The Third Osage Nation Congress is asking the Osage Nation Supreme Court to declare Principal Chief John Red Eagle’s appointment of his brother Eddy Red Eagle Jr. to the Osage Nation Energy Services LLC Board unconstitutional, according to tribal court documents.
Chief Red Eagle appointed his older brother, a former ON Congressman, to the ONES LLC board, in January. The appointment is subject to Congressional confirmation during the ongoing 2013 Hun-Kah Session.
At issue is whether the Red Eagle familial relationship is a conflict of interest if Eddy Red Eagle is allowed to serve on the board. The Congress initially considered Eddy Red Eagle’s appointment on March 28, but tabled the confirmation vote pending further legal research on the question of whether the appointment violates the Nation’s Constitution and ethics law, which has a section on nepotism.
On April 2, the Congress voted 7-4 to file suit in the ON Supreme Court seeking a declaratory judgment ruling on the constitutionality of Red Eagle’s appointment. Voting “yes” were Congress members John Free, John Jech, John Maker, William “Kugee” Supernaw, Maria Whitehorn, Daniel Boone and Shannon Edwards. Voting “no” were Alice Buffalohead, Geoffrey Standing Bear, RJ Walker and Raymond Red Corn. Congressman Archie Mason was absent for the vote.
The case is the first filed by an ON government branch requesting a declaratory judgment since Congress passed it into law last year. If the case is considered, a ruling could set precedent on future appointments to ON boards and commissions.
The declaratory judgment law (ONCA 12-103, Edwards) 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.
According to the Congressional court complaint filed April 4, Congressional Speaker Raymond Red Corn, acting on behalf of the ON Congress, “asserts that the Principal Chief’s appointment of his brother, Eddy Red Eagle Jr., to the ONES, LLC Board is in violation of Article X, Section 3, which states ‘All tribal officials and employees of the Osage Nation shall avoid even the appearance of impropriety in the performance of their duties.’ By appointing his brother to a board position, Principal Chief Red Eagle is giving the appearance of impropriety in performing his duty to appoint persons to the boards of the Osage Nation.”
In the court complaint and brief in support, Congressional legal counsel Loyed “Trey” Gill writes: “The Osage People, through adoption of the Constitution, set the ethics standard for elected officials at a high level, and did so intentionally to avoid abuses of the past … In the circumstances before us, the Principal Chief has appointed his brother to a Tribal Enterprise Board where compensation is paid for the position and the position is one of prestige within the Osage Nation. If these facts do not rise to the level of giving the appearance of impropriety in the performance of Chief Red Eagle’s duties, it is difficult to imagine where that bar will be set.”
The complaint also notes Article VI, Section 22 of the Constitution charges the ON Congress “with establishing laws that define and limit nepotism, and the Congress passed 15 ONC 6-101 et seq. cited as the Osage Nation Ethics Law.”
According to the ethics law section 6-207 titled “anti-nepotism”: “No Osage Nation official or employee shall directly appoint to any employment position with the Osage Nation or directly supervise any person or persons related by consanguinity or affinity within the second degree of said Osage Nation official or public employee.”
The Osage News asked Chief Red Eagle’s office for comment on the April 4 complaint, but none was received by the time this story was published. According to the ON tribal court, no response to the complaint has been filed from the Chief’s office as of April 12.
The ONES LLC is an entity established under the Nation’s limited liability companies act and is charged with investigating and implementing energy-related projects within Osage County with created revenue and job opportunities to benefit the Osage Nation, according to the Nation’s Web site. The Congress authorized its formation after passing two resolutions establishing the ONES LLC articles of operation and organization with a five-member board overseeing its operations.
Chief Red Eagle appointed Jill Jones, Charles Hessert and Randy Standridge to the ONES LLC board in December and former ON Congressmen Mark Simms and Eddy Red Eagle Jr. in January. The first four ONES LLC board members were confirmed by Congressional votes during the Hun-Kah Session following interviews with the Congress. The Congress interviewed Eddy Red Eagle Jr. March 28 but tabled the confirmation after discussion.
Eddy Red Eagle served on the first and second bodies of the ON Congress and did not seek re-election last year. He has 30 years of experience working in the oil and gas field.
The Congress did not dispute or question whether Red Eagle is professionally qualified for the board, but several members said the decision would be a tough one with the Constitution and ethics questions at issue.
Congresswoman Shannon Edwards said the confirmation issue “is a precedent that has come before Congress.” She later motioned for the Congress to seek the declaratory judgment from the Supreme Court. “This is a good issue to take to the Supreme Court to ask them. I hate making Mr. Red Eagle the guinea pig on this but the question needs to be answered.”
Congressman Supernaw said the chief put Congress in a difficult situation. Supernaw said the issue was also tough, citing his longtime friendship and Congressional service with Eddy Red Eagle Jr.
“The ethics law is pretty clear on the appointment of relatives in positions of money. It creates illusions of impropriety,” said Supernaw, “I’ve gotten a lot of emails from people who feel like this would be wrong.”
Congresswoman Alice Buffalohead said she would support Red Eagle’s confirmation citing her past experience alongside him on the Second ON Congress. Citing prior human resources professional experience, Buffalohead said, “There are always differences of opinion when reading policies and procedures and rules. I know his (Eddy Red Eagle Jr.) work ethic very well … When Chief’s office has done something wrong, he held his brother accountable.”
Congresswoman Maria Whitehorn referred to the 2006 Constitution’s formation, noting the “will of the people said they wanted us to address nepotism and ethics.”
Congressman RJ Walker worked with Eddy Red Eagle Jr. on the Osage County Industrial Authority Board. He said he observed Red Eagle Jr.’s “criticalness” and “I’m a little disappointed we didn’t have (legal) opinion beforehand.”
Congress unanimously voted to table the confirmation that day. Eddy Red Eagle Jr., who was present that day, said he understood the delay after the vote adding, “Anything that makes our government stronger.”
The Congress is under a time crunch to consider the confirmation and requested the Supreme Court “to expedite its ruling on this Complaint in order to receive the ruling prior to the end of the Hun-Kah Session and to achieve this goal, (the Congress) is not requesting oral argument.”
Eddy Red Eagle Jr.’s ONES LLC board appointment expires with the Hun-Kah Session unless the Congress confirms him before session ends. The final day of session is April 22, but it may be extended up to three days with majority Congressional approval.