Kentucky Central Life Insurance Co. V. LeDuc, 814 F.Supp. 832, 835 (N.D. Cal. 1992). When a trial court is considering his ruling on a Rule 12(b)(6) motion he should not ask whether the petition points to an appropriate statute or legal theory, but whether relief is possible under any set of facts that could be established consistent with the allegations. Conley v. Gibson, 355 U.S. 41, 2 L.Ed.2d 80 (1957); Bartholet v. Reishauer, A.G., 953 F.2d 1073, 1078 (10th Cir. 1992). When reviewing a motion to dismiss, the court must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them. Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971). Defendant Rabon has not met his burden in his Motion to Dismiss, and it should be denied.

PROPOSITION II: THE DEFENDANT RABON IS NOT IMMUNE FROM THE ALLEGATIONS CONTAINED IN THE PLAINTIFF'S COMPLAINT.

The defendant's wordy brief in support of a motion to dismiss this complaint struggles on and on to assert that on the face of the plaintiff's complaint, the defendant Rabon is immune. However, the defendant fails to take note of the distinction between the acts a prosecutor engages within the proper scope of that office and those taken outside the scope, which forms the basis of the allegations against this particular defendant. When a prosecutor engages in conduct outside the scope of the proper prosecutorial function, the prosecutor is entitled only to qualified immunity and has no claim to an absolute immunity. Burns v. Reed, 111 S.Ct. 1934 (1991).

The allegations against the prosecutor, the defendant Rabon, concerns statements and actions he took not within the proper prosecutorial function. The allegations of the complaint, therefore, must withstand any motion to dismiss as has been filed by the defendant. Once the record is more factually developed, the defendant may attempt to assert some claim for summary judgment but on the basis of the complaint itself, there is no grounds for this court to grant the defendant's motion.

The plaintiffs have asserted that the defendant Rabon prosecuted and continues to prosecute criminal actions against the plaintiffs as if his federal contracted role as a BIA prosecutor is that of a tribal prosecutor disallowing consideration of the Plaintiff's basic U.S. Constitutional rights, such as free speech. The defendant knows that there is no criminal jurisdiction by the Choctaw Nation against the Plaintiffs[3] and therefore, the defendant's actions are completely in the absence of any tribal jurisdiction. A judge nor prosecutor is immune for actions taken under color of his authority when the judge or prosecutor acts in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).

Plaintiffs' complaint makes clear that the charges upon which this prosecutor brought -- the charges upon which this prosecutor based the criminal prosecution of the plaintiffs are in the clear absence of all jurisdiction. The Choctaw Nation, on whose behalf this prosecutor seeks to prosecute the plaintiffs has no criminal jurisdiction and therefore, the actions of the defendant Rabon are in the clear absence of all jurisdiction and he enjoys no immunity for such actions.

The United States Supreme Court has made it clear that absolute immunity must be strictly limited to situations where the underlying rational for the document clearly shows that an absolute exception from Section 1983 liability is required. Butz Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). The reason for the Court's action was because the court stated that the damage remedy provided by Section 1983 is a "vital means for providing redress for persons whose constitutional rights have been violated." 438 U.S. at 504, 98 S.Ct. at 2909.

Clearly the actions alleged against this defendant should not enjoy absolute immunity nor even qualified immunity. The prosecutor such as the defendant is not in any way shielded from liability for false or defamatory comments he makes in the course of a criminal prosecution. Statements asserting a violation of a law that does not exist or statements falsely implying or imputing certain evidence regarding criminal defendants can be used to subject a prosecutor to liability. Marrero v. City of Hialeah, 625 F.2d 115 (3rd Cir. 1980). It is also extremely relevant in inquiring whether or not a particular function of a prosecutor is immune as to whether or not the actions of the prosecutor occurred prior to or subsequent to the filing of the criminal charges. Higgs v. District Court in and for Douglas County, 713 P.2d 840 (Colorado 1985).

Conduct that occurs prior to the initiation of the criminal charges is generally more of an investigative type conduct[4] and should not afford prosecutors with the cloak of absolute immunity. Higgs v. District Court in and for Douglas County, 713 P.2d at 854. None of the allegations against the defendant Rabon regarding prefiling conduct of the defendant are of the nature of obtaining information necessary, to the prosecutor's decision to prosecute and therefore, he should enjoy no immunity for -- no absolute immunity for such conduct. In any event, the face of the pleadings in this action do assert sufficient constitutional claims against the defendant Rabon such that his motion to dismiss for failure to state a claim upon which relief can be granted is not appropriate at this stage. If during the course of discovery it is determined that all the actions of the defendant Rabon were in the course of prosecutorial function that he had the ability to conduct and that his actions were necessary in the conduct of initiating criminal prosecution or continuing a criminal prosecution, then he has the appropriate vehicle for a motion for summary judgment based on that factual evidence, but a Rule 12(b)(6) motion should not stand and should not be granted.

