Martha L. King, OBA # 30786 Thomasina Real Bird, Esq ... · Thomasina Real Bird, Esq. FREDERICKS...

Martha L. King, OBA # 30786

Thomasina Real Bird, Esq.

FREDERICKS PEEBLES & MORGAN LLP

1900 Plaza Drive

Louisville, Colorado 80027

Telephone: (303) 673-9600

Facsimile: (303) 673-9155

[email protected]

[email protected]

Attorneys for Cheyenne and Arapaho

Tribes' Executive Branch

IN THE U.S. DISTRICT COURT FOR

THE WESTERN DISTRICT OF OKLAHOMA

CHEYENNE AND ARAPAHO TRIBES,

on its own behalf, and as parens patriae

on behalf of its members; and

CHEYENNE AND ARAPAHO TRIBES'

EXECUTIVE BRANCH,

Plaintiffs,

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Case No.: 5:12-cv-00514-D

v. )

) AMENDED

VERIFIED COMPLAINT

FIRST BANK AND TRUST COMPANY;

and DOUG HAUGHT, in his official

capacity as a District Judge, State of

Oklahoma,

Defendants.

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COME NOW Plaintiff Cheyenne and Arapaho Tribes ("Tribes") by and through

Attorney General Charles B. Morris and Assistant Attorney General Kimberly Richey,

and Plaintiff Cheyenne and Arapaho Executive Branch ("Executive Branch")

(collectively "Plaintiffs"), by and through Fredericks Peebles and Morgan LLP (Martha

L. King and Thomasina Real Bird), and hereby file this Amended Verified Complaint. In

Case 5:12-cv-00514-R Document 16 Filed 05/15/12 Page 1 of 27

mailto:[email protected]


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support of its action, Plaintiffs state as follows:

PARTIES

1. The Cheyenne and Arapaho Tribes are a federally-recognized Indian tribe.

2. The Tribes are before the Court in dual capacities. For some claims, the

Tribes are suing in their capacity as a bank depositor and a "person" within the meaning

of 42 U.S.C. § 1983. For these claims, the Tribes sue as a private property owner seeking

to vindicate property rights against illegal deprivation.

3. For other claims, the Tribes are suing in parens patriae to vindicate its

members' rights, privileges and immunities secured by the Constitution and laws. For

other claims, the Tribes are suing as a sovereign government seeking to vindicate

sovereign rights and laws.

4. Janice Prairie Chief-Boswell ("Governor Boswell") is Governor of the

Tribes, oversees the Executive Branch, and is vested with authority to execute the laws of

the Tribes. Cheyenne and Arapaho Tribes Constitution ("Chey. & Arap. Const."), art.

VII, § 4(a); and art. X; Affidavit of Governor Janice Prairie Chief-Boswell, attached

hereto as Exhibit 1; and Affidavit of now-former Supreme Court Justice Ryland Rivas,

attached hereto as Exhibit 2. As Governor of the Tribes, she oversees the Executive

Branch, and is vested with authority to oversee expenditures of government revenues.

Chey. & Arap. Const., art. VII, § 4(a). She is also a voter and cast a vote for herself as

Governor in the 2009 elections. Affidavit of Governor Janice Prairie Chief-Boswell,

attached hereto as supra Exhibit 1.

5. First Bank and Trust Company ("Defendant First Bank") is an Oklahoma


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banking corporation with its principal place of business located at 510 Frisco, Clinton,

Oklahoma 73601.

6. Doug Haught ("Defendant Haught") is a District Court Judge for the Custer

County District Court and is sued in his official capacity.

JURISDICTION AND VENUE

7. This is a civil action arising under the Constitution, laws, or treaties of the

United States, and this Court has jurisdiction over this action pursuant to 28 U.S.C. §

1331.

8. This is a civil action brought by an Indian tribe with a body duly-

recognized by the Secretary of the Interior, wherein the matter in controversy arose

under the Constitution, laws, and treaties of the United States. 28 U.S.C. § 1362.

9. This Court possesses pendant or supplemental jurisdiction for all state law

claims. 28 U.S.C. § 1367.

FACTS

10. The Tribes maintain certain accounts that contain funds appropriated by

Congress to administer a variety of federal programs through the Indian Self-

Determination and Education Assistance Act ("ISDEAA"); by the state of Oklahoma to

administer a variety of state programs; and by the Tribes to administer tribal programs

and to supplement the state and federal programs.

