CHOCTAW NATION,

Plaintiff,

VS.

DOUGLAS DRY, ROSIE LEE BURLISON, and JUANITA MCCONNELL,

Defendants.

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

The Choctaw Nation of Oklahoma traces its roots to the removal Treaty of Dancing Rabbit Creek of 1830.1 The tribe was divided, with part of the people removing to what is now Oklahoma and part of the people remaining in Mississippi. The Choctaw Nation of Oklahoma has retained its inherent sovereignty, subject to the limits imposed on the government by the Choctaw citizens. See generally, Morrison, "Indigenous Tribal Governments," Turtle Quarterly, Fall/Winter 1994, p. 6, (arguing that the use of the invaders' term limited the rights and privileges enjoyed by the aboriginal Choctaw people.)

HISTORY OF THE CURRENT CONSTITUTION

When the Choctaws arrived in what is now Oklahoma, they convened to adopt a written constitution in 1834. This document was revised in 1838 when the Chickasaws settled among us after their removal. We amended our constitution again in 1842, 1852,1858 and 1860, sometimes basically rewriting the document. Consistent, however, in all the Choctaw Constitutions was the fundamental concept of a government formed and limited by the people. Article I, Section 2 of the 1838, 1842, 1852, 1858, and
1860 Choctaw Constitutions state:

"Sec. 2. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. And, therefore, they have at all times an unalienable and indefeasible right to alter, reform or abolish their form of government, in such manner as they think expedient."

Article I, Section 1 of the 1838, 1842, 1852, 1858 and 1860 Choctaw Constitutions state:

"Sec. 1. All freeman, when they form a social compact, are equal in rights, and no man or set of men are entitled to exclusive separate public emoluments or privileges, but in consideration of public service."

Article I, Section 4 of the 1838, 1842, 1850 and 1860 Choctaw Constitutions state,

"No human authority ought in any whatever to control or interfere with the right of conscience."

During this period, the Choctaw people approved the constitution, without interference by the United States government. The 1860 Constitution was in effect when the Curtis Act was passed in 1898, 30 Stat. 495, which terminated tribal business except the issuing of allotment deeds. The Five Tribes Act of 1906, 34 Stat. 137, provided that the U.S. president could appoint our chief, but stipulated that the tribal government was to continue. See generally, Holm, "The Crisis in Tribal Government," American Indian Policy in the Twentieth Century,' (Vine Deloria, Jr., ed. University of Oklahoma Press 1985), p. 135, (discussion of these acts begin on page 144).

It was generally assumed that the old constitutions of the Five Civilized Tribes were abrogated and repealed, and the only legitimate office was the office of chief. There was no provision for an elected council. With the Act of 1970, 84 Stat. 1091, Choctaw citizens could "popularly select" our chiefs. There was no provision for election of a council, so basically, Choctaws were represented by a chief, with no council or assistant chief, from 1906 to 1979.2

In 1976, Creek citizens sued the Creek chief and the Secretary of the Interior challenging the refusal to recognize the 1867 Creek Constitution and the Creek National Council. Harjo v. Kleppe, 410 F.Supp. 1110 (D.C. 1976). In a long and involved opinion, the Court ruled that the 1867 Constitution was never abrogated or repealed, but the mechanism for amending the constitution was not available. Therefore, the Court ordered new constitutional reform. This case opened the door for other tribes in eastern Oklahoma to challenge the state of affairs in their government.

Choctaw citizens, with Chickasaw citizens, filed suit in 1977 in Cravatt v. Andrus, No. 79-2276, and Morris v. Andrus, No. 792127, combined on appeal as Morris v. Watt, 640 F.2d 404 (1981), in the same court that decided Harjo a year earlier. Given the precedent of Harjo v. Kleppe, it was highly likely that the outcome of these cases would follow Harjo.

Hollis Roberts was elected chief in a 1978 special election after the death of Chief David Gardner.3 His campaign platform included returning "the tribal government back to the people under the 1860 constitution.4

In a letter from Roger Finzel, National Indian Youth Council, dated May 22, 1978, to Bob Rabon, Finzel attempted to settle Morris v. Andrus since he was under the impression that Roberts supported a settlement. Rabon responded May 25, 1978, with Finzel sending a memo to all plaintiffs in the Choctaw case. In the memo, Finzel documents that Rabon's position on the Constitution was different than Roberts' and he was having difficulty in pinning Roberts down on his position.

When Chief Roberts was substituted for Chief Gardner as defendant, he, "with the help of a Hugo attorney and consultants," wrote the 1979 Constitution that was presented to the Choctaw citizens for approval.5 Since Choctaws had adopted a constitution, Defendant Roberts argued, the suit pending in the District of Columbia District Court should be dismissed. The Court agreed.

