Photo caption: The Osage Nation Trial Court building on the Osage Nation campus in Pawhuska. Osage News File Photo
The Osage Nation Supreme Court has dismissed Congresswoman Shannon Edwards' lawsuit for lack of subject matter jurisdiction, eight days after it was filed.
SCO-2020-01 was filed on May 12 against Chief Justice Meredith Drent, Associate Justice Elizabeth Lohah Homer, the Osage Nation Congress, Speaker Joe Tillman, the Select Committee of Inquiry, and its chairperson Congresswoman Alice Goodfox. It was dismissed on May 20.
According to Edwards’ 26-page petition, she asked the Supreme Court to enforce a 2014 ruling that invalidated certain provisions of the Congressional Rules that govern its removal process.
Along with the cost of attorney fees, Edwards asked the court to rescind the appointment of the Congressional Select Committee of Inquiry and to issue an “immediate Show Cause Order to the Osage Congress as to why it should not be restrained from undertaking any Select Committee of Inquiry proceedings.”
In the 6-page dismissal signed by all three Justices, under Article VIII, section 2 of the Osage Constitution, the Supreme Court “may hear appeals, compel inferior Courts or their officials to act in accordance with the law, and exercise such other jurisdiction as may be conferred by statute.” The Supreme Court also presides over declaratory judgment cases between the Legislative and Executive branches of government, to resolve disputes and interpret language in the Constitution.
Edwards is also the original sponsor of the 2012 Declaratory Judgement Act, which grants the Supreme Court limited original jurisdiction.
“The petition before us meets none of these criteria. The petition does not allege a dispute between the Legislative and Executive branches and does not seek a declaratory judgment,” according to the dismissal. “Rather, it seeks injunctive relief in a dispute between Petitioner, in her individual capacity as a Member of Congress, and, among others, the Osage Congress and Osage Supreme Court.”
The dismissal also addressed the fact that Edwards sued two of the three sitting Justices, leaving only Justice Drew Pierce. This caused the Supreme Court to apply the “rule of necessity,” which in common law principle requires a judge “to continue to preside over a matter even where that judge has an interest in the matter and where there is no provision for calling another judge to preside over the matter in a court of last resort.”
The Osage News asked Edwards if she had any comment on the dismissal. Her attorney, G. Calvin Sharpe of Oklahoma City-based Phillips Murrah, P.C., responded:
“Given the clear findings and mandate by the Osage Nation Supreme Court in the [John] Red Eagle case, we took what we felt was the quickest avenue to correct the wrongful Select Committee of Inquiry selection process. We were not able to be heard directly by the Supreme Court. That leaves us a different path through the Osage Nation Trial Court. That will be more time consuming and expensive, but it is an option."
A question of ethics
On May 19, the day before the Supreme Court dismissed Edwards’ lawsuit, the Congressional Affairs committee considered the law firm that would represent the Congress against Edwards in the Supreme Court.
The Congressional Affairs committee is made up of five members: Chairwoman Second Speaker Paula Stabler, Congresswomen Edwards and Maria Whitehorn, and Congressmen Eli Potts and RJ Walker.
Edwards participated in the discussion.
Edwards, Whitehorn and Potts all expressed their dissatisfaction with Tulsa-based Barrow & Grimm, P.C., who represented the Select Committee of Inquiry. The SCOI recommended a removal trial for Edwards and barred other Congress members from attending executive sessions of the committee. Whitehorn and Potts both allege that Barrow & Grimm was responsible for giving the committee counsel to bar members of Congress and as a result they allege the committee violated Congressional Rules by doing so. Whitehorn said she “had a real problem with that.”
The Congressional Affairs committee is charged with selecting legal counsel for the Congress. According to the Congressional Rules, the Congressional Affairs committee can select, or direct the Speaker to select, any previously approved law firm that has represented the Congress in the past.
“Isn’t Crowe and Dunlevy previously approved by the Congressional Affairs committee?” Edwards asked.
Congressional legal counsel Loyed “Trey” Gill, said yes.
“So, that’s a possible representation?” she said.
Walker asked to be recognized.
“It seems like we’re getting into the details and I find it at least questionable that Congresswoman Edwards is participating in the discussion, but why would we want to consider another law firm that isn’t up to speed on where we are and how we got here?” he said.
Potts said since the work of the committee of inquiry is done and the litigation involving Edwards was a separate issue, Crowe & Dunlevy was up to speed on the Congressional rules and was capable. He motioned to direct the Speaker to instruct Crowe & Dunlevy to respond to SCO-2020-01, not to exceed $25,000 and to report to the Congressional Affairs committee with a letter of intent.
Whitehorn seconded his motion for discussion.
The motion passed with three “yes” votes coming from Edwards, Potts and Whitehorn. Two “no” votes from Walker and Stabler.
After the vote, Walker asked to be recognized and said, “My question is ...” and was interrupted by Edwards who said, “Vote count please.”
Walker responded, “It’s 3-2, it passed! But, do you not have a conflict, Congresswoman Edwards? It directly is related to you. I would not have voted for that. Yay or nay. With a simple abstention.”
However, Edwards did reconsider her vote and changed her vote to an abstention the next day. Edwards is also the original sponsor of the 2008 Osage Nation Code of Ethics law.
On May 20, the Congressional Affairs committee met again. As soon as the prayer was over, Edwards motioned to reconsider the vote for Crowe & Dunlevy even though it wasn’t on the agenda.
“The item on the agenda pertained to a budget or related litigation, when you look at the motion, the motion goes beyond a budget. So, I believe I was voting in furtherance of setting a budget but having seen the motion now, it goes beyond that so I would like for us to reconsider that vote and the motion. And, I want to change my vote to an abstention,” Edwards said.
After questions, deliberation and discussion, the committee voted again on Potts motion to select Crowe & Dunlevy with a budget of $25,000 to represent the Congress against Edwards in the Supreme Court.
Potts and Whitehorn voted “yes.” Walker and Stabler voted “no,” and Edwards abstained. The motion failed.
After more discussion about the vote and whether Edwards should have voted or abstained in the first place, Whitehorn announced she had received an email and the Supreme Court had dismissed Edwards’ lawsuit.
“So, I think everything’s moot now, quite possibly,” she said.
Congress will hold an 8th Special Session on June 2 at 10 a.m. The sole item of business is to consider the “Motion for Removal of Congresswoman Shannon Edwards.” The vote will determine whether Congress will conduct a removal trial.
[Editor's Note: This article was updated to reflect that Congresswoman Shannon Edwards is the original sponsor for both the Declaratory Judgement Act and the Osage Nation Code of Ethics.]