11. The funds are for contract administration of the following: BIA - Adult

Education Program Grant, dated February 16, 2012, attached hereto as Exhibit 3; BIA -

Aid to Tribal Government Program Grant dated December 30, 2010, attached hereto as


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Exhibit 4; BIA - Emergency Youth Shelter Program Grant dated December 30, 2010,

attached hereto as Exhibit 5; BIA - Higher Education Program Grant dated January 31,

2012, attached hereto as Exhibit 6; BIA - ICW Program Grant, dated June 5, 2008,

attached hereto as Exhibit 7; BIA - Job Placement & Training (JP&T) Program Grant,

dated January 31, 2012, attached hereto as Exhibit 8; BIA - Johnson O'Malley Program

Grant, dated January 31, 2012, attached hereto as Exhibit 9; BIA - ARRA Design

Contract, dated December 16, 2011, attached hereto as Exhibit 10; BIA - Cantonment

Reserve Project Award, dated September 22, 2011, attached hereto as Exhibit 11; BIA -

Clinton IHS Construction Award, dated September 22, 2011, attached hereto as Exhibit

12; BIA - Clinton IHS Road Project Award, dated August 4, 2011, attached hereto as

Exhibit 13; BIA - Tribal Transportation Improvement Planning Award, dated March 11,

2011, attached hereto as Exhibit 14; BIA - Social Services Program Grant, dated

January 31, 2012, attached hereto as Exhibit 15; BIA - Tribal Court Program Grant,

dated January 31, 2012, attached hereto as Exhibit 16; DHHS – Affordable Care Act –

MIPPA Grant, dated September 27, 2010, attached hereto as Exhibit 17; DHHS –

Grants for Native Americans Grant, dated April 1, 2012, attached hereto as Exhibit 18;

DHHS – Native American Caregiver Supp Grant, dated April 1, 2012, attached hereto

as Exhibit 19; DHHS – Nutrition Services Incentive Program Grant, dated April 24,

2012, attached hereto as Exhibit 20; DHHS – Child Care Development Fund Grant,

dated January 15, 2012, attached hereto as Exhibit 21; DHHS – Community Services

Block Grant, dated January 12, 2012, attached hereto as Exhibit 22; DHHS –Notice of


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Award (NOA), dated February 29, 2012, attached hereto as Exhibit 23; DHHS – Low

Income Home Energy Assistance Program Grant, dated January 17, 2012, attached

hereto as Exhibit 24; DHHS – Native Employment Works Program Grant, dated July

11, 2011, attached hereto as Exhibit 25; DHHS – Financial Assistance Award (FAA),

dated September 20, 2010, attached hereto as Exhibit 26; DHHS - Notice of Award,

dated April 3, 2012, attached hereto as Exhibit 27; DHHS – Child Welfare Social

Services Program Grant, dated February 22, 2012, attached hereto as Exhibit 28; DHHS

– Promoting Safe and Stable Families Program Grant, dated April 19, 2012, attached

hereto as Exhibit 29; DHHS – Financial Assistance Award (FAA) - Early Learning

Mentor Coach, dated September 17, 2010, attached hereto as Exhibit 30; DHHS –

Indian Health Service NOA (Notice of Award) Award – Special Diabetes Programs for

Indians, dated April 1, 2010, attached hereto as Exhibit 31; DHHS – Modification of

Contract Alcohol/Substance Abuse Services – Oklahoma City Area Indian Health

Service Contract, dated December 21, 2011, attached hereto as Exhibit 32; DHSS –

Modification of Contract – Community Health Representatives, dated December 21,

2011, attached hereto as Exhibit 33; DHSS – Modification of Contract – Emergency

Medical Service, dated December 21, 2011, attached hereto as Exhibit 34; DHSS –

Modification of Contract – Health Education, dated December 21, 2011, attached hereto

as Exhibit 35; Public Telecommunications Facilities Program - Department of

Commerce – Grant – to construct a digital low power television station in Concho,

dated September 24, 2010, attached hereto as Exhibit 36; Rehabilitation Services –


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American Indians with Disabilities Grant, dated July 28, 2010, attached hereto as

Exhibit 37; U.S. Department of Energy Grant for Cheyenne & Arapaho Energy Project,

dated September 29, 2009, attached hereto as Exhibit 38; U.S. Dept. of Education -

Grant Award Notification – Indian Education – Grants to Local Educational Agencies,

dated July 29, 2011, attached hereto as Exhibit 39; Department of Justice – Bureau of

Justice Assistant-FY-08- Indian Alcohol and Substance Abuse Program Grant, dated

September 5, 2008, attached hereto as Exhibit 40; Department of Justice - OVW FY09

Grants to Indian Tribal Governments for Cheyenne and Arapaho Tribes Domestic

Violence Program Grant, dated September 28, 2009, attached hereto as Exhibit 41; U.S.

