The Osage Nation Congress has the authority to set a deadline for the principal chief to make appointments to the Osage Nation health authority board, Si-Si A-Pe-Txa, according to an opinion issued by the ON attorney general.
Principal Chief Geoffrey Standing Bear asked for the opinion after the Congress passed the Health Care Reform Act of 2022, which included a clause that the chief must make appointments to the health board within six months of a vacancy occurring. At issue: If the law violated the Osage Constitution, which is the supreme law of the Nation and contains no such restriction on the appointment power of the chief.
Attorney General Clint Patterson opined that Congress acted within its power by setting a time limit for the chief’s appointment because the power to make appointments is a “blended power,” in which the chief has unilateral authority to make appointments that are subject to confirmation by the Congress. By giving the chief a six-month time limit, the opinion says, Congress has not imposed “any unjustified or unwarranted qualifications or standards which would restrict the Principal Chief’s discretion to substitute its judgement for that of the Principal Chief.”
Standing Bear, however, sees the time limit as a potential slippery slope. “Congress could say appointments have to be made in six minutes or two hours or two days,” he said.
Patterson also notes the Osage Nation Supreme Court already ruled in 2015 that Congress could impose a minimum age requirement for appointees, a “more coercive” standard than a reasonable time limit.
To boot, Patterson noted, the health law doesn’t create any penalty in case a chief does fail to make the deadline – something that could happen for many reasons, including if the Congress fails to confirm an appointee. That recently happened when Standing Bear nominated Natalie Prather, a retired career banker, to serve on the Gaming Enterprise Board. No one on the Congress would second Prather’s nomination, so it died for lack thereof and makes her ineligible for a renewed appointment for six months. That board is currently operating with just three members, the barest quorum since two members resigned early this year.
Had Congress imposed a penalty for non-compliance with the deadline, Patterson wrote, his opinion about its constitutionality of the Si-Si A-Pe-Txa board deadline likely would have been different.
“If Congress was to adopt a provision … through which the Principal Chief’s salary was withheld for non-compliance and additionally imposing civil fines for anyone that continued to pay the Principal Chief while in non-compliance, such language would likely be unconstitutional under the laws of the Osage Nation,” Patterson wrote. “Further, Congress has not sought to usurp the Principal Chief’s appointment power (i.e. if the Chief fails to make a nomination by the date, then Congress makes the nomination); such a provision would be unconstitutional. As no enforcement provision is included, it is difficult to conclude that the provision is inherently coercive.”
Patterson acknowledges that his opinion is somewhat speculative although its impact is narrow since the vacancies deadline applies only to Si-Si A-Pe-Txa, the health board.
“The most apparent practical implication of the Vacancies Provision is that the Principal Chief will be compelled to make an appointment to a vacancy on the Si-Si A-Pe-Txa board within six months of a vacancy arising. Such appointments would have a net positive effect.”
Standing Bear said that the current system of board appointments is somewhat befuddling and needs to be made consistent. The law states that boards shall have at least three members and up to five, and the actual number varies between those two numbers. The Osage LLC Board has long operated with four members, for instance, while others have three members, others have five, and yet others have five but two are inactive and unpaid alternates.
“We need consistency,” Standing Bear said. “It’s confusing and it shouldn’t be.”