The Osage Nation Supreme Court heard oral arguments from attorneys representing the five Osage Minerals Council members and the Osage Nation on June 7 in Pawhuska.
The Osage Nation brought suit against five members of the Osage Minerals Council for failing to turn in signed affidavits of gifts received in 2015. The Osage Nation’s Ethics Act requires elected officials to turn in the affidavits.
Council members Cynthia Boone, Chairman Everett Waller, Kathryn Red Corn, Joseph Cheshewalla and Stephanie Erwin refused to turn in the affidavits and were found guilty of violating the Ethics Act by the ON Trial Court on July 30, 2015. Their attorney, David McCullough of Norman-based Doerner, Saunders, Daniel & Anderson, L.L.P., appealed to the Supreme Court seeking a declaratory judgement on Aug. 19, 2015.
McCullough said the case should have been dismissed by the Trial Court. He said the ethics act does not apply to the minerals council because they are not a governing body as defined by the ethics act. He said the ethics act violates the 1906 Osage Allotment Act and when the ethics act is asserted against the minerals council it also violates the Osage Constitution.
He said Article 15 of the Constitution, that sets up the minerals council as an independent agency within the Osage Nation, does not say the council has to adhere to the Nation’s laws. He said the OMC members are elected by Osage shareholders and not tribal members like the Congress or Chiefs, so they are not “elected officials” as defined in the ethics act.
“I don’t read that [Article 15 in the Constitution] as saying that the Congress has the ability to enact laws to enforce against the council,” he said.
He spoke about the referendum vote that enacted the Constitution in 2006 and what the founders of the Constitution intended when referring to the minerals council.
Supreme Court Justice Elizabeth Lohah Homer asked him questions about the roles of governmental bodies, their functions and if the minerals council performed those. McCullough and Homer went back and forth on the meanings of independent agency and the wording in the Constitution and ethics act.
Supreme Court Chief Justice Meredith Drent said she felt they were arguing semantics, definitions and commas.
“So this argument about the Osage Minerals Council and how it came to be in the Constitution, I’m not interested in hearing that. What I am interested in hearing is this position that somehow the minerals council is outside the scope of what Congress was intending to do with the Ethics Code,” Drent said. “And I’m also not hearing … references to Article 10, the Code of Ethics, within the Constitution itself.”
McCullough said, “I believe I have answered in that the minerals council within the Constitution, within Article 15, is recognized as an independent agency and I believe the Constitution says its independent and outside the laws of the Congress.”
Drent said the minerals council was not outside the Constitution. She said Article 10, Code of Ethics, talks about elected or appointed tribal officials of the Nation. She said she was interested in specific language he could point to in the 1906 Act and its 27 amendments that specifically says the minerals council does not have to adhere to the Osage Nation or its Constitution.
“We have consistently been subject to individuals who did not take the interests of our shareholders seriously, to ignore that fact would be to ignore our history, it is well documented,” Drent said. “People who thought it was better to be wined and dined by [oil] producers than to get the maximum benefit of our mineral estate. So if your answers have anything to do with, ‘well, they can just govern themselves,’ that is not good enough.”
McCullough said he agreed the Constitution was set up to protect the mineral estate and shareholders, but regardless of history, the shareholders are afraid the non-shareholders will take their trust shares, or headrights, away. “The issue before the court, does the Congress have the ability to insert laws that affect the minerals council?”
Representing the Osage Nation was Assistant Attorney General Jeff Jones.
“I think the crux of the matter is defining independent agency. The Osage Minerals Council is recognized by the Osage Nation government as an independent agency, that’s the two words I’ve been struggling with ever since I’ve been here. Following that is ‘within the Osage Nation.’ So whatever it is, it’s still within the Osage Nation,” Jones said. “Which tells me it has to follow Osage Nation law, and that law is passed by Congress.”
He said he wasn’t saying the Congress was over the minerals council but that’s where it starts because they are responsible for all laws governing natural resources according to the Constitution.
“I believe the appellant would have you believe it’s the old tribal council, but it’s not,” he said. He said he doesn’t believe that making the minerals council follow the ethics law is diminishing the council or the minerals estate in any way.
Homer asked if a member from the minerals council were to be removed by the Congress, would it affect the property value of the interest the shareholders receive? Jones said no. She asked if the council members had to swear an oath to uphold the Constitution? He said yes.
Jones said by applying the ethics code to the minerals council the Congress was doing its Constitutional duty in protecting the minerals council, because it protects against corruption and ensures OMC officials are held accountable to their shareholders.
Supreme Court Justice Drew Pierce asked, “How could the Nation carry out its duties without imposing some ethical requirements on members of the minerals council?”
Drent said, “Independent does not mean ungoverned.”
McCullough maintained the referendum vote in 2006 was not meant to put the minerals council under the Nation’s laws.
“I was listening and beginning to have a reaction to your use of pronouns. ‘Ours,’ ‘Theirs.’ The purpose of the  Reaffirmation Act, the intention was to unite the Osage Nation and your argument that somehow the minerals council has some other kind of untouchable status because it is the minerals council, is not consistent with the ideal of unifying the Osage government into a single functioning government,” Homer said.
She said in the early 1990s when the Osages tried to establish a Constitutional government and the Osage National Council was formed, the division between the minerals council and the governing body split the Nation apart. The National Council was abolished and the government went back to the Osage Tribal Council. She said it took more than a decade for the tribe to come back together again and form the Osage Nation.
“I have a hard time with the idea that the minerals council is in Never Never Land. Because the whole point of the Osage government was to have a system where all parts hold each other together and we’re unified in upholding our government, upholding our culture … all of those kinds of things. And when you set up a system where you accept an argument that this entity is so far outside of the Osage Nation that the Osage Nation cannot even impose the most basic ethical constraints,” she said. “I really have a hard time with this idea that the potential for an Osage Nation entity to go rogue, for people to take bribes and what have you, and engage in other corruptions that there would be nothing the Osage Nation could do about it.”
Check back with the Osage News when the Supreme Court makes its ruling. A recording of the oral arguments can be found on the Nation’s website at: https://www.osagenation-nsn.gov/who-we-are/judicial-branch/supreme-court
Shannon Shaw Duty
Original Publish Date: 2016-08-04 00:00:00