Department of Justice – Changed Project Period for grant Comprehensive Approaches

to Sex Offender Management Training and Technical Assistance to reflect a 10 month

period, new project start date October 1, 2008 - Grant, dated September 8, 2011,

attached hereto as Exhibit 42; Department of Justice - Office of Justice Programs- for

Tribal Youth Program (Cheyenne and Arapaho Tribal Youth Project PRIDE (PRIDE)

Juvenile Delinquency Prevention Program) Grant, dated September 14, 2011, attached

hereto as Exhibit 43; Grant Modification – Notice of Obligation – U.S. Dept of Labor /

ETA Division of Federal Assistant re programs Workforce Investment Act (WIA) Youth

Activities – Native Americans and WIA Native Americans Grant, dated July 27, 2011,

attached hereto as Exhibit 44; U.S. Dept. of Transportation Federal Transit

Administration – ARRA Tribal Transit Grant, dated January 7, 2010, attached hereto as

Exhibit 45; U.S. Environmental Protection Agency (EPA) – General Assistance


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Program Grant, dated September 29, 2011, attached hereto as Exhibit 46; U.S.

Environmental Protection Agency (EPA) – Solid Waste Management Program Grant,

dated January 11, 2012, attached hereto as Exhibit 47; U.S. Dept. of Housing and Urban

Development – Indian Community Development Block Grant Program (ICDBG) Grant,

dated March 23, 2011, attached hereto as Exhibit 48; Institute of Museum and Library

Services -2011 Basic Library Services Grant, dated June 21, 2011, attached hereto as

Exhibit 49; Intertribal Buffalo Council – FY 2011 Herd Development Grant, dated

September 30, 2011, attached hereto as Exhibit 50; Department of Interior, National

Park Service, Sand Creek Massacre National Historic Site Award, dated January 24,

2012, attached hereto as Exhibit 51; U.S. Dept. of Interior – National Park Services

(NPS) Grant, dated October 1, 2010, attached hereto as Exhibit 52; Oklahoma State

Department of Health letter re purchase order 3409014942 and Purchase Order –

Amount $144,000.00 Contract, dated September 29, 2011, attached hereto as Exhibit

53; Department of Rehabilitation Services Innovation and Expansion Activities Contract

and Purchase Order re Job Placement Services to and for American Indians with

Disabilities for Rehab Client Professional Services Contract, dated November 22, 2011,

attached hereto as Exhibit 54; USDA Food and Nutrition Service – for Cheyenne -

Arapaho Tribes' Food Distribution Program Grant, dated January 27, 2012, attached

hereto as Exhibit 55; USDA Food and Nutrition Service - (FY) 2012 Food Distribution

Program Nutrition Education (FDPNE) Grant, dated February 28, 2012, attached hereto

as Exhibit 56; DHHS - Promoting Safe and Stable Families Program Grant, dated


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August 19, 2011, attached hereto as Exhibit 57.

12. The funds are used for provision of essential governmental services

including:

24/7 emergency paramedic services;

24/7 "advanced pre-hospital services" with advanced level trained medics;

24/7 critical care transport;

ground emergency medical service including first response and ambulatory

service in western Oklahoma with the protocol to perform lifesaving

techniques such as rapid sequence intubation as in the event of a heart, lung or

liver failure;

medical equipment including diabetic supplies, wheelchairs, oxygen machines,

and blood pressure monitors;

transport of persons to dialysis, cardiology, podiatry, urology, and

chemotherapy appointments;

critical lifesaving drugs including insulin, high blood pressure medication,

antibiotics, hypertension medication, as well as cancer medication;

home health care services to the disabled and bedridden;

temporary shelters during emergencies;

emergency response during disasters;

firefighter services;

repair to dams and watersheds;

investigation and provision of adult protective services for those physically,

emotionally, sexually, or financially abused and neglected;

investigation and provision of child protective services for abused, neglected,

or exploited children;

substance abuse program services under Court order;

substance abuse program services for those who are changing their lives;

food, clothing, shelter assistance;

a head start at education for children; and

foster care placement for children that are homeless and in need of aid.