On appeal, the Court rejected the 1979 constitution because of "a general failure on the part of the Choctaw and Chickasaw governments to allow the tribal members to decide basic questions concerning any fundamental changes in the proposed new constitution." 640 F.2d at 415. Additionally, "the efforts made by the Choctaw and Chickasaw governments in educating the electorate prior to the referenda did not satisfy the requirements set out in Harjo.'' Id. The Court remanded with instructions to present fundamental difference between the 1860 Constitution and the proposed 1979 Constitution to the Choctaw voters, and to hold elections at polls instead of absentee ballots. Because of the federal Court Order, the 1983 Constitution was adopted.

HISTORY OF CRIMINAL JURISDICTION IN EASTERN OKLAHOMA

Tribal criminal jurisdiction over Indians in Indian Country is complete, inherent and exclusive. See generally, Morrison and Moore, "How to Identify an Indian Law Case," 23 Clearinghouse Review 862, 868 (Nov. 1989). In eastern Oklahoma, from statehood until 1978 it was "often wrongly assumed that there was no Indian country for purposes of criminal jurisdiction in Oklahoma." Clinton, Newton and Price, American Indian Law (3rd ed 1991), 1164.

In U.S. v. Burnett, 777 F.2d 593 (10th Cir. 1985), the Court held that Indian allotments were Indian County. In U.S. v. Sands, 968 F.2d 1058 (10th Cir. 1992), the Court held that allotments of individual Indian citizens were Indian Country, with criminal jurisdiction outside the authority of the state of Oklahoma. It is accepted principle that the federal and tribal governments share criminal jurisdiction in eastern Oklahoma, with the federal government having authority over felonies and tribes having authority over misdemeanors. Tribal authority, however, is subject to the authority granted the government by tribal citizens.

The Choctaw Nation has inherent authority to establish a tribal court which could exercise criminal and civil jurisdiction over its citizens. This authority has not been limited by the U.S. Congress. Muscogee (Creek) Nation v. Hodel, 851 F.2d 1439 (10th Cir. 1988). In Hodel, the Department of Interior argued that the Curtis Act and the Creek Agreement did not preserve the Creek tribal courts. In rejecting this argument, however, the Court distinguished the Choctaw and Chickasaw Nations from the Creek Nation in the opinion, Id. at 1442.

The Court held that the Creek Nation has the power to establish tribal courts with civil and criminal jurisdiction, "subject, of course, to the limitation imposed by statutes generally applicable to all tribes." Id. at 1146-7 (emphasis added, bold emphasis original). This authority is also subject to the limitations imposed by the citizens of the tribe.

FEDERAL POLICY OF SELF-DETERMINATION

The federal policy toward Indian tribes is self determination. In an April 29, 1994, Presidential Memorandum to the Heads of Executive Departments and Agencies, President Clinton said: "The purpose of these principles is to clarify our responsibility to ensure that the Federal Government operates within a government-to-government relationship with federally recognized Native American tribes. I am strongly committed to building a more effective day-to-day working relationship reflecting respect for the rights of self-government due the sovereign tribal governments." 59 Fed. Reg. 22951, quoted in Explanatory notes to the Indian Self-Determination Act, 25 U.S.C. Section 450. Choctaw Nation, through the tribal prosecutor, attempts to turn this federal policy on its ear. It attempts to argue that the federal government decided the extent of criminal jurisdiction of this Court by a Self-Determination Act contract from the Bureau of Indian Affairs (BIA) to the Choctaw Nation. It argues that this conveyance of jurisdiction can be made, over the objections of the Choctaw citizens whom have voted not to extend such jurisdiction, and in spite of the federal policy of allowing the Choctaw citizens self-determination. Choctaw citizens have determined for themselves that criminal jurisdiction will not be extended to this Court. The BIA cannot convey such jurisdiction by contract. As Fred Ragsdale, Jr., testified at the March 5, 1996, hearing:

"... I know of no case in which, nor statute that congress has ever granted an agency that allows them to confer jurisdiction... I know of no case that allows a federal agency to confer jurisdiction that was not otherwise there." Tr. p. 21.