The court in Moraro stated grounds why prosecutors should be liable for statements and actions they engage in for advising police and in terms of non-necessary functions of a prosecutor when they stated: no surveillance comparable to that of a judge serves to check a prosecutor's zeal when he makes statements about individuals outside the courtroom or when he engages in investigative activities directing, advising, assisting, or participating with, the police in obtaining evidence. Moreover, when a prosecutor engages in unconstitutional conduct outside the courtroom, absent are the remedies which the judicial process by its nature provides for illegal conduct occurring within the process. When a prosecutor makes false allegations against a defendant in the course of a trial, the opposing counsel is available to counteract immediately the damaging statements with an impartial panel of jurors present to sift through the allegations and evidence to determine where the truth lies. In the case at bar, Defendant Rabon made false statements to a reporter for the Dennison Herald, published on September 5, 1995. Exhibit B. In that interview, Rabon said, "It is my understanding, ... [t]hat the tribal council passed a law prohibiting the passing out of literature on tribal lands." This was an incorrect statement,[5] a statement Defendant Rabon was well aware of, given the fact that he is tribal prosecutor and tribal attorney, and had been for at least four years prior to September 4, 1995. Defendant Rabon also said in the same interview that the "U.S. Constitution has no more applicability in Tuskahoma as the Guam constitution." Defendant Rabon was aware or should have been aware that this was an incorrect statement. The Choctaw CFR Court is a Court of Indian Offenses, in which the U.S. Constitution applies, more specifically, the Choctaw CFR Court exercises federal criminal jurisdiction contracted from the federal government, Admissions of the BIA in Burlison v. City of Atoka, Exhibit C, so there is no question that the U.S. Constitution would apply to criminal defendants in Indian Country within the boundaries of the Choctaw Nation. These statements were made outside the courtroom and outside the scope of defendant Rabon's role as prosecutor, but were given credence due to his position as tribal prosecutor.

PROPOSITION III: DEFENDANT RABON IS NOT IMMUNE FOR SELECTIVELY PROSECUTING PLAINTIFFS IN THE CRIMINAL CASES PENDING IN CHOCTAW CFR COURT.

Defendant Rabon is a prosecutor in the Choctaw CFR Court exercising federal criminal jurisdiction, discussed below, therefore the fifth amendment due process clause applies. Bolling v. Sharpe, 347 U.S. 497, 98 L.Ed. 884 (1954). Prosecutorial selectivity may rise to the level of an equal protection violation when it is based on an unjustifiable standard such as race or religion or other arbitrary classification, including the exercise of protected constitutional rights. Wayte v. U.S., 470 U.S. 598, 84 L.Ed.2d 547 (1985), U.S. v. Steele, 461 F.2d 1148 (9th Cir. 1972). The three elements Plaintiffs must show to demonstrate selective prosecution are whether: (1) other persons similarly situated to the defendant are not prosecuted generally; (2) the defendant was selected for prosecution as a result of conscious, deliberate, or purposeful decision; and (3) the defendant's selection was based on an arbitrary, invidious, or impermissible consideration. Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220 (1886), Oyler v. Boles, 368 U.S. 448, 7 L.Ed.2d 446 (1962).

A. OTHER PERSONS SIMILARLY SITUATED TO DEFENDANTS WERE NOT PROSECUTED GENERALLY.

In 1995, five criminal cases were filed in the Choctaw CFR Court. Plaintiffs were four of these five cases, and Randal Hicks was the fifth. Hicks was arrested for possessing the literature distributed by Plaintiffs, arraigned but formal charges were not filed.[6] During the year of 1995, the Choctaw Nation law enforcement received reports of or investigated 205 offenses, broken down by quarter as follows:

January, February and March 1995 reported 41 offenses[7]
April, May and June 1995 reported 51 offenses[8]
July, August and September 1995 reported 53 offenses[9]
October, November and December 1995 reported 60 offenses[10]
In September 1995, 21 offenses were reported or investigated.

Exhibit I.