13. On April 24, 2012, at approximately 3:25 p.m. Defendant First Bank, by

and through counsel, called undersigned counsel and indicated it was freezing the Tribes'

funds because it noticed the Tribes were in the process of moving their accounts to Inter

Bank as indicated by certain checks the Tribes had written thereto.

14. On April 24, 2012, at approximately 3:35 p.m. Defendant First Bank, by


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and through counsel, emailed a copy of a "Notice of Administrative Freeze." Notice of

Administrative Freeze, attached to Complaint at Exhibit 1. That document indicated it

would remain in effect “until otherwise ordered by the Court.”

15. That Notice of Administrative Freeze had the effect of seizing the Tribes'

funds without due process of law.

16. Defendant First Bank has placed in jeopardy the contracts referenced in ¶

11. April 30, 2012 letter from Constance Fox; and April 30, 2012 email from Kimberly

Woodard, attached to Complaint at Exhibit 2 and Exhibit 3, respectively.

17. Defendant First Bank filed a Petition against the Tribes, Governor

Boswell, and then-Lieutenant Governor1 Leslie Wandrie-Harjo ("Wandrie") in the

Custer County District Court requesting a declaration of its liability concerning the

Tribes' bank accounts held by Defendant First Bank. That suit will require a

determination as to who the Tribes' Governor is, and therefore who the Tribes’ signatore

is. Petition in First Bank and Trust Co. v. Cheyenne and Arapaho Tribes, et al. ("State

Court Action"), Case No. CV-2011-53, attached hereto as Exhibit 58. Affidavit of

Governor Janice Prairie Chief-Boswell, attached hereto as supra Exhibit 1.

18. The State Court Action was assigned to Defendant Haught.

19. The Tribes have not waived their sovereign immunity, nor have they

consented to the State Court Action brought by Defendant First Bank and currently

pending before Defendant Haught. Affidavit of Governor Janice Prairie Chief-Boswell,

attached hereto as supra Exhibit 1.

1 Wandrie was impeached on April 17, 2012.


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20. The Tribes have not waived Governor Boswell's sovereign immunity, nor

have they consented to the State Court Action brought by Defendant First Bank and

currently pending before Defendant Haught. Affidavit of Governor Janice Prairie Chief-

Boswell, attached hereto as supra Exhibit 1.

21. The Chey. & Arap. Const. specifically reserves the Tribes' sovereign

immunity and provides a specific process to waive such sovereign immunity:

The Tribes shall possess Sovereign Immunity. … Only the Legislature and

the Tribal Council may authorize a waiver of Sovereign Immunity by law.

Any authorization by the Legislature to waive Sovereign Immunity shall be

specific, for a limited scope and duration, in writing, and shall be limited to

a maximum of one hundred thousand dollars per party. Any authorization

by the Tribal Council to waive Sovereign Immunity shall be specific, for a

limited scope and duration, and in writing.

Id., art. X, § 1. Chey. & Arap. Const., attached hereto as Exhibit 59.

22. The Chey. & Arap. Const. specifically reserves Governor Boswell's

sovereign immunity:

The Tribes and its Officials and Employees acting in their official capacity

or within the scope of their authority shall be immune from suit except for

suits in equity filed exclusively in the courts of the Tribes by any party

subject to the Jurisdiction of the Tribes to enforce rights and duties

established by law or this Constitution.

Id., art. X, § 2. Chey. & Arap. Const.

23. Congress has not waived the Tribes' sovereign immunity nor has Congress

consented that the State Court Action be brought against the Tribes. Affidavit of

Governor Janice Prairie Chief-Boswell, attached hereto as supra Exhibit 1.

24. Congress has not waived Governor Boswell's sovereign immunity nor has

Congress consented that the State Court Action be brought against the Tribal Officials.


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Affidavit of Governor Janice Prairie Chief-Boswell, attached hereto as supra Exhibit 1.

25. Asserting lack of subject matter jurisdiction and sovereign immunity, the

Tribes and Governor Boswell moved to dismiss the State Court Action for lack of

jurisdiction. Joint Consolidated Motion to Dismiss in the State Court Action, attached

hereto as Exhibit 60.

26. Despite declaratory cases that restrict lawsuits against Indian tribes and

their officials in cases where neither Congress nor the tribes have waived sovereign

immunity, Defendant Haught declined to dismiss the State Court Action. Transcript of

the April 16, 2012 hearing in the State Court Action, attached hereto as Exhibit 61; and

April 16, 2012 Court Order/Minute in the State Court Action, attached hereto as Exhibit

62.

