The Osage Nation Supreme Court dismissed Principal Chief John Red Eagle’s request for a restraining order against the Third Osage Nation Congress from meeting today. With his request dismissed, the Congress will meet for it’s ninth special session at 10 a.m. to consider a motion for removal of Red Eagle.
According to Congressman William “Kugee” Supernaw’sNotes to the Nation, the congress is meeting for the sole purpose of considering a motion for removal. The actual vote on the motion for removal won’t happen until Friday morning at 9 a.m. Eight members must vote "yes" to move forward with a removal trial. If eight votes are garnered, the congress will call another session to set a date for the trial. Red Eagle will be given 20 calendar days to prepare for the trial.
“At the conclusion of the trial on one or more of the Articles of Removal, should the Chief be found guilty on any Article, he could be removed from office,” Supernaw wrote. “Ten affirmative votes are required for any Article of Removal to be sustained; in other words, 10 of the 12 members of Congress must find the accused guilty of at least one Article.”
On Nov. 7, Chief John Red Eagle filed suit in the ON Supreme Court against the ON Congress, Congressional Speaker Raymond Red Corn and Congresswoman Alice Buffalohead, who both sat on the Congressional Select Committee of Inquiry with Buffalohead serving as chairwoman. The committee was charged with investigating the 15 allegations of wrongdoing against Chief Red Eagle before issuing its recent report.
Chief Red Eagle is requesting a declaratory judgment from the High Court "to determine the constitutionality of the removal process conducted by Osage Nation Congress beginning July 8, 2013 to present under Removal Rules promulgated by Congress."
In his suit, Chief Red Eagle argues Congress designed a “flawed investigative and recommendation process,” which it used to form a five-member Select Committee of Inquiry to investigate the 15 allegations of wrongdoing placed against the Chief this summer.
The now-disbanded SCOI issued its report Oct. 28 and recommended six of the 15 allegations be placed on a motion for removal trial for Chief Red Eagle. According to the SCOI report, the committee is recommending the six allegations be placed "on a motion for removal of Principal Chief John Red Eagle" for causes which include malfeasance in office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the government process and undermining the integrity of the office.
In Red Eagle’s motion for an expedited temporary restraining order filed Nov. 13, he asked the Supreme Court to prevent the Congress from meeting Nov. 14 to consider a motion to hold a removal trial for Chief Red Eagle based on the committee’s recommendations.
Chief Red Eagle, through his attorneys, argued he “has suffered particularized injury, including damage to reputation and character assassination” caused by the actions of Congress and/or the select committee that can be remedied by court action. The Chief argued the Congressional rules on removing elected/ appointed officials are unconstitutional and questioned whether those rules violate Constitutional provisions including Separation of Powers, Removal (of officials) Article and the Supremacy Clause that designates the 2006 Osage Constitution as the “supreme law” for the Nation and people within its jurisdiction.
For example, the Chief questions whether the Congressional rules calling for a removal trial violates the separation of powers because it directs the role of the Supreme Court, which falls under the Nation’s Judicial Branch. The Chief also questions the makeup of the five-Congress member SCOI because those members will also serve as jurors in a removal trial – should one be held, therefore “setting up a significant portion of Congress in the dual and mutually exclusive roles of prosecutor and grand jury notwithstanding the Constitution’s designation of Congress as a trial jury.”
The Chief’s lawsuit requested a briefing schedule from the Supreme Court to allow both parties in this case "to fully apprise the Court of the arguments" and to consider oral arguments to address questions and concerns in the case.
Eight Congressional member votes are required for the Congress to hold a removal trial. The Constitution section on Removal states removal of ON officers shall originate in the Congress and shall only occur with cause. The constitution also adds: “The Osage Nation Congress may prescribe additional rules and procedures that are necessary to implement the provisions of this Article.”
In his request for the expedited restraining order, Chief Red Eagle argued he “and the Osage Nation would suffer irreparable harm should the Special Session proceed because of continued Legislative Branch action under fundamentally flawed Removal Rules” and “an injunction is in the public interest because it preserves the status quo, is an aid to the Court’s jurisdiction, and prevents further government turmoil by preventing the Legislative Branch from exacerbating constitutional violations.”
Chief Red Eagle’s attorney Kirke Kickingbird filed the documents on the Chief’s behalf. Kickingbird and fellow Oklahoma City law firm associate James Burson accompanied Chief Red Eagle or attended the SCOI investigation meetings on his behalf as allowed by the committee. The Chief was interviewed regarding the allegations on one day of the investigation at the committee’s invitation.
Also in the temporary restraining order request, Kickingbird wrote: “From a governmental viewpoint, the more important question right now is not whether Chief Red Eagle deserves to be removed, but whether the process to obtain removal of any Osage official is constitutionally sound. The Removal Rules and process are manifestly flawed, unjust and unconstitutional.”
“As Justice Oliver Wendell Holmes maintained: ‘Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected … It is also desirable that the government should not itself foster crimes … We have to choose, and for my part I think it is less evil that some criminals should escape than that the government should play an ignoble part.’”
Red Corn and Buffalohead responded to the filings through Congressional legal counsel Loyed “Trey” Gill on Nov. 13 asking the Supreme Court to dismiss the restraining order request arguing there is no immediacy requirement for it.
In their response, Red Corn and Buffalohead say the Chief “is in no danger of immediate or irreparable harm other than the harm he has caused to himself.” The Congress is sticking by its process used thus far to investigate the 15 allegations of wrongdoing that were the subject of the two-month SCOI investigation.
Red Corn and Buffalohead argue: the Congress “is now faced with making a decision on whether to consider and vote on a motion for removal of Chief Red Eagle, which if passed with eight affirmative votes would initiate the process of holding a removal trial. The vote on a trial for removal will not remove the Petitioner from office, nor will it change his status as Principal Chief of the Osage Nation.”
“If a removal trial is ordered, the Petitioner must be given at least 20 calendar days to prepare for a trial in which he is afforded the opportunity to present documentary evidence, present witnesses and cross-examine witnesses pursuant to his Constitutional right to due process at a removal trial under Article XII,” Red Corn and Buffalohead argue.
This case is the second filed by an ON government branch requesting a declaratory judgment since Congress passed it into law last year.
The declaratory judgment law (ONCA 12-103) gives original jurisdiction to the Supreme Court “for actions of declaratory judgment between the Legislative and Executive Branches of the Osage Nation over interpretation of the language or provisions contained in the Osage Constitution.” With the declaratory judgment law in place, legal disputes regarding constitutional provisions between the legislative and executive branches may bypass the trial court, which is typically the jurisdictional starting point in Osage tribal court cases.
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