It is assumed Plaintiffs Burlison, McConnell and Dry were the three disturbing the peace, identified with the number "3" in Exhibit I, since they were all charged for this crime at the same time. There are two single incident reports of disturbing the peace during this same month. One disturbing the peace is listed as occurring in Wilburton at the Choctaw Housing. Yet no criminal cases were filed against anyone else except Plaintiffs for the entire year, much less anyone else for disturbing the peace in September 1995. It would appear from the statistics that Plaintiffs were the only citizens charged during the entire year for disturbing the peace, when there were other reports of disturbing the peace investigated by the Choctaw Nation law enforcement.

B. THE DEFENDANTS WERE SELECTED FOR PROSECUTION AS A RESULT OF CONSCIOUS, DELIBERATE, OR PURPOSEFUL DECISION

Plaintiffs were charged with nineteen crimes[11] stemming from the incidences of September 4, 1995. With Randal Hicks' charges being dismissed, the Plaintiffs were the only Choctaw citizens charged that year. Activity in the Choctaw CFR Court from the time of its establishment breaks down as follows:
1994, one Choctaw citizens was charged with two crimes.[12]

1996, seven Choctaw citizens were charged with seven crimes.[13] Two of these were Plaintiff Burlison's husband, Bob Burlison, and Plaintiff Burlison's nephew, Tryg Jorgensen for violating CB-113.[14] The other five Choctaw citizens were arrested for public intoxication.

1997 to date, two Choctaw citizens have been charged with two crimes. Assault and battery upon a police officer was filed on January 24, 1997, against Plaintiff Douglas Dry, CRM-97-02. A Choctaw citizen was charged with unlawfully pointing a firearm on January 24, 1997, CRM-97-01.

Plaintiffs Burlison, McConnell and Dry are members of Choctaws for Democracy (CFD), as are Plaintiff Burlison's husband, Bob Burlison, and her nephew, Tryg Jorgensen. These five CFD members have been charged with 22 crimes by Defendant Rabon in the Choctaw CFR Court, facing over 15 years in jail collectively plus fines. Seven non-CFD members have been charged with eight crimes, mostly public intoxication, with punishment of a fine, and less than a year in jail.

In 1995, Plaintiff Dry was one of three (or one-third) of all Choctaw citizens charged, and he was charged with over one-third of all the crimes charged. In 1997, Plaintiff Dry was one of two (or one-half) of all Choctaw citizens charged, and he was charged with one-half of all crimes charged. Plaintiff Juanita McConnell was one of three (one-third) of the Choctaw citizens charged, and she was charged with slightly less than one-third of all the crimes charged in 1995. Plaintiff Rosie Burlison was one of three (one-third) of the Choctaw citizens charged, and she was charged with over one-third of all the crimes charged in 1995.

It would appear from the above facts that defendant Rabon singled out Plaintiffs due to their exercise of free speech, and criticism of then-chief Roberts. This was both the effect and the intent of defendant Rabon's prosecutorial decisions. Snowden v. Hughes, 321 U.S. 1, 88 L.Ed. 497 (1944). In the video attached as Exhibit A to Affidavit of Rosie Burlison in Plaintiffs' Response to Defendant Kim Reed's Motion to Dismiss, the Choctaw Nation law enforcement officers were concerned with "literature" and "pamphlets." The orders being issues by Defendant Reed and the radio traffic in the background referred over and over to "literature." Plaintiffs were being singled out for arrest and subsequent prosecution for exercising their free speech, protected under the U.S. Constitution. Wayte v. U.S., 470 U.S. 598, 84 L.Ed.2d 547 (1985).

C. THE DEFENDANTS' SELECTION WERE BASED ON AN ARBITRARY, INVIDIOUS, OR IMPERMISSIBLE CONSIDERATION.

Plaintiff Dry was a candidate for chief in the 1995 Choctaw Nation election, losing in a controversial election. Plaintiff Dry represented Kobi Russ in a federal civil suit against then-chief Hollis Roberts on sexual harassment in 1994, and another victim of Roberts in an administrative matter stemming from the sexual assaults for which Roberts was convicted. Defendant Rabon's law firm represented Hollis Roberts in both his individual and official capacity against Plaintiff Dry in the Russ lawsuit. Plaintiff Dry represented Scott Kayla Morrison in an attempt to obtain the names and addresses of Choctaw voters in Choctaw CFR Court, Court of Indian Offenses for the Chickasaw Agency, and federal court. Plaintiff Dry was not a well-liked person within the administration of the Choctaw Nation in 1995, or in 1997. At the trial of then-chief Hollis Roberts for criminal sexual assault of tribal employees, Roberts defense was the charges stem from a conspiracy between the FBI and Plaintiff Dry. Transcript of prosecution's closing argument, pps 27 (lines 17-18), 28 (lines 10-11), 40 (lines 9-10), Exhibit J. The tribal administration's position regarding Plaintiff Dry is evidenced in the front page story in the June 1997 issue of the Bishinik, the tribal newsletter, Exhibit K, asserting the indictment of then-chief Roberts was politically motivated by Doug Dry. Defendant Rabon, as tribal attorney, was aware of the administration's position regarding Plaintiff Dry. The irony is that defendant Rabon, defendant Bob Rabon, defendant Kim Reed, and the tribal officers requested that the U.S. Attorney's Office for the Eastern District represent them in the case at bar filed by Plaintiff Dry when the U.S. Attorney's Office is supposedly acting in concert with Plaintiff Dry for political reasons.

