By Shannon Shaw
Osage News

The Osage Nation Supreme Court has decided its first case and has ruled in favor of the Osage Nation Congress.

“We’re delighted,” said Osage Nation Congressional Speaker Archie Mason. “I know that it was a first time experience, a historic event as well for the Supreme Court to render their first decision and again, it was just a good feeling to be a part of something for the first time and we in congress are just elated and feel very good that the court ruled in our favor and we’ll proceed from there.”

The Supreme Court, in its 12-page opinion filed Dec. 11, didn’t rule on the constitutionality of the Independent Press Act of 2008, but whether or not Osage Nation Principal Chief Jim Gray, or any subsequent chief, has the right to sue the Osage Nation Congress over the constitutionality of a law without successfully showing an injured party. The Supreme Court ruled he did not, reversed the decision of the lower court and gave instructions to the lower court to dismiss Gray’s suit for lack of jurisdiction.

The opinion, delivered by Supreme Court Justice Meredith Drent, came nearly four months after the Supreme Court met for the first time August 19. The Supreme Court has three justices; Drent, Chief Justice Charles Lohah and Justice Jeanine Logan.

Gray alleged that by being forced to sign the Independent Press Act he would be “violating his oath by executing a law he believes is unconstitutional.” Such an injury, according to the opinion, is institutional in nature to the office of the chief and was not a personal injury. The opinion also said that Gray doesn’t decide what laws are constitutional, that power is vested in the judiciary.

“To allow the type of injury alleged by Chief Gray to be judicially cognizable would be to authorize the Principal Chief, and conceivably any member of the Executive branch, to refuse to execute, administer or enforce a law because they believed the law was unconstitutional, without asserting more,” according to the opinion. “It would open the doors to any member of the Executive to file a claim requesting an opinion on the constitutionality of any given law.”

Gray alleged in his suit, filed July 14, 2008, ONCA 08-07 the Independent Press Act, written by Congresswoman Faren Anderson and passed into law by the congress after a veto override, attempted to regulate the structure and the content of the Osage News and that the act would also leave the Osage News subject to legislative control through its appropriation power. The lower court ruled in favor of the chief and ruled the act null and void.

Congressional Speaker Archie Mason filed an appeal seven days after the judgment was made, followed the court’s rules of filing an appeal and filed a Post-Judgment Motion to Intervene and the motion was denied by the trial court as untimely filed. Mason then filed an Amended Petition in Error to include the court’s denial of the motion to intervene as grounds for appeal. According to the Supreme Court opinion, Mason had 30 days to file the appeal, and having done so seven days after the judgment was made, filed in a timely manner. The Supreme Court’s opinion instructed the lower court to reverse the lower court’s denial of his appeal.

“I am disappointed that the Supreme Court has chosen to adopt the use of ‘standing’ and ‘case and controversy’ doctrines. These legal requirements have been developed over many years and many cases by federal and state courts as a means of reducing their case loads,” Gray said in a statement. “It was my hope that our court would play a larger initial role in resolving conflicts and defining the authority of the branches of our newly reorganized constitutional government.”

What does this mean for the Osage News?

Since the lower court’s ruling has been reversed, the Independent Press Act has been made into law and establishes an Editorial Board that will be made up of three qualified journalists. The law dictates that the principal chief will appoint a member to the board; the congress appoints one member to the board and the two appointed will select the third. The board will also have the job of appointing an editor for the Osage News.

The Supreme Court’s opinion did not address whether or not ONCA 08-07 was constitutional but said that the Editorial Board or a member of the Osage News staff could seek recourse if they feel the newspaper’s independence is in jeopardy.

“In the future, should such an event occur, the newspaper may have the opportunity to seek recourse,” said the opinion. “Similarly, there could be available recourse to address constitutional defects in the Act should the newspaper’s editorial board or staff find that it impairs or infringes on the newspaper’s independence.”

The Osage Nation Supreme Court is located in the Osage Nation Police Department building. Photo by Shannon Shaw/Osage News

By Benny Polacca
Osage News

The Osage Nation Supreme Court met for the first time in the history of the nation Wednesday to hear arguments over a free press for the Osage people.

