By
Benny Polacca
A controversial Osage Nation Congressional resolution asking voters whether the tribal judge appointment process should change in the Osage Constitution failed with a majority of Fifth ON Congress members voting “no” on April 9.
ONCR 17-44 (sponsored by Congressman James Norris) failed with nine “no” votes and two “yes” votes after two Congressional committee meetings discussed the pros and cons of different avenues tribes use to name judges to their respective court benches. The resolution also prompted chatter among the Osage public on social media over concerns voters would not have an opportunity to choose whether to retain the four Judicial Branch judges if the resolution passed and amended the Constitution.
Voting “yes” for the resolution that day were Congress members Norris and Archie Mason. “No” votes came from the remaining nine Congress members.
According to ONCR 17-44, the resolution, if passed, would’ve put a question to Osage voters whether Article VIII (Judiciary), Section 7 of the 2006 Osage Constitution should be amended “to require Justices of the (ON) Supreme Court and the Chief Judge of the Trial Court be appointed every six years by the Principal Chief and confirmed by the Osage Nation Congress.”
In 2006, Osage voters approved the current constitution, which states the Principal Chief shall appoint the Supreme Court Justices and Trial Court Chief Judge and the Congress shall also confirm those appointees to serve one four-year term. Once that term ends, those four judges “will stand for retention by a vote of the qualified Osage electors and at the expiration of each four-year term thereafter.”
The voting down of ONCR 17-44 also comes after several Osages, including those in recently-founded grassroots group Osage Impact raised concerns and questions on the potential outcomes if the retention vote mandate is removed from the constitution. Osage Impact started an online petition asking the Congress to vote down ONCR 17-44 and delivered a printed copy of the petition with over 220 electronic signatures shortly before the 10 a.m. session started.
In prepared remarks, Norris addressed the resolution before the vote. “What this is primarily intended to do is to give the Osage people an opportunity to make a decision again in regard to how to appoint or how to select or how to retain members of the judiciary. The extent to which judges are able to interpret and apply law partially depends upon their ability to remain free from undue political pressure. Legislators play a vital role in ensuring high quality courts that inspire public trust and confidence. We as legislators can propose changes or propose reforms to improve this process. The people express greater confidence in the judicial system when they believe the process is fair and transparent. There are a variety of methods used to select judges to serve on courts, but for the purpose of this resolution, I’m proposing the people be given a chance to consider appointment confirmation over retention. So why change from retention to appointment confirmation? Retention elections are intended to de-politicize. Judicial elections, while giving voters the right to choose, to either retain or not retain. However, it is believed by many in the legal community that retention elections attract little voter interest since elections without competition rarely excite or draw the interest of voters.”
Congresswoman Shannon Edwards voted “no” for ONCR 17-44, arguing she believed six-year terms were too long for judges to serve. Edwards also serves as a part-time judge for the federal Southern Plains Region court for Indian offenses, which she said is an appointed four-year position. “It is very difficult for a judge to commit beyond four years, I currently serve on a committee where I serve three years and it’s been a very big commitment to do that,” Edwards said. During the legislative process, Edwards proposed an amendment to reduce the resolution’s six-year term to four years, but the vote failed to receive majority “yes” votes.
Norris said all prior Osage constitutions (1861, 1881, 1994) had some form of Osage judicial election process and said it is believed by some “that judicial elections undermine the independence of the courts and encourage judges to act as politicians, judges are not politicians.”
ON Supreme Court Chief Justice Meredith Drent echoed similar concerns regarding elected judges during two prior Congressional committee meetings as did members of Osage Impact, which wrote an open letter to the Congress stating: “The judiciary must always remain impartial, independent and follow the rule of law. If the Legislative Branch feels judicial selection reform is needed, it must be approached in a more thoughtful and careful manner.”
The Congress will next meet for Day 18 of the Hun-Kah Session Monday, April 16, at 10 a.m. in the Capitol Building.
Original Publish Date: 2018-04-13 00:00:00
