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HomeLegalON Supreme Court hears oral arguments in Standing Bear v. Whitehorn case

ON Supreme Court hears oral arguments in Standing Bear v. Whitehorn case

Attorneys for the Osage Nation legislative and executive branches presented their arguments to the Nation’s Supreme Court on Jan. 29 in the declaratory judgment case Standing Bear v. Whitehorn.

Supreme Court Associate Justices Elizabeth Lohah Homer, Drew Pierce and Chief Justice Meredith Drent heard oral arguments from the respective branches’ attorneys in the case Principal Chief Geoffrey Standing Bear filed against the Fourth ON Congress in November 2015 for alleged Constitutional violations.

Standing Bear’s lawsuit alleges four counts of Constitutional violations that include Separation of Powers, the composition and duties of the Executive Branch and the composition and duties of the Legislature. Standing Bear also cited several Congressional Acts passed, which he considered unconstitutional in his petition.

Attorneys Dean Luthey and Terry Mason Moore (Osage), representing the Executive Branch, said the Nation moved to a new point in political history with the 2006 Constitution.

“This Nation and its people have moved beyond the Tribal Council in a unitary approach to government in favor of a clearly delineated, checks and balances-driven, tripartite system of government,” said Luthey, who asked the court to consider what is really meant by “Supreme executive power of the Osage Nation,” which is vested in the Principal Chief, according to the Constitution.

Quoting the Constitution, Luthey said: “The Principal Chief shall dutifully support the Constitution and laws of the (Nation) and shall see that the laws are faithfully executed, administered and enforced … that’s where the friction is today.”

The lawsuit targets several legislative bills passed by the Congress, which Standing Bear vetoed and were then overridden by Congressional vote. Luthey referenced the six ON budget appropriation bills for the Nation’s six government divisions for the 2016 fiscal year as an example. Standing Bear objected to the bills because he deemed language prohibiting employee salary increases as a wage freeze from one branch of government to the employees of a separate branch as unconstitutional, according to his executive veto messages on the bills.

Luthey referenced the Separation of Powers section of the Constitution and asked if one can imagine being in charge of a government branch but being prohibited from duties including adjusting employee compensation as the need arises. “You can’t do that under what happens here,” he said of the six bills prohibiting the salary increases. He also argues the Congressional appropriation power is set out in the Constitution and said “it doesn’t say they can tell the Executive Branch how to go about specifically spending.”   

Also at issue is a bill (ONCA 15-100) that amends the Nation’s merit-based pay for performance act with adding job descriptions for employees in the Nation’s Human Resources Department. Standing Bear vetoed the bill arguing it violates separation of powers.

Luthey acknowledged the Constitution includes a mandate for a merit-based employment system, but argued the section does not state the Congress could write job descriptions for the HR employees. “If we’re going to go down the ‘who does what?’ road, where do you stop? You can’t stop once you take the first step,” he said.

Standing Bear objected to another bill (ONCA 15-91) passed in the 2015 Tzi-Zho Session that amends Osage gaming law to make the annual gaming plan of operations a “legally binding” document. In his veto message of ONCA 15-91, Standing Bear said: “For the Congress to try and control the activities of the casinos by restricting the business direction of the Gaming (Enterprise) Board would be clear interference of operational autonomy of the gaming operations.”

“Where is the legal constitutional authority to make it legally binding now?” Luthey asked the court. He also questioned what if the revenue and expenditures are different than originally projected.

Loyed “Trey” Gill, Congressional legal counsel, argued Standing Bear failed to show violations of the Constitution and started to reference the constitutional principles system, but Drent interjected asking if Gill wanted the court to impose outside value systems and other jurisdictions onto the court’s business.

“You’re certainly not obligated to impose” the systems, said Gill who added the Nation follows a three-branch government system, similar to the U.S. government.

Pierce asked Gill if the Nation is “a unique community” that is not entirely comparable to federal or state governments. Gill said “we certainly recognize the unique circumstances of the Osage Nation, but without any legal precedents at this point, we are left to look to other jurisdictions.”

Drent asked Gill what “historical precedents, what actions, what qualities have we inherited from all generations of our government before us and how can that inform us on how we move forward? We would much rather examine how we operated as a Nation back in the day without a federal government telling us how to run our businesses … What historical Osage information and facts can you offer to us to give us information we need to decide this incredibly complex issue?”

Gill said he could not provide an example after Drent asked for one.

Homer and Drent quizzed Gill on the six government division bills, which had the language prohibiting the employee raises despite keeping the money in the budgets at the time. Gill said the Congress did request budget information from the Treasurer’s office to cut the money for the raises out of the six budgets, but the Congress did not receive the information until after the Tzi-Zho Session ended in early October, which is why the language prohibiting the raises remained in the six bills.  

Ultimately, the money for the salary raises was stricken from the six budgets during the ninth special session of Congress in December 2015.

Homer asked is “a wage freeze rationally related to the subject of appropriation, is that not a different subject altogether?” Gill said he argues they are not different because salaries/ wages is a line item in a budget appropriation bill for the Nation that is approved by the Congress, which has the sole authority to enact the annual operations budget for the Nation per the Constitution.

Homer said one of the questions in the case is whether the Congress’s revisions (to the laws at issue) “are working to micromanage the Executive Branch … Where is the line?”

On the subject of the HR bill ONCA 15-100, Homer restated the question of “where is the line?” regarding the HR staff position descriptions written into the law. Gill countered the language regarding the HR positions was written into the original Workforce Pay for Performance Act (ONCA 10-85), which was passed in 2010. Gill also stated the Constitution calls for a merit-based employment system to be in place and the Congress is charged with establishing the system.

On the gaming plan of operation issue, Gill said the Congress feels the plan of operations was already a “legally binding” document, so the words were put into law because “it’s a point of clarification.” Homer then asked Gill what purpose does the plan of operations serve. Gill responded the plan provides an opportunity for the owner of the Gaming Enterprise to approve or reject an overall strategy for the gaming business operations.

“Ultimately we are the owners of the Gaming Enterprise – the Chief’s office, the Osage Congress,” said Gill, which prompted an interjection from Drent.

“There are actually three branches of government and all three branches are stewards of the Nation and stewards of the Nation’s resources,” Drent said. “I want to make it very clear when we talk about ownership … it is the Osage people that own that enterprise.”

Gill responded: “I agree, I misspoke.”

A decision in this case was not announced when the March 2016 issue of the Osage News went to print.


Benny Polacca

Original Publish Date: 2016-03-04 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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