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HomeLegalON Supreme Court rules on inaugural declaratory judgment case

ON Supreme Court rules on inaugural declaratory judgment case

The Osage Nation Supreme Court denied a claim for relief sought by the Third ON Congress in the inaugural declaratory judgment case filed against Principal Chief John Red Eagle regarding the board appointment of his older brother, Eddy Red Eagle Jr.

In a May 10 written opinion, the High Court said it lacked jurisdiction to determine whether Chief Red Eagle violated the Nation’s ethics law when he appointed former ON Congressman Eddy Red Eagle Jr. to the Osage Nation Energy Services LLC Board earlier this year. Following a 7-4 vote to file suit on April 2, Congress filed the claim seeking declaratory relief by asking the High Court to declare Chief Red Eagle’s appointment of his brother to the ONES LLC Board unconstitutional.

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 case is the first filed by an ON government branch requesting a declaratory judgment since Congress passed it into law last year.

In its 12-page opinion, the court referred to the Osage ethics law (chapter 6 of the Osage Nation Code) and noted the ON Attorney General is both the recipient of alleged ethical violations for non-Congressional officials and the initiator of any judicial action to evaluate an alleged violation.

“The Attorney General is charged with investigating and identifying the necessary facts to evaluate an alleged ethical violation,” according to the Supreme Court’s opinion. “Under the ethics law, the Supreme Court was not granted the authority to adjudicate violations of ethical standards other than to receive appeals from the Trial Court. The investigative and fact-finding tasks, which are necessary components of ethical inquiries, are outside the scope of the activities of this Court was authorized to perform by the Ethics Law.”  

The court also referred to the April 4 Congressional court complaint asking for judgment in its favor “ordering declaratory relief that Principal Chief Red Eagle’s appointment of his brother, Eddy Red Eagle Jr. is in violation of the ethics provisions, Sections 2 and 3 of Article X contained in the Osage Constitution.”  

The court opined: “Although we find that we possess the authority to resolve the dispute over the constitutional provisions at issue, our authority to grant the relief requested by the Speaker is bound by 15 ONC 6-303 (the ethics law section referring non-Congressional ethical violations to the AG’s office). We must therefore deny the Speaker’s requested relief.”

The court also ruled that the Principal Chief does not supervise ONES LLC board positions.

In its opinion, the Court said: “The Constitution does not characterize the relationship between the Principal Chief and tribal enterprise boards as one of supervisor and subordinate. Although section 14 establishes tribal enterprise boards under the Executive Branch, other than the initial appointment and removal of members, it assigns no other role or duty to the Principal Chief with respect to the operation or management of these boards … In this case, the Constitution created operationally autonomous entities whose board members may only be appointed and removed by the affirmative acts of two branches.”

Also in its analysis, the Court referred to Article 10, section 8 of the Constitution regarding independent boards and commissions, which states: “‘Tribal officials and employees shall refrain from using tribal positions to improperly influence the deliberations, administrations, or decisions of established board or commission proceedings.’ We interpret this language in the case at hand to prohibit the Principal Chief from using his position to improperly influence the operation of ONES Board; the ONES Board’s authority is exclusive, subject to the provisions of Article VII, section 14.”

Both Chief Red Eagle and the Congress provided differing arguments regarding the meaning of Article X, section 3, which requires “All tribal officials and employees of the Osage Nation [to] avoid even the appearance of impropriety in the performance of their duties.”

In its ruling, the Court said: “Because reasonableness requires the identification and consideration of relevant information, the ‘appearance of impropriety’ must be based on knowledge of that relevant information, not speculation about facts unknown or assumptions based on rumors, suspicions or theoretical scenarios … the alleged impropriety must be more than a disagreeable or offensive act. It must be bound to a legal or ethical standard governing the behavior and acts of the official or employee … we find that under Article X, section 3, the ‘appearance of impropriety’ means the appearance of a violation of law or ethics from the perspective of a reasonable person with knowledge of the relevant facts.”

In a written statement, Chief Red Eagle commented on the opinion: “While I have not yet had the opportunity to carefully study the decision, what is clear is that the Supreme Court refused to permit Congress to succeed in manufacturing of a dispute between two branches of government in order to avoid its constitutional responsibility to act upon the nomination of Eddy Red Eagle for the Osage Nation Energy Services, LLC board on the merits of the nomination. The Osage Constitution calls on me to appoint ‘qualified professionals.’ Eddy Red Eagle has substantial experience, 30 years of experience, as a manager in the oil and gas business. Robert Kennedy was far less qualified to be the Attorney General when his President brother (John F. Kennedy) nominated him and the U.S. Senate confirmed him. The Court agreed with me that he would not be an ‘employee’ supervised directly by me, but rather part of a separately functioning professional board.”

Congressional Speaker Raymond Red Corn also issued a written statement on behalf of the Congress: “The (Congress) is pleased with the Supreme Court’s decision to accept jurisdiction of this case under the declaratory judgment law. While the decision on ‘appearance of impropriety’ is not the decision we sought, we respect the opinion of the Court and thank the Justices for their diligent work in shaping this new Osage Nation government. This case presented a difficult issue for the Supreme Court to address, and one that divided the (Congress). The Nation will continue to seek balance between the policy initiative to create more jobs for Osages, and the dangers to objectivity presented by family relationships.”

Sitting on the Supreme Court are Chief Justice Meredith D. Drent and Associate Justice Jeanine Logan. Drent appointed Arkansas attorney Drew Pierce (Osage) as associate judge to fill the third vacant court seat for this case.

According to the Supreme Court, Pierce was appointed as an associate judge in accordance with Article VII, section 8 of the Constitution. He is serving on the Supreme Court by designation until the Principal Chief fills the Associate Justice vacancy.

Despite their disagreements, both branches acknowledged the 2006 Osage Constitution and government continue to mature.

Wrote Chief Red Eagle: “Although our position prevailed, I believe the real victor here are the Osage people. Our Supreme Court is blossoming. It is moving carefully and deliberately and thoughtfully to build Osage law.”

The Congressional statement also said: “The Supreme Court made it clear more work can be done through legislation to clarify the intent and application of the ethics laws pertaining to elected officials. We are encouraged by the Supreme Court’s opinion recognizing the autonomy of our enterprise boards as intended by the Constitution. The Court’s opinion will be given appropriate consideration in the coming months leading up to the Tzi-Zho Session.”

Eddy Red Eagle attended the May 13 ONES LLC Board meeting as a “concerned citizen” and said he would be reappointed in the fall when the Tzi-Zho Session starts.

“According to the Osage Supreme Court ruling just issued, boards are not employees of the Nation and that the Chief has authority to appoint … a brother to the board,” Red Eagle said. “They (Supreme Court) defined clearly what the Executive can do – they can put them on, take’em off.”

His appointment sat in Congress and was not acted on and the Congressional session expired. Since it was not acted on, per the Osage Constitution his appointment was denied with the end of the Hun-Kah Session on April 22.

Red Eagle is also a representative for the Osage County Industrial Authority Board and was just reappointed as the Nation’s representative for the Indian Nations Council of Governments (INCOG).


Benny Polacca

Original Publish Date: 2013-05-16 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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