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ON Supreme Court issues opinion in Declaratory Judgement case Geoffrey M. Standing Bear v. Angela Pratt

The Osage Nation Supreme Court issued its opinion in the Declaratory Judgment case Geoffrey M. Standing Bear v. Angela Pratt. The Court has ruled in favor of Principal Chief Geoffrey Standing Bear.

The role of the Executive Branch and the Legislative Branch when it comes to budgeting the Nation’s many programs, departments and divisions, has been a growing and contentious battle since the new government began in 2006. Each year the branches test each other in new and different ways.

Standing Bear filed the Declaratory Judgment petition to the Court on Nov. 28, 2016, following the 2016 Tzi-Zho Session. The petition was similar to the petition he filed in Standing Bear v. Whitehorn (2016) when Standing Bear successfully sued the Fourth Osage Nation Congress in the Supreme Court for constitutional violations. Language from Whitehorn is heavily referenced throughout the Court’s 35-page opinion, which was issued Aug. 11.

The Supreme Court opinion was issued in curiam, meaning multiple judges authored the opinion. The ON Supreme Court is made up of three justices, Chief Justice Meredith Drent, Associate Justice Drew Pierce and Associate Justice Elizabeth Homer. Drent and Pierce authored the opinion.

“Our government is essentially in its infancy. In relative terms, our level of constitutional legal development could be compared to that of the United States federal government in 1799 or 1800. For that reason, a certain amount of uncertainty in its application and enforcement is natural,” according to the opinion. “We are troubled, however, by the fact that the legislative acts at issue here, all but one of which were enacted after our decision in Standing Bear v. Whitehorn, appear to either challenge the validity of the Court’s rulings in that case or disregard them altogether. Constitutional governments are only as effective as the people elected to serve in them. Every member of each branch of government must carry out his or her duties in accordance with the plain meaning of the Constitution. Anything less is a disservice to the People.”

Just as in Whitehorn, the Court put emphasis on the fact they were not going to consider standards created by the federal or state government and would be developing “a uniquely Osage jurisprudence.” The Court rejected the Congress’ invitation to set the standard of review at “beyond a reasonable doubt” and said, “unless the State of Oklahoma has adopted laws on how to interpret the Osage Nation Constitution,” there was no state law to apply.

“Finally, this Court opts to champion Osage autonomy rather than cede the Nation’s power to interpret its own laws to another government … The complexity and depth of the Osage Nation’s history should be considered first before resorting to foreign law,” according to the opinion.

Standing Bear said he would be issuing a series of statements on the ruling but his first statement would be this: “I have only asked for this Congress to respect Osage constitutional sovereignty. If this Congress had worked with me we would be much further ahead.”

The Osage News reached out to Congressional Speaker Angela Pratt for comment and she said the Fifth Osage Nation Congress would be issuing a statement.

Count One

Count one of the petition asks whether five appropriation bills violate Article V, Article VI, Article VII of the Osage Constitution and Standing Bear v. Whitehorn.

Subsection A of count one asks whether Congress has the constitutional power to freeze Executive Branch employee salaries? The Court said no.

Subsection B of count one asks whether it is constitutional for a Congress member to combine more than one subject within a proposed piece of legislation? The Court said no.

Subsection C of count one asks if it was within the Congress’ constitutional powers to create a new position within the Executive Branch? Which they attempted by creating a “Paralegal” within the Attorney General’s office, according to the opinion. The Court said no.

Subsection D of count one asks whether it was in the Congress’ constitutional powers to prohibit the Executive Branch from creating positions within the Education Division, beyond those authorized by the Congress. The Court said no and the Congress cannot interfere with the Executive Branch’s hiring decisions, according to the opinion.

Count Two

Count two addresses the Budget Parameter and Limitation Act (BPLA), ONCA 13-67 (Supernaw). The Court found sections 2, subsections 3(A)-(E) and sections 4 and 5 of the BPLA unconstitutional and void.

Subsection A of count two asks specifically whether it is constitutional to require Congressional approval of policies and procedures within the Human Resources Department? The Court said no.

Subsection B of count two, still pertaining to the BPLA, asks whether it is constitutional to prohibit line item shifting and impose salary restrictions? The Court said it is constitutional for Congress to prohibit line item shifting “but with some qualifications,” but the restriction of new positions without Congressional approval is not constitutional, according to the opinion.

Subsection C of count two, still pertaining to the BPLA, asks whether the law’s prohibition on line item shifting into a line item not continued within an appropriation bill at the time of its enactment is constitutionally permissible? The Court said no.

Subsection D of count two, still pertaining to the BPLA, asks whether the law’s section 5 requirement that approved budgets shall be organized by divisions is constitutionally permissible? The Court said no.