It is ironic that in a December 5, 1995 issue of the Denison Herald, Robert Rabon said "The U.S. Constitution has no more appliciablity in Tushkahoma than the Guam Constitution."6 Yet the logical conclusion of his argument is that even the Choctaw Constitution does not apply to the Choctaw Nation, only a federal contract governs this Court. If Rabon's argument had merit, it would mean that, since criminal jurisdiction is conferred by means of a federal contract by a federal agency, all provisions of the U.S. Constitution, including the Bill of Rights, would be available to Defendants. This basically means that decisions of the Supreme Court could be overturned by administrative action. Santa Clara Pueblo v. Martinez, 98 Sup. Ct. Rep. 1670, 436 U.S. 47 (1978) (stating the Bill of Rights does not apply to Indian County). Decisions of the U.S. Supreme Court apply to both the BIA and the Choctaw Nation. One or the other, or both, cannot overturn its decision by contract.

The Choctaw Nation has inherent authority to establish a tribal court. However, this authority is subject to the limitations imposed by the federal government and tribal citizens. The citizens of the Choctaw Nation were swayed by the arguments presented by Chief Roberts in 1983 regarding the establishment of a tribal court, and voted against a court which would have general civil, criminal and probate jurisdiction. "We have no business getting in the criminal and probate jurisdiction," Roberts argued in the eleven fundamental differences between the 1979 and 1860 Choctaw Constitutions. Given their arrests for exercising free speech, this is one statement by Roberts with which the Defendants can agree.

There was case law in 1983 that established that Indian Country existed in the Choctaw Nation over which it could exercise criminal jurisdiction. However, Roberts chose to ignore the jurisdictional authority, and asked the Choctaw voters to do likewise. Now, at this late date, Roberts, as chief of the Choctaw Nation through his representative Robert Rabon, cannot ask this court to ignore his wishes in 1983 and the wishes of the Choctaw people when they adopted the 1983 Constitution. Chief Roberts, through his representative Robert Rabon, cannot ask this court to defy the Choctaw Constitution merely because he has changed his mind about criminal jurisdiction to fit his political agenda.

Respectfully submitted,

1. The site of the treaty signing was near a poisoned spring. Choctaws saw rabbits staggering from convulsions after drinking the polluted water. It looked as if the rabbits were dancing, hence the name, Dancing Rabbit. The treaty site is located in Noxubee County, Mississippi. Noxubee means "to stink" or "bad smelling water." Morrison and Howe, "The Sewage of Foreigners: An Examination of the Historical Precedent for Modern Waste Disposal on Indian Lands," 39 Federal Bar Journal 370 (July 1992). The setting, with such a background, should have been an indication of the things to come under this treaty. (back)

2. In Hollis Roberts' July 1991 campaign material, Chahta Gazette, he said "Did you know that the current Chief of the Choctaw Nation, Hollis E. Roberts, gave the government back to the people after he was elected? At that time, the Chief had 100% control. He petitioned for a constitutional change that gave the Tribal Council 50% of the decision making power to make for a more fair and democratic way of government." Bob Rabon stated in the April 1991 issue of the Bishinik, "Chief Roberts' greatest accomplishment, in his opinion, was giving the governing power of the Choctaw Nation back to the Choctaw people. 'No more will someone in Washington, D.C. be telling you who will be your chief."' Administrative people have repeated these statements in one form or another. See Hugo Daily News, March 29, 1979.

In reality, Choctaws could elect our chief in 1970, long before Roberts was elected chief. He had nothing to do with the change of federal law. Furthermore, he was a defendant in the lawsuit brought by Choctaw citizens demanding constitutional reform, and he actively impeded the process. See Letter dated May 22, 1978, from Roger Finzel to Bob Rabon; Letter dated May 25, 1978, from Bob Rabon to Finzel; Memo dated June 2, 1978, from Finzel to All Plaintiffs in the Choctaw Case.

To be fair, Roberts had indulged in the same propaganda as other tribal leaders when they assend to power. The agenda is to rewrite the tribal history and his own personal history to begin with his regime. After years in power, their public relations campaign is accepted as truth in all places, except within the members who live under their dictatorship. (back)

3. There was no office of assistant chief in the Choctaw Nation from 1906 until the 1979 Constitution. Roberts? propaganda campaign has stated "Assistant Chief, he automatically finished out Gardner's term of office." Chahta Gazette, Roberts' campaign material in 1987. (back)

4. Campaign ad from Hugo Daily News attached, emphasis added by others. (back)

5. Undated article from Hugo Daily News attached. (back)

6. Choctaw Arrest of Four May Test Tribal Law," Jim Bennett, Dennison Herald, December 5, 1995. (back)

I certify that a true and correct copy of the foregoing was sent first call mail, postage prepaid, to Robert L. Rabon, Jr., Choctaw Prosecutor, Rabon, Wolf & Rabon, Post Office Box 726, Hugo, OK 74743, and to Judge James Wolfe, 115 S. Broadway, Hugo, OK 74743.