27. Defendant First Bank's decision to bring the State Court Action, and

Defendant Haught's decision to maintain jurisdiction of the State Court Action, harm the

rights of the Tribes to govern themselves by their own laws, as well as harm the rights of

individual tribal members to elect and be led by a Governor of their choosing.

28. Defendant First Bank's filing of the State Court Action and the Notice of

Administrative Freeze have put in imminent risk the health, safety and welfare of the

Tribes' members and citizens of the state of Oklahoma, who depend upon the Tribes'

provision of essential governmental services.

29. Defendant First Bank has impaired the Tribes' property rights by seizing the

Tribes' funds necessary for ISDEAA administration and self-governance.


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30. A substantial segment of the Tribes' membership is affected by

Defendants' deprivation of their rights, privileges and immunities secured by the

Constitution and laws of the United States.

31. Plaintiff Tribes are entitled to the immunities and privileges available to

federally-acknowledged Indian tribes by virtue of their government-to-government

relationship with the United States. U.S. Const. art 1, § 1, cl. 3; Worcester v. State of

Georgia, 31 U.S. 515, 517 (1832); and 25 C.F.R. § 83.2.

32. The above-stated actions are in violation of federal law, including but not

limited to, rights secured by the Constitution and laws of the United States, privileges and

immunities, the Indian Commerce Clause, treaties, Oklahoma Enabling Act, and various

congressional acts) comprehensively occupying the field of federal program service

delivery to the Tribes and its members.

33. As a property owner whose funds were deposited in Defendant First Bank

and whose funds were wrongfully seized by Defendant First Bank, Plaintiff Tribes are a

"person" within the meaning of 42 U.S.C. § 1983, no different from any other bank

depositor seeking redress for the illegal seizure of their property.

34. The above-stated actions of Defendant First Bank are "under color of state

law" to support a 42 U.S.C. § 1983 action as Defendant First Bank invoked color of state

law by bringing a case against the Tribes and their Governor who are both immune from

suit; securing a single summons from a clerk on the Tribes and their Governor; securing a

court's exercise of state jurisdiction over the Tribes' and their Governor's despite their

express challenge to personal and subject matter jurisdiction; seizing the Tribes' property


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without due process of law, even though that property is needed for carrying out federal

and state contractual obligations and the provision of essential governmental services;

referencing state law on contracts and the uniform commercial code to support its extra-

judicial seizure without due process of law; indicating it will not release the Tribes' funds

until a court exercises additional jurisdiction; defending against this federal action with

the argument that the state court has jurisdiction; and by telling Plaintiffs that it expected

that they would have [been forced] to state court to receive injunctive relief.

35. The above-stated actions of Defendant Haught are "under color of state

law" which supports a 42 U.S.C. § 1983 action. North Georgia Finishing, Inc. v. Di-

Chem, 419 U.S. 601 (1975); Edmonson v. Leesville Concrete Company, 500 U.S. 614

(1991); and Lugar v. Edmondson Oil Company, 457 U.S. 457 U.S. 922 (1982).

COUNTS

COUNT 1

DEPRIVATION OF RIGHTS SECURED BY THE

CONSTITUTION AND LAWS OF THE UNITED STATES, 42 U.S.C. § 1983

(Against Defendant First Bank)

36. Plaintiffs reassert and incorporate by reference the allegations contained in

paragraphs 1-35, as though set forth fully herein.

37. Defendant First Bank has deprived Plaintiffs of rights secured by the

Constitution and laws of the United States, most specifically the Tribes' rights in property

by extra-judicially seizing the Tribes' funds.

38. Defendant Haught has deprived Plaintiffs of rights secured by the

Constitution and laws of the United States, by failing to dismiss the State Court Action


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and by allowing Defendant First Bank to place an "Administrative Freeze" on the Tribes'

funds.

39. A substantial segment of the Tribes' membership is affected by Defendants'

actions including detrimentally affecting all tribal members' health, safety, welfare, and

well-being.

40. As a result of Defendants' actions, Plaintiffs have suffered damages in an

amount to be established at trial.

COUNT 2

DEPRIVATION OF PRIVILEGES AND IMMUNITIES SECURED BY THE

CONSTITUTION AND LAWS OF UNITED STATES

(Against Defendant First Bank and Defendant Haught)



42. Defendants are depriving the Plaintiffs of rights, privileges and immunities

secured to Plaintiffs by the Constitution and laws of the United States, most particularly

the Plaintiffs' rights, privileges, and immunities to sovereign immunity. Kiowa v.