To bolster this selective prosecution, we must to look at the freedom the judicial branch has from interference from other branches. The judicial branch itself may be separated from the executive and legislative branch under the Choctaw Constitution, but Defendant Rabon is not. He is tribal attorney with a contract approved by the defendant BIA to represent all branches of government. Defendant Rabon, as do all employees including the position of assistant chief, served at the will of then-chief Roberts. Exhibit J, Transcript, p. 16 (line 12-14). Defendant Rabon's prosecutorial discretion of who to charge with what crime was selectively limited by the political agenda of the tribal administration. Plaintiff Dry was considered a political opponent of then-chief Roberts, and was selected for prosecution by defendant Rabon to keep his jobs as tribal attorney and tribal prosecutor in the Choctaw CFR Court.

Upon arrest of Plaintiff Dry by Choctaw Nation law enforcement officers, Dry was transported by Talihina jail and held for several hours on the charge of resisting arrest. During this detention, defendant Talihina Chief of Police Jack England attempted to find out from the Choctaw Nation officers for which charge Plaintiff Dry was being arrested when he resisted. England called the Choctaw Security Office at Tuskahoma three times and was informed that the police officers were meeting with "the attorney" to discuss the charges. Exhibit Y. The attorney was tribal attorney defendant Bob Rabon, but defendant Robert Rabon is also tribal attorney. England was never informed of the underlying charge from which Plaintiff Dry was arrested.

The witnesses for which Defendant Rabon relies to filed charges against the Plaintiffs are all tribal employees, with one exception. Endorsement of Witnesses, Exhibit L.[15] With the exception of Ruthie Imes, all of the defendant Rabon's witnesses are tribal employees, who serve at the will of then-chief Roberts. Exhibit J, p. 16. There was not one independent witness to verify the events of September 4, 1995,[16] offered to defendant Rabon upon which to base the criminal charges filed against Plaintiffs.
Due to the policy of the Choctaw Nation administration as it pertains to Plaintiff Dry and all associated with him, defendant Rabon decided but to selectively prosecute Plaintiffs to prevent the loss of his attorney contract. This selective prosecution takes defendant Rabon out of his independent role as an objective prosecutor and relieves him of prosecutorial immunity.

PROPOSITION IV: THE CHOCTAW NATION HAD CRIMINAL JURISDICTION OVER ITS MEMBERS UNTIL THE 1983 CHOCTAW CONSTITUTION.

Prior to Oklahoma statehood, the Choctaw Nation exercised inherent criminal jurisdiction over its members. The Five Civilized Tribes Act of 1906, 34 Stat. 9822 (March 2, 1906) was thought to have to repealed the 1860 Choctaw Constitution, or so everyone assumed until 1976. In 1976, the district court for the District of Columbia decided Harjo v. Kleppe, 420 F.Supp. 1110 (D.D.C. 1976). Creek citizens brought this action to seek a declaration that their 1866 Constitution was still a valid document, among other things, in spite of the Five Civilized Tribes Act of 1906. The court agreed.

Choctaw citizens, using the same attorneys, filed a similar action in the same court in 1977, seeking a declaration that the 1860 Choctaw Constitution was still valid. The Choctaw administration, with the help of tribal attorneys, submitted the 1979 Provisional Constitution for adoption, and asked that the lawsuit be dismissed when that constitution was adopted. The district court dismissed the action and the Choctaw citizens appealed. In 1981, the appellate court issued a decision in Morris v. Watt, 640 F.2d 404 (D.C. 1981), ordering constitutional reform in the Choctaw Nation, setting forth criteria for such reform. One such requirement was to inform Choctaw citizens that the 1860 constitution was still in effect, and to educate the citizens on the fundamental differences between the 1860 and 1979 Choctaw Constitutions. Exhibit M. On May 21, 1983, this election was held. Choctaw voters were asked "Shall the tribal court be expanded to include general civil, criminal and probate matters?" Of the Choctaw citizens voting, 2,567 voted NO, a majority. Exhibit N. The Defendant Bureau of Indian Affairs ("BIA"), as a party to the lawsuit, was informed of this decision made by Choctaw voters. On June 9, 1983, James W. Fritz, Deputy Assistant Secretary-Indian Affairs (Operations) approved the Choctaw Constitution drafted by the mandates of the federal court order. The current constitution was ratified on July 25, 1983. Exhibit O.