Subsection D of count two asks whether “the restriction on the introduction of general appropriation legislation set forth in section 6 and 8 of the BPLA is contingent upon Congressional approval of a motion to adopt an Annual Projected Revenue Report for the same fiscal year?” The Court said no. However, the Court did hold that Section 6 and 8 of the BPLA was a proper exercise of Congress’ appropriation power and held that Congress could require the annual revenue projection to be passed first.

The second question in count two addressed “whether a severability provision may be implied in relation to Congressional legislation to preserve a legislative enactment notwithstanding the enactment’s inclusion of one or more unconstitutional provisions?” The Court said the issue was moot. “The BPLA contains a severability clause. Whether a severability provision may be applied to some future legislation is not properly before the Court.”

The third question asked under count two, for the purposes of the Declaratory Judgment Act, was whether an issue may be presented to the Court about legislation that had been signed by the Principal Chief? The Court said yes because even though the Principal Chief has signed a bill into law it “does not automatically cure any unconstitutional provisions within the particular act.”

Count Three

Count three pertained to the repealed ONCA 16-100 (Edwards), which Standing Bear claimed had about 20 unconstitutional provisions that violated Article V, separation of powers. After committee meetings were held where Osage employees voiced their dislike and concerns for the legislation, the Congress repealed it. Since the law has been repealed the issue is moot, according to the opinion.

Count Four

Count four pertains to the constitutionality of ONCA 14-47 (Edwards), as amended by ONCA 14-57 (Whitehorn), ONCA 15-27 (Edwards) and ONCA 16-65 (Shaw), which are all acts to create divisions within the Executive Branch and whether they violate Article VII, Section 3 of the Constitution, which addresses qualifications and separation of powers. The Court found the legislation unconstitutional and void.

Subsection A of count four asks whether it is constitutional for Congress to organize divisions for the Executive Branch beyond those set forth in Article VII of the Constitution? The Court said no.

Subsection B of count four asks whether the Congress can require the Executive Branch “entry” to be assigned to certain divisions? The Court said no.

Subsection C of count four asks whether “preventing line item shifting by prohibiting the Executive Branch from paying salaries, benefits and travel expenses for a division employee except to those employees originating within that division is a constitutionally permissible exercise of Congress?” The court said no.

Subsection D of count four asks whether the prohibition of hiring for a position within an Executive Branch division until Congress decides to fund the position to the division “for compensation” is a constitutionally permissible exercise of the Congress legislative authority? The Court said no.

Constitutional amendment

In the March 20 special election, Congresswoman Maria Whitehorn successfully got her question on the ballot that asked voters to approve an amendment to Article VI, section 24 of the Constitution. The amendment passed and it stated: “The annual budget of the Osage Nation shall be governed by the principals of transparency and accountability, and the budgetary process encompassing those principals shall be set forth in Osage law.”

The Congress argued that since the amendment passed it would require the Executive Branch to provide “department and/or job specific payroll information for purposes of Congress appropriating a budget,” according to the opinion. The Court said no. The Court said the amendment was merely “aspirational” because it “does not change existing law or bear on the separation of powers questions at issue in this action.”

 

Correction: The Osage Nation Supreme Court opinion in Geoffrey M. Standing Bear v. Angela Pratt was authored by Chief Justice Meredith Drent and Associate Justice Drew Pierce. It was incorrectly stated that Drent wrote the opinion. The Osage News regrets the error. 


By

Shannon Shaw Duty


Original Publish Date: 2017-08-14 00:00:00

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Shannon Shaw Dutyhttps://osagenews.org
Shannon Shaw Duty is the editor of the Osage News. She is a graduate of the University of Oklahoma with a bachelor's degree in Journalism and a master's degree in Legal Studies, Indigenous Peoples Law from the OU College of Law. She served on the Board of Directors for the Native American Journalists Association (NAJA) from 2013-2016 and served as a board member and Chairwoman for the Pawhuska Johnson O’Malley Parent Committee from 2017-2020. She is a Chips Quinn Scholar, a former instructor for the Freedom Forum’s Native American Journalism Career Conference and the Freedom Forum’s American Indian Journalism Institute. She is a former reporter for The Santa Fe New Mexican. She is a 2012 recipient of the Native American 40 Under 40 from the National Center for American Indian Enterprise Development (NCAIED). In 2014 she helped lead the Osage News to receive the Elias Boudinot Free Press Award, NAJA’s highest honor. An Osage tribal member, she and her family are from the Grayhorse District. She currently resides in Pawhuska, Okla., with her husband and six children.
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