Hoover, 150 F.3d 1163, 1168 (10th Cir. 1998).

43. Defendants are violating the declaratory decree contained in Kiowa Tribe

of Oklahoma v. Mfg. Tech., Inc., 523 U.S. 751 (1998) that held that "[a]s a matter of

federal law, an Indian tribe is subject to suit only where Congress has authorized the suit

or the tribe has waived its immunity." Id. at 754.

44. The United States Supreme Court has already determined that neither the

federal district courts, nor the state courts, have subject matter jurisdiction over internal


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sovereign matters of tribes. This is consistent with the United States Constitution, laws

of the United States, and laws of the tribes. Similarly, this Court, in Wandrie-Harjo v.

Chief-Boswell, 2011 WL 7807743 (W.D. Okla. 2011), determined it would abstain from

deciding internal sovereign matters of the Tribes. Nevertheless, Defendant First Bank

and Defendant Haught have gone against the afore-mentioned precedent and will decide

who the Tribes' governor is, and therefore who the signatore is for such accounts. This

case seeks to enjoin them from proceeding against the Tribes in an effort to decide who

the Tribes' Governor and signatore is.

45. Defendant First Bank has already indicated to this court that "Boswell is

identified as the Governor of the Tribe and the authorized signatory on account

documents covering the various accounts maintained by the Tribe at First Bank. Thus

under the agreements governing the accounts at First Bank, Boswell is the authorized

signor of items processed in such accounts." Wandrie-Harjo v. Chief-Boswell,

Counterclaim and Cross-Claim, 5:11-cv-00171-F (W.D. Okla. 2011), ¶ 4. Additionally,

it indicated "under the agreements governing the accounts at First Bank, Boswell is the

authorized signor of items processed in such accounts and First Bank is entitled to rely

upon the authorization of Boswell in paying funds from the accounts maintained by the

Tribe at First Bank." Id. at ¶ 7.

46. A substantial segment of the Tribes' membership is affected by Defendants'

actions including the detrimental affect on all tribal members' health, safety, welfare, and

well-being.


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47. As a result of Defendants' actions, Plaintiffs have suffered damages in an

amount to be established at trial.

COUNT 3

VIOLATION OF THE INDIAN COMMERCE CLAUSE




49. Defendants deprived Plaintiffs' rights secured by the Indian Commerce

Clause.

50. As a result, Plaintiffs have suffered in an amount to be estimated at trial.

COUNT 4

VIOLATION OF TREATY RIGHTS




52. Plaintiff Tribes are a federally-recognized Tribe with all of their retained

sovereignty and have never surrendered by treaty their sovereign, retained and inherent

right to sovereign immunity.

53. Defendants are depriving the Plaintiffs of rights, privileges and immunities

secured to the Tribes by government-to-government treaties entered into with the United

States government, most particularly the Tribes' right to be free from state interference

with its sovereignty.

54. Defendants are unlawfully interfering with Plaintiffs' federally protected

rights of Indian Tribes and their officials to sovereign immunity.


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55. Defendants have no authority to interfere with Plaintiffs' right to be free

from state lawsuits.

56. As a result, Plaintiffs have suffered damages in an amount to be established

at trial.

COUNT 5

VIOLATION OF THE OKLAHOMA ENABLING ACT




58. Defendants deprived Plaintiffs' rights secured by the Oklahoma Enabling

Act.

59. As a result, Plaintiffs have suffered in an amount to be established at trial.

COUNT 6

VIOLATION OF THE SUPREMACY CLAUSE




61. Defendants are violating the Supremacy Clause in Article VI of the United

States Constitution.

62. As a result, Plaintiffs have suffered in an amount to be established at trial.

COUNT 7

INTENTIONAL INTERFERENCE WITH CONTRACTS

(Against Defendant First Bank)




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64. Plaintiffs have numerous contracts both with the federal government of the

United States and the state of Oklahoma to administer a variety of essential governmental

services and programs.

65. Defendant First Bank knew, or under the circumstances reasonably should

have known about these contracts.

66. The decision of Defendant First Bank to seize the federal, state, and tribal

funds was intentional.

67. To freeze these funds, Defendant First Bank used improper or unfair

means.