The Choctaw Nation of Oklahoma does not have criminal jurisdiction over its members due to this vote of the Choctaw citizens. The criminal jurisdictional limitation of the Choctaw Nation is not found in federal statutes or treaties, rather it is found embedded in the history of the Choctaw Constitution. The Choctaw citizens determined for themselves the form of government under which they would conduct their internal affairs in 1983. The people themselves, "the ultimate source of legislative authority," Id. at 407, limited the criminal jurisdiction of the Choctaw Nation.
In the misdemeanor criminal proceedings in the Choctaw CFR Court against the Plaintiffs Dry, Burlison and McConnell, a hearing was held on March 5, 1996, on here-Plaintiffs-there-Defendants Motion to Dismiss the criminal charges for lack of subject matter jurisdiction. At this hearing Fred Ragsdale, Jr., was a witness. Ragsdale was appointed by the District of Columbia court in Morris v. Watt as arbitrary administer to form a special master to conduct a series of constitutional elections in the Choctaw Nation.[17] Ragsdale testified that criminal jurisdiction was one issue that "we spent a lot of time talking about." Transcript p. 8, Line 17, attached as Exhibit P. Criminal jurisdiction was explicitly excluded from the Choctaw Constitution because of the vote against exercising criminal jurisdiction. Transcript p. 11, Lines 7-12. If the Choctaw Constitution was amended to provide for tribal criminal jurisdiction, the tribe could begin exercising criminal jurisdiction again.

PROPOSITION V: THE CHOCTAW NATION CONTRACTED FEDERAL CRIMINAL JURISDICTION THROUGH A CONTRACT WITH THE BUREAU OF INDIAN AFFAIRS.

At the December 8, 1990 Choctaw Council meeting, the Council discussed signing a contract with the BIA for a law enforcement program. Defendant Bob Rabon, tribal attorney was present and told the Council:

The feds have jurisdiction over basic crimes. There are certain major crimes, .... At this time you could have a constitutional amendment voted on by the people to expand the jurisdiction of your court because your court is very limited jurisdiction [sic]. Basically, it decides disputes arising out of provisions of the constitution and enactments you pass here.[18]

Speaker Bertram Bobb responded:

You need to say that further and see what we can do to pass a resolution or something to enact one of these court systems. You might ask the rules and regulations committee to look into this.

On June 19, 1992, the Choctaw Council passed CB-111-92 to approve a contract with the BIA for a CFR Court, Court of Offenses. Exhibit Q. The "Tribal Court Program" was made a part of the Aide to Tribal Government Contract CT G09 T 907 14. Exhibit R. On August 31, 1992, the Choctaw Nation submitted a proposal to the BIA to contract for a CFR Court. Exhibit S. On Page 4 of the proposal, "Court of Indian Offenses" has been stricken and "a tribal court system" has been handwritten in its place. A meeting was held on September 14, 1992, at the BIA Muskogee Area Office, with BIA officials Ed Lowery, Jack Pate, Larry Mings, Jack Chaney, Karen Ketcher and Lorene Phillips present, regarding the Choctaw Nation court contract. Notes from that meeting reflect that the name of the contract would be changed to "tribal court program." The program goals would be changed to "provide a tribal court for the Choctaw Nation of Oklahoma." Exhibit T. On October 22, 1992, defendant Dennis Springwater wrote a memo to the Talihina Superintendent regarding the Choctaw court proposal. Springwater stated that all references to the "Court of Indian Offenses" or "CFR court" should be omitted, and the term "tribal court" should be substituted. Exhibit U. However, several years later, the defendant BIA, a defendant in Morris v. Watt, realized the constitutional limitation disallowing tribal criminal jurisdiction, and admitted that the Choctaw Nation was exercising federal criminal jurisdiction contracted from the BIA. Admissions of BIA in Burlison v. City of Atoka, Exhibit C. The reason for this is the jurisdictional limitation under the Choctaw Constitution. With no tribal criminal jurisdiction to exercise, defendant Rabon could not have been acting in a tribal capacity as it pertains to the Choctaw court.

