No. CIV 98-011-S

DRY, et al,

Petitioners,

VS. CHOCTAW CFR COURT, et al,

Respondents.

Petitioners are non-ward federal citizens arrested on federal land. To require them to exhaust tribal remedies would violate their right to equal protection of the law. If, however, exhaustion applies to them, they have exhausted what tribal remedies that are available.

PROPOSITION 1: IF EXHAUSTION IS REQUIRED, THE PETITIONERS HAVE EXHAUSTED THE TRIBAL REMEDIES AVAILABLE.

Petitioners Burlison and McConnell filed an appeal in January 1997 in the Choctaw Court of Indian Appeals. Counsel spoke with Choctaw court clerk Donna Heflin regarding the status of that appeal in the spring of 1997. Counsel was informed that the appeals court judges may not have been approved by the Bureau of Indian Affairs (BIA) and could not hear appeals. Counsel then spoke with Michael Deberry, chief judge for the Choctaw Court of Indian Appeals. Judge Deberry did not know when such approval would be forthcoming. In response to a Freedom of Information Act request, Acting Area Director James Fields informed counsel on April 7, 1999, that no record of approval of the judges appointed to the Choctaw Court of Indian Appeals could be found at the Muskogee Area Office. Letter attached as Exhibit A.

Since there are no judges for the Choctaw appellate court has been approved by the BIA, there is no appeals court to hear any appeal filed by Petitioners. The Petitioners have exhausted tribal remedies because there are no additional tribal remedies available to them.

PROPOSITION II. PETITIONERS ARE NON-WARD FEDERAL CITIZENS.

Petitioners are federal citizens through treaty and Congressional acts. In the Treaty of Dancing Rabbit Creek of 1830, 7 Stat. 333, the United States obligated itself to "protect the Choctaws from domestic strife and from foreign enemies on the same principles that the citizens of the United States are protected." Article V. This Article defines Choctaw members relationship to the federal goverment, and the tribe's relationship to members. Fleming v. McCurtain 215 U.S. 56. At the time of the Treaty, the only federal citizens were non-wards, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831), and white, Dred Scott v. Sandford, 60 U.S. (How.) 393) (1856). The Treaty, because it conveyed land to the tribe in fee simple, did not create a trust or wardship of tribal members in the tribe.1 Fleming v. McCurtain 215 U.S. 56, 59 (1909). Non-Indians (non-wards) were outside the criminal Jurisdiction of the tribe, Oliphant v. Suquamish Indian Tribe, 43 5 U.S. 191 (1978), Treaty of Dancing Rabbit Creek Art. IV,2 and are outside the authority of Court of Indian 0ffenses, 25 CFR Part 11. 103 (civil jurisdiction), making exhaustion of tribal remedies moot.

This treaty is interpreted as the Indians would have understood it. Tulee v. Washington, 315 U.S. 681, 684-85 (1942), Minnesota v. Mille Lac Band of Chippewa Indians U.S. (1999),. The federal government is responsible for enforcing Indian treaty rights, Minnesota v. Mille Lac Band of Chippewa Indians_ which in this case, the treaty right belongs to Choctaw citizens. The Treaty of Dancing Rabbit Creek has not been abrogated. Oklahoma Tax Commission v. Chickasaw Nation, 115 S.Ct. 224 (1995).

With no trust or guardianship of tribal members in the tribe, it rests, if at all, with the federal government. The federal government cannot contract away its responsibility to tribal members to the tribe, a ward of the federal government, Cherokee Nation v. Georgia, as it attempted to do by contracting federal criminal jurisdiction to the tribe through an Indian Self-Determination Act, 25 U.S.C. §450, contract. By attempting to contract with the tribe, the federal government is saying one of two things: the tribe is no longer a ward of the federal government and a true sovereign to exercise the sovereign power granted to it by tribal members under the tribal governing document; or the federal government contracted its trust responsbility to tribal members to the tribe. These are conflicting concepts and cannot exist simultaneously. If the tribe is sovereign, it can only exercise the authority granted it by its members under the tribal constitution. With no criminal jursidiction to exercise under the Choctaw constitution, and no guardianship vested in the tribe, requiring Petitioners to exhaust tribal remedies is moot. If the tribe is exercising federal criminal jurisdiction, exhaustion is inapplicable, assuming this power can be contracted to the tribe.

PROPOSITION III: CHOCTAW COUNCIL HOUSE, TUSKAHOMA, IS FEDERAL LAND.

The location of the arrests of petitioners was the Choctaw Council House, Tuskahoma, Oklahoma. The title to Choctaw land is held by the U.S. for benefit of the Choctaw Nation. U.S. v. Roberts, 904 F.Supp. 1262 (E.D. Okla. 1995). The United States has paramount title to the location of the arrest, as it does of all Choctaw land. The U.S. has paramount authority over the tribe. Talton v. Mayes, 163 U.S. 376, 380 (1896). The location of the arrest is federal land where the U.S. constitution applies.

PROPOSITION IV: CHOCTAW COURT OF INDIAN OFFENSES IS A FEDERAL COURT WITH LIMITED JURISDICTION.

