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HomeLegalChief Red Eagle’s motion to dismiss Osage News lawsuit denied

Chief Red Eagle’s motion to dismiss Osage News lawsuit denied

The Osage News lawsuit filed against Osage Nation Principal Chief John Red Eagle regarding the open records act will proceed after a Trial Court judge denied a motion to dismiss filed by the Chief’s attorneys.

On Aug. 14, Presiding Associate Judge Lee Stout ruled the Osage News is a “business entity” and may seek record requests from the Nation’s government under its open records act thereby dismissing the Chief’s argument that the newspaper is a government entity and should not be defined as a member of the “public” under the law to seek records or damage relief if those requests are not fulfilled.

In his ruling, Stout said: “It is the opinion of this court that I believe that the Osage News does meet the definition of a business entity of the Osage Nation, therefore is a ‘person’ as defined by the open records act and therefore capable of making open records act requests.”

Stout said his ruling does not mean the case is over, but for the purposes of deciding on the Chief’s request to dismiss the case. The court will now consider the newspaper’s original filing regarding the open records act, which asked the court to compel the Chief to release a copy of the contract with pipeline consultant Rod Hartness to the newspaper, to pay a civil penalty for allegedly breaking the tribe’s open records law and to pay the newspaper’s attorney’s fees.

The newspaper filed the suit June 18 after a Jan. 31 written open records request to the Chief’s office asking for a copy of a consultant’s contract went unanswered.

On June 26, Chief Red Eagle’s attorney Kirke Kickingbird filed a written response to the newspaper’s complaint and included a copy of the Hartness contract. With the contract now public, the newspaper is asking for the Chief’s office to pay its court and attorney fees, but the Chief refused to do so and asked the court to dismiss the case.

Chief Red Eagle, through attorneys Kickingbird and James Burson, asked the court to dismiss the newspaper’s complaint “for lack of subject matter jurisdiction.” In the July 9 filing, the Chief refers to the open records law, which allows for “any member of the public” the right to challenge the denial of a records request in tribal court. The Chief also referred to ONCA 12-23, a passed law amending the open records act, and noted the open records law is now amended “to make clear that open record requests by government employees and government officials are not public requests governed by the Act.”

The newspaper’s attorney, Stephen Lee, responded to the case dismissal request arguing the Osage Newsserves no government function, is “clearly a business entity” and operates under the Nation’s 2008 Independent Press Act as a newspaper “free from ‘any undue influence and free from any particular political interest.’”

The Chief argues the Osage News staff are government employees with its operations funded through annual tribal appropriations and argues those facts prevent the newspaper from being a member of the “public” and therefore, not eligible to challenge any open record request denials, according to his request to dismiss the case.

Lee also responded to the dismissal stating: “The business of the Osage News is information and if they do not have access to information under the Act then they would be at a severe competitive disadvantage … The Osage News is not asking for unfettered access to government documents or permission to travel to countries that the U.S. will not issue visas to, they (newspaper staff) simply ask for the same rights as other citizens. Under the (Chief’s) interpretation of the law, the Osage Newswould have less access to information than any ordinary citizen.”

With a ruling made on the motion to dismiss the case, the next court date has yet to be set. The Chief’s office also has an opportunity to appeal the decision.

According to the Trial Court’s rules, civil appeals may be commenced by filing a petition in error within 30 days of the date of judgment. Check back to for updates on the case when they are available.


Benny Polacca

Original Publish Date: 2013-08-15 00:00:00


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Benny Polacca
Benny Polacca started at the Osage News in 2009 as a reporter and has covered various stories and events impacting the Osage Nation and Osage people. Polacca is part of the News team awarded the Native American Journalist Association’s Elias Boudinot Free Press Award in 2014 and other NAJA Media Awards and SPJ Oklahoma Pro Chapter awards for news coverage and photography. Polacca is an Arizona State University graduate and participated in the former American Indian Journalism Institute at the University of South Dakota. He previously worked at The Forum newspaper covering the Fargo, N.D. region as the weeknight reporter.

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