The Osage News v. Osage Nation Principal Chief John Red Eagle case involving the open records act will return to the tribal courtroom next month for oral arguments.
Osage Nation Trial Court presiding Associate Judge Lee Stout set an Aug. 8 court date to hear arguments after Chief Red Eagle’s attorney filed a motion to dismiss arguing the newspaper is not considered a member of the “public” and has no standing to challenge the denial of its open records requests under the Nation’s open records law without waiving their sovereign immunity.
The Osage News filed a June 18 complaint against the Chief’s office asking the court to compel the Chief to comply with the open records act after the newspaper’s Jan. 31 written request for the contract between pipeline consultant Rod Hartness and the Nation went unanswered. On June 26, Chief Red Eagle’s attorney Kirke Kickingbird filed a written response to the newspaper’s complaint and included a copy of the Hartness contract.
With the contract now public, the newspaper is asking for the Chief’s office to pay its court and attorney fees, but the Chief refused to do so and is asking the court to dismiss the case.
In his most recent filing, Chief Red Eagle, through attorneys Kickingbird and James Burson, asked the court to dismiss the newspaper’s complaint “for lack of subject matter jurisdiction.” In the July 9 filing, the Chief refers to the open records law, which allows for “any member of the public” the right to challenge the denial of a records request in tribal court. The Chief also referred to ONCA 12-23, a passed law amending the open records act, and noted the open records law is now amended “to make clear that open record requests by government employees and government officials are not public requests governed by the Act.”
The newspaper’s attorney, Stephen Lee, responded to the case dismissal request on July 11 arguing the Osage News serves no government function, is “clearly a business entity” and operates under the Nation’s 2008 Independent Press Act as a newspaper “free from ‘any undue influence and free from any particular political interest.’”
In his case dismissal request, the Chief argues the Osage News staff are government employees with its operations funded through annual tribal appropriations and argues those facts prevent the newspaper from being a member of the public and therefore, not eligible to challenge any open record request denials.
“The issue is ‘are they a government entity or are they the public under the act,’ that’s clearly the issue here,” Burson told Stout during a July 11 initial court hearing on the complaint.
According to ONCA 12-23, the open records law was amended to define a “government entity” as “any administrative, advisory, executive, judicial or legislative office or body of the Osage Nation,” including boards, committees, commissions, departments, agencies, independent agencies, and other instrumentalities whose board of directors are appointed or elected by the Osage Nation” – with exceptions to protect the competitive advantage of the Nation’s businesses.
Exceptions to government entities under ONCA 12-23 include: corporations or tribal enterprises; limited liability companies, limited liability partnerships; any other business entity of the Osage Nation.
Lee responded to the Chief’s case dismissal motion arguing the “Osage News is clearly a business entity under the Open Records Act as it serves no government function. This interpretation is further bolstered by the language contained in the Independent Press Act of 2008.”
“The Independent Press Act was enacted in 2008 and created as an independent newspaper for the Osage Nation,” Lee argues. “The (press act) took great care to create a newspaper that was free from ‘any undue influence and free from any particular political interest.’ Although a portion of the (Editorial) Board of the Osage News is appointed by the Executive and Legislative branch, the language in the (press act) was clear that no branch of the government should have influence over the Board members of the Osage News.”
Lee also argues the Chief and his attorneys’ “interpretation of the law regarding this issue would be unconstitutional under both (Article IV – Declaration of Rights) of the Osage Nation Constitution as well as the Federal Indian Civil Rights Act of 1968. Both (the ON) Constitution and the Federal Indian Civil Rights Act of 1968 protect both the individual civil liberties of citizens as well as the civil liberties of institutions such as the press.”
Stout asked attorneys for both sides to submit their argument briefs for the Aug. 8 court date set to hear oral arguments on the Chief’s case dismissal request.
Location
Pawhuska, OK
By
Benny Polacca
Original Publish Date: 2013-07-12 00:00:00