The Choctaw Court of Indian 0ffenses is a federal court, not a tribal court, of limited jurisdiction. 25 CFR Part 11. 100(a)( 19)(ii). It is established pursuant to federal regulations. Designated tribal court is presumptively CFR courts. U.S. v. Red Lake Band of Chippewa Indians, 827 F.2d 380, 383 (8th Cir. 1987). This court functions "in part as a federal agency and in part as a tribal agency." Colliflower v. Garland 342 F.2d 369, 379 (9th Cir. 1965), Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir. 1969), cert. denied 3 98 U.S, 903 (1970). Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 891 (2nd Cir. 1996). In U.S. v. Red Lake Band of Chippewa Indians, 827 F.2d 380 (8th Cir. 1987), as here, the Red Lake court, a CFR court established pursuant to 25 CFR Part 11, was a federal agency with its records federal agency records. In Red Lake as here, the tribe argued that because the court was an independent tribal court, its records were not subject to 25 CFR Part 11. 1. The tribe argued it had availed itself to be exempted from BIA regulations pursuant to 25 CFR Part I 1.001(c). 25 CFR Part 11. 100(c) provides that the code of federal regulation applies until such time as the tribe adopts a law and order code in accordance with its constitution and by-laws with notice to the Assistant Secretary and "the name of the tribe has been deleted from the listing of Courts of Indian 0ffenses under Sec. 11. 100(a)." The court held, however, that Red Lake offered no evidence of establishing the necessary elements for exemption under Part 11. 100(c), and granted summary judgment to the U.S. Here, the Choctaw CFR Court of Indian 0ffenses does not argue it has exempted itself from the CFR regulations, to become a tribal court. It does, however, state it is a CFR court established pursuant to 25 CFR Part 11, and is listed as such.

As a federal CFR court, 28 U.S.C. § 2241(c)(1) & (3) would support jurisdiction for review of a petition for habeas corpus by a person "in custody under or by color of the authority of the United States" or "in violation of the Constitution... of the United States." Colliflower v. Garland, 342 F.2d at 379, and such review can take place prior to exhaustion of tribal remedies. Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir. 1969), cert. denied 3 98 U.S. 903 (1970).

PROPOSITION V: REQUIRING EXHAUSTION OF TRIBAL REMEDIES BY TRIBAL MEMBERS VIOLATES EQUAL PROTECTION.

Non-Indians and non-wards are not required to exhaust tribal remedies prior to hearing a writ of habeas corpus. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Requiring Indians to exhaust tribal remedies prior to hearing of the same writ would create an impermissible racial classification that violates the equal protection guarantee of the U.S. Constitution.

Even if the court finds that Petitioners are not equal to federal citizens in their relationship to the federal government, requiring tribal members to exhaust tribal remedies creates
an impermissible racial classification. Non-member Indians arrested by a tribe are not required to exhaust tribal remedies prior to a federal court hearing a writ of habeas corpus. Duro v. Reina 495 U.S. 676 (1990), Means v. Northern Cheyenne Tribal Court, 154 F.3d 941 (9th Cir. 1998). Tribal members were not required to exhaust in Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2nd Cir. 1996).

In Dawavendewa vs. Salt River Project Agricultural Improvement and Power District, F.3d (9th Cir. 1997), the court held that under the case law and the regulations interpreting Title VII of the Civil Rights Act of 1964, tribal affiliation easily falls within the definition of "national origin." In Dawavendewa, a Hopi was not hired because preference was given to Navajo employees. In that case, as here, the discrimination was not based on a broad classification of "Indian," but on classification as a member of a specific tribe. Petitioners are required to exhaust tribal remedies because of membership in a specific tribe, not because they belong to a broad classification of "Indian." This narrow classification creates a special racial classification and violates the equal protection guarantee of the U.S. Constitution.

1. Allotment of Choctaw land with title held in trust by the U.S. did create a trust responsibility in the U.S., as guardian of the Choctaw wards, to continue at the pleasure of Congress. However, the Indian Self-Determination Act, 25 U.S.C. § 450, et sea., provided for contracting with tribes for Indian programs administered by the Bureau of Indian Affairs. Guardians, however, cannot contract with wards to administer the responsibility of the guardian. Therefore, by statute, it can be argued, the Choctaw Nation, and its members, were freed from the wardship status. The wards contracting for guardianship programs is in conflict with the continuing ward status, even though the Act attempts to continue the wardship status. By Executive Order 13084, May 14, 1998, 63 Fed. Reg. 27655, President Clinton declared the federal executive agencies shall deal with tribes on a ""government to government" basis. This is in conflict with the continuing wardship status, as this Executive Order attempts to re-affirm. Tribes are either wards, with the U.S. as guardian, or truly sovereigns. Tribes cannot be both. (back)

2 "But the Choctaws should be Treaty be ratified, express a wish that Congress may grant to the Choctaws the right of punishing by their own laws, any white man who shall come into their nation, and infringe any of their national regulations." (back)

I hereby certify that on this 19 day of April, 1999, 1 placed in first class U.S. mail, postage prepaid a true and correct copy of the above and foregoing to Robert Rabon, Rabon, Wolfe, & Rabon, Post Office Box 726, Hugo, OK 74742.

Attachment: Exhibit "A" - April 7, 1999 Letter from Jim Fields, Acting Director, Muskogee Area BIA