PROPOSITION VI: DEFENDANT RABON WAS ACTING AS A FEDERAL ACTOR ON SEPTEMBER 4, 1995, AND THE CHOCTAW CFR COURT IS WITHOUT JURISDICTION OVER HIM.

Defendant Rabon is non-Indian. The race of the defendant determine jurisdiction of the "CFR Court of Indian Offenses for the Choctaw Nation."[19] Under 25 CFR Part 11.103(b), the Choctaw CFR court would not have jurisdiction over non-Indian defendants without their consent. Under 25 CFR Part 11.104(a), the Choctaw CFR court does not have jurisdiction over "Federal or state official(s)" it could not exercise if it were a tribal court. Tribal court of the Choctaw Nation does not have jurisdiction over general civil, criminal or probate matters, according to the Choctaw Constitution. Therefore, there is no Choctaw tribal court or CFR court that has jurisdiction over defendant Rabon. If federal court does not assume jurisdiction, Plaintiffs would be without a forum to address their grievances.

Plaintiffs filed a writ of prohibition in the Court of Indian Offenses for the Chickasaw Nation to prevent further criminal proceeding pending against Plaintiffs. The Court of Indian Appeals, Muskogee Area Tribes, found that it was without jurisdiction to issue such a writ, and not a proper forum to make such a determination. Exhibit V.

Additionally, the only appellate decision of the Choctaw Nation Court of Indian Appeals addressed the issue of jurisdiction of the Choctaw CFR Court. In Morrison v. Choctaw Nation, CA-95-1 (Sept. 23, 1995), 23 ILR 6093 (1996), Exhibit W, the Choctaw appeals court held that the "jurisdiction of the tribal court is defined by the Constitution of the Choctaw Nation of Oklahoma. This exclusive jurisdiction is limited to 'decide disputes arising under any provision of this Constitution or any rule or regulation enacted by the Tribal Council'." Id. at 6094. This decision eliminates a civil lawsuit in Choctaw CFR Court stemming from the events on September 4, 1995.

Moreover, since defendant Rabon is a federal agent, subject to the federal Tort Claims Act, 28 USC § 2671 et seq., Plaintiffs could not make a claim to the BIA and file in Choctaw CFR Court when such claim is denied, even if the other prohibitions were cured. On May 6, 1994, the Choctaw Council adopted Council Bill 99-94, "to approve court rules for the CFR Court of Indian Offenses." These rules shortened the civil statute of limitations, by amending the criminal procedure portion of the rules, from three years to six months.[20] The minutes of that council meeting reflect that the reason for such shortening of time was to deny a victim of then-chief Hollis Roberts a civil forum in Choctaw court. Exhibit X. The rules have not been changed since that time, and the six months statute of limitation is still in effect. The time restraints for filing a lawsuit under the Tort Claims Act is six months after notice of the tort claim demand is submitted to the federal government. It is legally impossible to file a claim with the BIA, allow time for the BIA to investigate, either deny the claim or fail to reply, then file a civil lawsuit in Choctaw CFR Court before the statute of limitations run. The actions of the tribal council forecloses a tribal forum.

The exhaustion of tribal remedies, as required in National Farmers Union Insurance Co. Vs. Crow Tribe of Indians, 471 U.S. 845, 85 L.Ed.2d 818 (1985), and Iowa Mutual Ins. Co. V. LaPlante, 480 U.S. 9, 94 L.Ed.2d 10 (1987), assumes there are tribal remedies to exhaust. The case at bar is that there are no tribal remedies because the tribe, through prior actions, have denied tribal forums to tribal citizens.

PROPOSITION VII: ALTERNATIVELY, IF DEFENDANT RABON WAS ACTING AS A TRIBAL OFFICER ON SEPTEMBER 4, 1995, HE IS NOT IMMUNE FROM SUIT.

Tribal officers are not immune from suit. Santa Clara Pueblo v. Martinez, 98 S.Ct. 1670, 1677 (1978), quoting Puyallup Tribe, Inc. v. Washington Dept. Of Game, 433 U.S. 165, 171-172 (1977); Arizona Public Service Co. V. Aspaas, 77 F.3d 1128, 1133-34 (9th Cir. Ariz. 1995);Tenneco Oil Co. V. Sac and Fox Tribe of Indians of Oklahoma, 725 F.2d 572, 574 (10th Cir. Okla. 1984). Santa Clara Pueblo addressed the forum where a tribe may be sued under the Indian Civil Rights Act (ICRA), 25 U.S.C. § 1301. This lawsuit is not based on the ICRA nor could it be. The tribe exercises federal criminal authority contracted from the federal government, therefore the U.S. Constitution would apply.

