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Osage Supreme Court hears inaugural case on 2008 Free Press Act

The Osage Nation Supreme Court met for the first time in the history of the nation Wednesday to hear arguments over a free press for the Osage people.

The Nation’s high court is deciding the constitutionality of a 2008 bill that was challenged by Principal Chief Jim Gray. He vetoed the 2008 Independent Press Act but Congress overturned Gray’s veto. The chief asked the Nation’s district court to intervene, and it upheld the chief’s position. Speaker Archie Mason, acting on behalf of Congress, appealed the case to the Supreme Court earlier this year.

Loyed Gill, attorney for the Nation’s Congress, told the three justices that Gray “filed a suit against no one” when he sought the lower court’s ruling on the bill after Congress overturned his veto. Gray asked the court to intervene because he believes the bill is unconstitutional because it “attempts to regulate the structure and content of the Osage News and therefore abridges the freedom of the press,” according to his April 2008 veto message.

“When this suit was brought, Chief (Gray) did not mean for it to be a fight between the (executive and legislative) branches,” said O. Joseph Williams, the attorney representing the chief’s office in this case. “The sole purpose was to have the judicial branch interpret the law under tribal constitution.”

Gill and Mason are asking the high court to uphold the Nation’s constitution with regard to legislative powers amid the principal chief’s power to veto legislation. “The courts should not be a forum for appeal of legislation by elected officials simply because the constitutional process did not produce the results they desired,” Gill told the court.

Justice Jeanine Logan asked Gill why Congress wanted to pursue the 2008 free press bill. Gill said the Osage News is a publication under the Executive Branch that Congress believed was “slanted toward (the Executive) branch. This bill would allow free press, allowing all participating government branches” fair coverage, Gill said.

Justice Meredith Drent asked Williams why the newspaper’s Editorial Board (called for in the free press act) did not file the suit instead of Gray. Williams replied that the board was “not structured” when the situation happened.

Logan referred to a section of the bill giving the Editorial Board duties including “to establish and enforce an editorial policy that will be fair and responsible in the reporting of general news, current events and issues of Osage concern…” and asked if the bill would be fine if the language was removed. Gill said the bill would be fine, but Williams said no.

The bill’s section concerning the Editorial Board was brought up because a portion of the lower court’s decision touched on the board’s duties. According to that court’s written decision finding the bill unconstitutional, the bill “establishes a newspaper operated by (the board) whose structure is determined by the Act, and who is duty-bound to report on matters that are pre-determined and regulated by and through the act.”

The lower court decided that the bill would also remain unconstitutional if any portions of it were removed. Williams, of Norman, Okla.-based Pitchlynn and Williams law firm, cited the bill’s section on appointing the three-member Editorial Board, which calls for the Executive Branch to appoint one member, Congress to appoint a second and those two members to appoint the third member.

According to the court documents filed by Pitchlynn and Williams, the Appointment Clause of the Nation’s Constitution “vests the power to appoint executive staff solely with the Principal Chief. By removing the power of the Chief to appoint two board members, Congress intrudes into a function reserved exclusively to the Executive Branch of government.”

Also at issue in the case is whether federal law should be followed if a similar law is not available under tribal law. Williams argued in court papers that the lower court ruling that found in favor of Gray correctly decided the Sept. 11, 2008 case based on interpretation of the Osage Constitution and not the U.S. Constitution.

“When I’m in federal court, I apply those laws. When I’m in tribal court, I apply those laws,” Williams said. Gill countered in court papers saying the Nation’s Judicial Branch has a civil procedure code, which states: “In all civil actions, the court shall apply any laws of the United States that may be applicable…”

Drent asked Williams if he could cite a tribal case decided solely on tribal law and he referred to one case decided in the Chickasaw Nation court system. When asked for more examples by Drent, Williams said he would have to file additional documents to cite other cases.

Gill and Williams addressed the justices on behalf of their clients. Mason and Executive Branch officials did not speak during the hearing.

Chief Justice Charles Lohah thanked the attorneys for “interesting and enlightening arguments. We will issue our opinion in writing,” he said before adjourning the 90-minute court session just before 3 p.m.

It’s unknown when the justices will issue a decision.


Benny Polacca

Original Publish Date: 2009-08-20 00:00:00

Benny Polacca

Title: Senior Reporter


Instagram: @bpolacca

Topic Expertise: Government, Tribal Government, Community

Languages spoken: English, basic knowledge of Spanish and French

Benny Polacca (Hopi/ Havasupai/ Pima/ Tohono O’odham) started working at the Osage News in 2009 as a reporter in Pawhuska, Okla., where he’s covered various stories and events that impact the Osage Nation and Osage people. Those newspaper contributions cover a broad spectrum of topics and issues from tribal government matters to features. As a result, Polacca has gained an immeasurable amount of experience in covering Native American affairs, government issues and features so the Osage readership can be better informed about the tribal current affairs the newspaper covers.

Polacca is part of the Osage News team that was awarded the Native American Journalists Association's Elias Boudinet Free Press Award in 2014 and has won numerous NAJA media awards, as well as awards from the Oklahoma Press Association and SPJ Oklahoma Pro Chapter, for storytelling coverage and photography.

Polacca earned his bachelor’s degree from Arizona State University and also participated in the former American Indian Journalism Institute at the University of South Dakota where he was introduced to the basics of journalism and worked with seasoned journalists there and later at The Forum daily newspaper covering the Fargo, N.D. area where he worked as the weeknight reporter.


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