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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
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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)
41. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-40, as though set forth fully herein.
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
(Against Defendant First Bank and Defendant Haught)
48. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-47, as though set forth fully herein.
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
(Against Defendant First Bank and Defendant Haught)
51. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-50, as though set forth fully herein.
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
(Against Defendant First Bank and Defendant Haught)
57. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-56, as though set forth fully herein.
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
(Against Defendant First Bank and Defendant Haught)
60. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-59, as though set forth fully herein.
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)
63. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-62, as though set forth fully herein.
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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
(Against Defendant First Bank and Defendant Haught)
69. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-68, as though set forth fully herein.
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
(Against Defendant First Bank and Defendant Haught)
81. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-80, as though set forth fully herein.
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
(Against Defendant First Bank and Defendant Haught)
84. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-83, as though set forth fully herein.
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
(Against Defendant First Bank and Defendant Haught)
89. Plaintiffs reassert and incorporate by reference the allegations contained in
paragraphs 1-88, as though set forth fully herein.
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;
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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.
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Respectfully submitted this 15th day of May, 2012.
FREDERICKS PEEBLES & MORGAN LLP
/s/ Martha L. King
(Filing Attorney)
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: [email protected]
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
Email: [email protected]
Email: [email protected]
ATTORNEYS FOR THE CHEYENNE AND
ARAPAHO TRIBES
(Signed copy of document bearing signature of
Attorney is being maintained in the office of Attorney)
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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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