Even if defendant Rabon was a tribal official, and the sovereign immunity of a tribal official were co-extensive with the tribe, it was never the intent of Congress or the courts to deny tribal citizens a forum to redress for grievances. Santa Clara Pueblo v. Martinez, 98 S.Ct. 1670 (1978), Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980).

Dry Creek Lodge carves out a narrowly construed exception to sovereign immunity of tribes set out in Santa Clara Pueblo. The plaintiffs in Dry Creek Lodge were non-Indians and had made an actual attempt to pursue a remedy in the tribal forum, but access was denied, as the 10th Circuit pointed out in White v. Pueblo of San Juan, 728 F.2d 1307, 1312 (10th Cir. 1984). Plaintiff Dry sought Choctaw CFR Court redress on behalf of his client, Scott Kayla Morrison, in an attempt to obtain the Choctaw voter registration list, and attempted to seek redress for his client, Kobi Russ, as a victim of then-chief Hollis Roberts' sexual assaults. The Choctaw CFR Court, in Morrison v. Choctaw Nation, denied Morrison access and restricted access for future litigation on any matter by its decision. The Choctaw Council changed the statute of limitations to foreclose the courts to Ms. Russ. This situation comes directly under the exception to sovereign immunity of a tribe carved out in Dry Creek Lodge.

Respectfully submitted,



_________________________
SCOTT KAYLA MORRISON, OBA #017323
Attorney for Plaintiffs
103 1/2 West Main
Post Office Box 637
Wilburton, OK 74578
(918) 465-5033



CERTIFICATE OF MAILING

On the ____ day of July, 1997, I certify that I placed in the U.S. Mail, first class postage pre-paid a true and correct of the above and foregoing Plaintiff's Response to Defendant Robert Rabon's Motion to Dismiss to the following:

Peter Bernhardt Eric Janzen
Assistant U.S. Attorney W.G. "Gil" Steidley, Jr.
333 W. Fourth Street, Ste. 3460 Steidley & Neal
Tulsa, OK 74103 P.O. Box 1165
McAlester, Oklahoma 74502

Alison Cave
Steidley & Neal
PO Box 1165
McAlester, OK 74502

_________________________________
Scott K. Morrison


[1] The first sheet is attached as that is the pertinent portion showing Robert Rabon is tribal attorney. Also, this contract expired September 1, 1995, three days before the incident. However, the Rabon, Wolf and Rabon firm still acts as tribal attorney. It took counsel considerable time and appeals from denial of Freedom of Information Act requests to obtain this one.

[2] Both counsel and Plaintiff Dry, in their capacity as attorneys, have conducted extensive research, both legal and factual, in issues related to the civil and criminal jurisdiction of the Choctaw Nation, which has involved numerous litigation in the Choctaw Constitutional Court, the Choctaw CFR Court of Indian Offenses, the Choctaw CFR Court of Indian Appeals, the Court of Indian Appeals for the Muskogee Area Tribes, Court of Indian Offenses for the Chickasaw Nation, Oklahoma State District Courts for Oklahoma and Atoka counties, and federal district court for the Eastern District of Oklahoma. The litigation in federal court included a civil sexual harassment suit against then-chief Roberts and the Choctaw Nation, as well as civil suit to obtain the Choctaw voter registration list. A writ of prohibition to prohibit further proceedings in the criminal charges pending against Plaintiffs in Choctaw CFR court was filed with the Court of Indian Offenses for the Chickasaw Nation. An injunction action to stop any warrants issued by the Choctaw CFR court from being served by state law enforcement agencies were filed in Oklahoma County state court and transferred to Atoka County state court. This case was removed to federal court then remanded to Atoka County. The voter registration suit was filed in Choctaw CFR Court, appealed to the Choctaw CFR Court of Indian Offenses and Court of Indian Appeals for the Muskogee Area Tribes. Plaintiff Dry represented Kobi Russ in a federal civil sexual harassment suit. Counsel is defending the Plaintiffs in the criminal charges still pending in Choctaw CFR Court. Plaintiffs McConnell and Burlison have filed an appeal when their motion to dismiss for lack of subject matter jurisdiction was denied. Plaintiffs were all sued in Choctaw Constitutional Court to establish the authority of the Choctaw Council to contract criminal jurisdiction from the federal government.

