July 31, 1997

Ms. Scott Kayla Morrison
Attomey at Law
P. 0. Box 637
Wilburton, OK 74578

Dear Ms. Morrison:

I understand that on July 26, 1997, you mailed a subpoena, issued. by the Court Clerk of the Court of Indian 0ffenses for the Choctaw Nation, to this office which purported to require the appearance of Sheldon Sperling, First Assistant United States Attomey (FAUSA), to appear as a defense witness in Case Nos. 95-01, 05 on August 15, 1997. The desired testimony, according to your letter, would generally relate to the criminal trial recently conducted by this office in United States v. Hollis Roberts (Case No. CR-95-35-S) and would specifically address, "the fact that tribal employees may be hired and fired at will by the chief, and the tribal police serve at the will of the chief." Pursuant to Department of Justice regulations, Mr. Sperling immediately informed me of the subpoena.

Subpart B of Part 16 of Title 281 Code of Federal Regulations, as amended by Attomey General Order No. 919-80, effective December 4, 1980, published at 45 Fed. Reg. 83,210 (1980), provides that no present or former employee of the Department of Justice may testify in response to a subpoena without obtaining prior approval by an appropriate Department official. I understand that Mr. Sperling has recently spoken with you by telephone in an attempt to explain why compliance with the subpoena is problematic and to assist you in locating other methods of proof. As the Department official who is initially empowered to grant approval for Mr. Sperling to testify, I hereby respectfully notify you that such approval will not be forthcoming for the following reasons.
Fist, the C.F.R Court lacks the jurisdiction to compel the attendance of FAUSA Sperling. The court is a court of limited jurisdiction and may exercise no more authority over federal officials than a trial court Possesses. 25 CYR § 11. 104. Tribal courts lack jurisdiction over federal officials. United States v. Yakima Tribal court of the Yakima Indian Nation, 806 F.2d 853 (9th Cir. 1986); Louis v- United States 1997 WL 339141 (D. N. Mex. June 10, 1997). Additionally, the court lacks jurisdiction over Mr. Sperling personally as he is a non-Indian with no connection to the Choctaw Tribe outside his actions as a federal official. See generally, Strate v. A- I Contractors, 117 S.Ct. 1404 (1997).

Second, even if jurisdiction were present, the subpoena is inadequate to compel FAUSA Sperling's attendance. Service by mail does not constitute adequate and proper service. Moreover, the subpoena, served outside Of the Indian Country over which the court does have jurisdiction, was issued by the Court Clerk and not a magistrate as required by 25 C.F.R. § 11.31 1(c).

Third, Mr. Sperling is not a necessary witness. This is a pretrial hearing at which the rules of evidence should not apply. You can obtain the proof you need by introducing a copy of the Choctaw Constitution, as this office did during the recent criminal trial. Presumably, court would take judicial notice of its own Constitution. Should you require any additional recitation of the testimony presented in the criminal trial, the trial transcript may be employed. Copies of the transcript, or portions thereof, may be ordered by contacting Stephen Allen, Judge Seay's court reporter at (918) 6872437.

Finally, the lengthy federal prosecution against Hollis Roberts which culminated in a guilty verdict in June 1997, has not yet concluded. The defendant has not yet been sentenced nor has a presentence report been completed. As Mr. Sperling indicated to you by telephone, this office will do nothing which could jeopardize the integrity of this federal Prosecution and due brave women who look to this prosecution for vindication. As You are aware, the defense argued at trial that the federal proceeding was conducted to advance the political agenda of your client. The appearance of the lead prosecutor as an unnecessary defense witness in the C.F.R. case may well complicate and adversely affect the continuing federal prosecution in any number of ways.

In conclusion, I Will not grant Mr. Sperling approval to testify and I respectfully request that the subpoena be withdrawn Immediately. Otherwise, we will be compelled to take appropriate action to insure that the subpoena is quashed. We will also forward this matter to the Department Of Justice in anticipation of a final denial, by the Deputy or Associate Attomey General, pursuant to 28 C.F.R. §16.25. in light of your ability to obtain the desired proof from other sources, I sincerely trust that such extreme actions will not be necessary in this case.

JR:Isk

cc: Donna Jo Heflin, Court Clerk