ROBERT L. GARDNER, )
)
Plaintiff, )
)
vs. ) Case No. C-82-3
)
HOLLIS ROBERTS, in his capacity )
of Chief of the Choctaw Nation of )
Oklahoma and the Choctaw Nation )
of Oklahoma, )
)
Defendant. )


O R D E R

NOW on this 14th day of September, 1982, the above styled and numbered case came on for hearing on the Defendant's Demurrer filed herein.

The party Plaintiff, Robert L. Gardner, and her attorney, Gary S. Pitchlynn, were present in open court. Bob Rabon, attorney for the Defendants, Choctaw Nation of Oklahoma and Hollis Roberts, was present in open court.

After hearing argument and deliberating on the demurrer, it is

ORDERED, ADJUDGED and DECREED the demurrer is sustained and the case is hereby dismissed.

FINDINGS OF THE COURT

1. The Court finds that the Choctaw Nation of Oklahoma is a sovereign government and enjoyed immunity from suit unless and until appropriate action or authority waiving sovereign immunity is granted by the tribe.

2. The Court further finds that pursuant to Article VI, Section 7, and Article VII, Section 8, of the Provisional Constitution of the Choctaw Nation of Oklahoma, the Chief of the Choctaw Nation of Oklahoma can summarily remove the Assistant Chief from office and the decision to remove him is totally discretionary with the chief.

Dated this 14th day of September 1982.

JOE C. TAYLOR ED CURTIS CHARLEY G. JONES

Presiding Judge Judge Judge

During the recess we did discuss the arguments that you've each made and discussed the matters among the three of us and arrived at a unanimous decision as far as what our ruling would be on the demurrer. I will try, if I can, the way I was going to address some of the matters that were argued or points that were argued to during your argument and to deliver our ruling on the demurrers. Of course Judge Jones and Judge Curtis can supplement anything that I say if they feel they need to. As we viewed the petition and the relief that was requested in the petitions, it appeared that the two plaintiffs were asking reinstatement and then were also seeking the money damages that were prayed for in the petition -- in the petitions, each of the petitions from the tribe...well also from the Chief. But it is my understanding from comments that the plaintiffs thought there was at least a question as far as whether or not the Chief should be personally liable on those sums of money from a legal standpoint. They may think he should be from a moral standpoint. On a legal standpoint, what we are going to rule insofar as the demurrers are concerned is this. We are not going to treat the ruling in these two cases as any kind of Marbury versus Madison, prouncement as to the extent of our jurisdiction is concerned, however, we are going to go ahead and interpret a couple of portions of the Constitution, because we feel like that given the facts as pled in the petition, we should probably go ahead and do that. Those are Article VII, Section 8, and Article VI, Section 7. It appears to the three of us that under the provisions of Article VI, Section 7, that the Chief ... the Assistant Chief can be removed summarily by the Chief, and that is due to his status as an officer of the tribe, officers that are enumerated in Article V, Section 2. Now then in as far as Ruth Morris is concerned we are from view the policy ... personnel policies procedures that are apparently in effect in this instance.

Now as far as this business of sovereign immunity is concerned, and it is not a part of our order sustaining the demurrers, but if the plaintiffs were to go to the Tribal Council for legislation allowing them to bring suit against the tribe for these moneys that they say the tribe owes them, then ... we are not saying that we would still ... that we would rule differently. In other words that the sovereign immunity would have been waived and the Court would entertain a suit necessarily, but we are saying that we would take another look at it if that was done. That is just a little something that is thrown in free, I guess. In other words, if they go the Tribal Council and the Tribal Council adopts legislation allowing them to bring suit against the tribe for the moneys that they say that they owe them, then the Court might entertain such a lawsuit.

Chief Judge Joe Taylor