68. As a direct result of the inability to access the funds for essential

governmental services, Plaintiffs have suffered damages in an amount to be determined at

trial.

COUNT 8

WRIT OF PROHIBITORY INJUNCTION




70. Unless the "Administrative Freeze" is dissolved, Plaintiffs will continue to

sustain imminent and irreparable harm.

71. Plaintiffs request the Court to enjoin the "Administrative Freeze" and

release Plaintiffs funds to Plaintiffs for their immediate use.


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72. Unless Defendant First Bank and Defendant Haught are enjoined from

proceeding with the State Court Action, Plaintiffs will continue to sustain imminent and

irreparable harm.

73. Plaintiffs' full enjoyment of their sovereign immunity is irrevocably lost

once the Tribes are compelled to endure the burdens of litigation. Hoover, at 1172, citing

Seminole Tribe v. Florida, 517 U.S. 44 (1996).

74. Any intrusion upon an Indian tribe's sovereignty constitutes irreparable

injury as a matter of law. Kiowa Tribe of Oklahoma v. Mfg. Tech., Inc., 523 U.S. 751

(1998); and Kiowa v. Hoover, 150 F.3d 1163, 1168 (10th Cir. 1998).

75. Plaintiffs are likely to succeed on the merits of their claim that the state of

Oklahoma has no jurisdiction over the Tribes and the Governor in the absence of a

written clear and unequivocal waiver of sovereign immunity approved by the Tribes'

Legislature and Tribal Council.

76. The injuries to Plaintiffs far outweigh any harm caused to Defendants by

issuance of the injunctive relief requested.

77. The prohibitory injunction would not be contrary to the public interest

rather the public interest would best be served by the issuance of the injunctive relief

requested.

78. Defendants are violating the declaratory decree contained in Kiowa Tribe

of Oklahoma v. Mfg. Tech., Inc., 523 U.S. 751 (1998) which held that "[a]s a matter of

federal law, an Indian tribe is subject to suit only where Congress has authorized the suit

or the tribe has waived its immunity." Id. at 754.


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79. Defendants are violating the declaratory decree contained in Kiowa which

held that "[T]ribal immunity is a matter of federal law and is not subject to diminution

by the States[;]" and "[a]s sovereigns or quasi sovereigns, the Indian Nations enjoyed

immunity "from judicial attack" absent consent to be sued." Id. at 757, quoting U.S. v.

U.S. Fidelity & Guaranty Co., 309 U.S. 506 (1940).

80. Plaintiffs are entitled to an injunction against Defendants from

prospectively prosecuting and exercising jurisdiction in the State Court Action and from

prospective use of state court processes to interfere with Plaintiffs' sovereign immunities.

COUNT 9

DECLARATORY JUDGMENT, 28 U.S.C. § 2201-2202




82. Plaintiffs seek a declaration that Defendant First Bank's "Administrative

Freeze":

a. deprived Plaintiffs of rights secured by the Constitution and laws of the

United States;

b. deprived Plaintiffs of privileges and immunities secured by the

Constitution;

c. deprived Plaintiffs of rights secured by the Indian Commerce Clause;

d. deprived Plaintiffs of rights secured by the treaties;

e. deprived Plaintiffs of rights secured by the Oklahoma Enabling Act;


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f. deprived Plaintiffs of rights secured by the various congressional acts as

above-referenced and have the effect of comprehensively occupying the field of program

service delivery to Indians persons;

g. were taken "under color of state law";

h. jeopardize tribal members' health, safety and welfare of the Tribes;

i. is an impermissible interference with the Tribes' right to govern themselves;

and

j. would constitute an act in excess of Defendant First Bank's authority.

83. Plaintiffs are entitled to a declaration as set forth herein.

COUNT 10

DECLARATORY JUDGMENT, 28 U.S.C. § 2201-2202




85. Defendant First Bank's decision to file the State Court Action and

Defendant Haught's decision to exercise jurisdiction in the State Court Action to proceed

violates Plaintiffs' rights, privileges and immunities secured to the Tribes by the

Constitution and laws of the United States, most particularly Plaintiffs' right to sovereign

immunity. Kiowa v. Hoover, 150 F.3d 1163, 1168 (10th Cir. 1998).

86. Plaintiffs are entitled to a declaration pursuant to the Declaratory Judgment

Act, 28 U.S.C. §§ 2201-2202, that Defendants are violating the rights, privileges, and

immunities of sovereign immunity secured to the Plaintiffs by the Constitution and laws

of the United States.