The Nation’s high court is deciding the constitutionality of a 2008 bill that was challenged by Principal Chief Jim Gray. He vetoed the 2008 Independent Press Act but Congress overturned Gray’s veto. The chief asked the Nation’s district court to intervene, and it upheld the chief’s position. Speaker Archie Mason, acting on behalf of Congress, appealed the case to the Supreme Court earlier this year.

Loyed Gill, attorney for the Nation’s Congress, told the three justices that Gray “filed a suit against no one” when he sought the lower court’s ruling on the bill after Congress overturned his veto. Gray asked the court to intervene because he believes the bill is unconstitutional because it “attempts to regulate the structure and content of the Osage News and therefore abridges the freedom of the press,” according to his April 2008 veto message.

“When this suit was brought, Chief (Gray) did not mean for it to be a fight between the (executive and legislative) branches,” said O. Joseph Williams, the attorney representing the chief’s office in this case. “The sole purpose was to have the judicial branch interpret the law under tribal constitution.”

Gill and Mason are asking the high court to uphold the Nation’s constitution with regard to legislative powers amid the principal chief’s power to veto legislation. “The courts should not be a forum for appeal of legislation by elected officials simply because the constitutional process did not produce the results they desired,” Gill told the court.

Justice Jeanine Logan asked Gill why Congress wanted to pursue the 2008 free press bill. Gill said the Osage News is a publication under the Executive Branch that Congress believed was “slanted toward (the Executive) branch. This bill would allow free press, allowing all participating government branches” fair coverage, Gill said.

Justice Meredith Drent asked Williams why the newspaper’s Editorial Board (called for in the free press act) did not file the suit instead of Gray. Williams replied that the board was “not structured” when the situation happened.

Logan referred to a section of the bill giving the Editorial Board duties including “to establish and enforce an editorial policy that will be fair and responsible in the reporting of general news, current events and issues of Osage concern…” and asked if the bill would be fine if the language was removed. Gill said the bill would be fine, but Williams said no.

The bill’s section concerning the Editorial Board was brought up because a portion of the lower court’s decision touched on the board’s duties. According to that court’s written decision finding the bill unconstitutional, the bill “establishes a newspaper operated by (the board) whose structure is determined by the Act, and who is duty-bound to report on matters that are pre-determined and regulated by and through the act.”

The lower court decided that the bill would also remain unconstitutional if any portions of it were removed. Williams, of Norman, Okla.-based Pitchlynn and Williams law firm, cited the bill’s section on appointing the three-member Editorial Board, which calls for the Executive Branch to appoint one member, Congress to appoint a second and those two members to appoint the third member.

According to the court documents filed by Pitchlynn and Williams, the Appointment Clause of the Nation’s Constitution “vests the power to appoint executive staff solely with the Principal Chief. By removing the power of the Chief to appoint two board members, Congress intrudes into a function reserved exclusively to the Executive Branch of government.”

Also at issue in the case is whether federal law should be followed if a similar law is not available under tribal law. Williams argued in court papers that the lower court ruling that found in favor of Gray correctly decided the Sept. 11, 2008 case based on interpretation of the Osage Constitution and not the U.S. Constitution.

“When I’m in federal court, I apply those laws. When I’m in tribal court, I apply those laws,” Williams said. Gill countered in court papers saying the Nation’s Judicial Branch has a civil procedure code, which states: “In all civil actions, the court shall apply any laws of the United States that may be applicable…”

Drent asked Williams if he could cite a tribal case decided solely on tribal law and he referred to one case decided in the Chickasaw Nation court system. When asked for more examples by Drent, Williams said he would have to file additional documents to cite other cases.

Gill and Williams addressed the justices on behalf of their clients. Mason and Executive Branch officials did not speak during the hearing.

Chief Justice Charles Lohah thanked the attorneys for “interesting and enlightening arguments. We will issue our opinion in writing,” he said before adjourning the 90-minute court session just before 3 p.m.

It’s unknown when the justices will issue a decision.