Prior to this two-year litigation, counsel and Plaintiff Dry have repeatedly argued that the 1983 Choctaw Constitution prevented the Choctaw Nation from exercising civil or criminal jurisdiction. In all cases, at least one of the Rabons, defendant Bob Rabon and defendant Robert Rabon, have been involved in an adversary role to the counsel and Plaintiff Dry. The legal position of the Rabon law firm has changed depending on which case was being litigated in what court. Recently, the defendant BIA and the Choctaw Nation finally agreed that the tribe is exercising federal criminal jurisdiction contracted through a PL-93-638 contract. Plaintiffs do not concede that this is a correct interpretation of the law, given the broad, extensive background of both counsel and Plaintiff Dry in Indian law, tribal courts and CFR Courts. It is time a federal court determined the extent and nature of criminal jurisdiction of the Choctaw CFR Court.

[3] Defendant Rabon's father and law partner, defendant Bob Rabon, explained to the tribal council on December 8, 1990, that without amending the constitution, exercise of criminal was not proper. Minutes not attached because tribal members may not copy council minutes.

[4] September 4, 1995 was the arrests. On September 4 and 5, 1995, defendant Rabon made statements to the press regarding a non-existent law, and lack of U.S. Constitutional rights on tribal lands. From September 4 to September 14, 1995, defendant Rabon took statements only from tribal employees without looking at any outside, independent source to determine the truth or falsity of the reported events. On September 14, 1995, charges were filed.

[5] The Choctaw Council did pass a law prohibiting passing out literature, within certain limitation in July 1996, CB-113, but on September 4, 1995, no such law was in place in the Choctaw Nation.

[6] No formal charges were filed against Hicks, though he was arraigned on September 4, 1995, with Plaintiffs. Hicks filed a civil suit in Choctaw CFR Court against Choctaw Nation Chief of Police Hoppy Denison and other officers. The defendants filed a motion to dismiss, to which Hicks responded on March 4, 1996. On April 29, 1996, Hicks' attorney, Rick Moore, wrote a letter to the CFR Judge James Wolfe requesting a hearing on the motion. Exhibit D. To date, no hearing has been set and the case is still pending.

[7] Quarterly report for January, February and March 1995, Exhibit E.

[8] Quarterly report for April, May and June 1995, Exhibit F.

[9] Quarterly report for July, August and September 1995, Exhibit G.

[10] Quarterly report for October, November and December 1995, Exhibit H.

[11] Douglas Dry has been charged with Sections 5-5 (resisting executive officer), 16-12 (attempt to intimidate officer), 17-8 (assault, battery or assault and battery upon police officer or other peace officer), 41-2 (public nuisance), 46-3 disturbing lawful meeting), 46-4 (disturbance by loud or unusual noise or abusive, violence, obscene, profane or threatening language), and 46-5 (use of language calculated to arouse anger or cause breach of peace). Rosie Burlison has been charged with Sections 2-11 (attempt to commit crime), 5-4 (preventing officer's performance of duty), 16-7 (obstructing officer), 41-2, 46-3, 46-4, and 46-5. Juanita McConnell has been charged with Sections 5-5, 41-2, 46-3, 46-4, and 46-5.

[12] Jerome Paul Bonaparte, CRM-94-01.

[13] Elton B. Williams, CRM-96-01; Jimmy Ray Robinson, CRM-96-02; Heath Allen Watson, CRM-96-03; Bobbie Burlison, Jr., CRM-96-04; Tryge Jorgensen, CRM-96-05; Lance Baker, CRM-96-06; Jason Glenn Stratton, CRM-96-07.

[14] See Dry v. City of Durant, in the U.S. District Court for the Eastern District of Oklahoma, CIV-97-334-B, for history of CB-113.

[15] This is the only discovery obtained by Plaintiffs from defendant Rabon even though the criminal charges were filed on September 14, 1995, and Plaintiffs filed discovery motions shortly thereafter.

[16] Ruthie Imes' statement pertains to hearsay events after the arraignment, not the actual arrests of Plaintiffs.

[17] The Department of Interior paid for the constitutional and Indian law expert services of Ragsdale during the 1982-83 constitution election process.

[18] Choctaw citizens may not copy the Council meeting minutes. We may only view them at the office of the Tribal Council at the BIA building in Talihina, Oklahoma. Copies of the minutes are not attached for that reason.

[19] This is the title used by the tribal council referring to the Choctaw court. This court is not to be confused with the Choctaw tribal court established pursuant to the Choctaw constitution and of limited jurisdiction.

[20] Evidently the tribe was in such a hurry to prevent Kobi Russ from filing a sexual harassment suit against then-Chief Hollis Roberts in the Choctaw court, adequate research of the Choctaw procedure codes was not performed. The tribe shortened the statute of limitations for civil cases by amending the criminal procedure code.