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87. Plaintiffs are also entitled to a declaration pursuant to the Declaratory

Judgment Act, 28 U.S.C. §§ 2201-2202, that any effort by Defendant Haught to proceed

with the State Court Action would constitute an act in excess of Defendant Haught's

authority and jurisdiction.

88. Plaintiffs are also entitled to a declaration pursuant to the Declaratory

Judgment Act, 28 U.S.C. §§ 2201-2202, that Defendants are using state court processes

to interfere with Plaintiffs' rights, privileges and immunities secured by the Constitution

and laws of the United States and by case law on sovereign immunity.

COUNT 11

ATTORNEYS' FEES, 42 U.S.C. § 1988




90. Plaintiffs have incurred substantial costs of suit and attorneys' fees in

prosecuting their claims against the Defendants.

91. Plaintiffs respectfully request that the Court order Defendants, or any of

them, to pay Plaintiffs' reasonable costs and attorneys' fees pursuant to 42 U.S.C. § 1988.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request the court find and adjudge as

follows:

1. For judgment in favor of Plaintiffs for actual damages in an amount to be

proven at trial;


23

2. For an order enjoining the "Administrative Freeze" and releasing Plaintiffs'

funds to Plaintiffs for their immediate use;

3. A prohibition against Defendant First Bank from charging bank fees and

charges, including attorneys' fees, for Defendant's act of "Administrative Freeze";

4. For a declaration pursuant to the Declaratory Judgment Act, 28 U.S.C. §§

2201-2202, that Defendants are violating the rights, privileges, and immunities secured to

Plaintiffs by the Constitution and laws of the United States;

5. For a declaration that pursuant to the Declaratory Judgment Act, 28 U.S.C.

§§ 2201-2202, any effort by Defendant Haught to proceed with the State Court Action

constitutes an act in excess of Defendant Haught's authority;

6. For a declaration that pursuant to the Declaratory Judgment Act, 28 U.S.C.

§§2201-2202, that Defendants are using state court processes to interfere with Plaintiffs'

rights, privileges, and immunities secured to Plaintiffs by the Constitution and laws of the

United States;

7. For prospective injunctive relief prohibiting Defendants from prosecuting

and exercising jurisdiction in the State Court Action and from the use of state court

processes to interfere with Plaintiffs' sovereign immunities;

8. An award to the Tribes of their reasonable attorneys' fees incurred herein

pursuant to 42 U.S.C. § 1988;

9. All other costs and fees as allowed by law; and

10. Such other additional relief as the Court deems just and equitable.


24

Respectfully submitted this 15th day of May, 2012.


/s/ Martha L. King

(Filing Attorney)

Martha L. King, OBA #: 30786

Thomasina Real Bird, Esq.


1900 Plaza Drive

Louisville, Colorado 80027

Telephone: (303) 673-9600

Facsimile: (303) 673-9155

Email: [email protected]


ATTORNEYS FOR CHEYENNE AND ARAPAHO

TRIBES' EXECUTIVE BRANCH

(Signed copy of document bearing signature of

Filing Attorney is being maintained in the office

of Filing Attorney)

CHEYENNE AND ARAPAHO TRIBES

/s/ Charles B. Morris

(Signed by Filing Attorney with permission of

Attorney)

Charles B. Morris, Attorney General

Kimberly Richey, Assistant Attorney General

Cheyenne and Arapaho Tribes

P.O. Box 32

Concho, Oklahoma 73022

Telephone: (405) 422-7421

Facsimile: (405) 422-8220



ATTORNEYS FOR THE CHEYENNE AND

ARAPAHO TRIBES

(Signed copy of document bearing signature of

Attorney is being maintained in the office of Attorney)




25

CERTIFICATE OF SERVICE

Undersigned hereby certifies that on the 15th

day of May, 2012, I electronically

filed the foregoing AMENDED VERIFIED COMPLAINT with the Clerk of the Court

using the CM/ECF system which will send notification via email of such filing to all

parties of record as follows:

Scott Meacham, OBA #13216

Adam C. Hall, OBA #21202

CROWE & DUNLEVY, P.C.

20 North Broadway, Suite 1800

Oklahoma City, Oklahoma 73102-8273

Phone: (405) 235-7700

Facsimile: (405) 239-6651

[email protected]

[email protected]

ATTORNEYS FOR DEFENDANT FIRST

BANK AND TRUST COMPANY

/s/ Martha L. King

Martha L. King






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