The Fifth Osage Nation Congress is referring the question to Osage voters of whether or not the definition of marriage in Osage law should include same-sex couples. The Osage Nation Election Board has set the date for the Special Election for March 20, 2017.

The election, by legislative referendum, is the first of its kind since the reformation of the 2006 government.

It comes after various members of the Congressional Governmental Operations Committee were unable to agree on the issue. The issue of same-sex marriage has been a controversial one for the Congress. A bill recognizing same-sex marriage licenses, but not allowing for same-sex marriages to be performed in the Nation passed in the Spring Hun-Kah Session in March.

The sponsor of the same-sex marriage bill that will go before the Osage people is Congresswoman Alice Buffalohead. She said she didn’t come to the decision for a special election lightly and the fact that the Congress couldn’t come to an agreement on the issue was “very sad.”

“Going this route wasn’t what I envisioned as the sponsor, but it was the only way for me to get it out of committee and at least try to make it a more fair and just world for the Osage people that we serve. So, that’s why I agreed to it going to a vote of the people,” she said.

Voting “yes” for the special election were Congress members Buffalohead, John Maker, Jim Norris, Angela Pratt, Ron Shaw, William “Kugee” Supernaw, Joseph Tillman, Maria Whitehorn and Archie Mason. Voting “no” were Congress members Shannon Edwards, Otto Hamilton and RJ Walker. Both Edwards and Hamilton said the Congress is elected by the people to make these decisions and Edwards noted a special election could cost up to $30,000 and she didn’t think that was the best way to spend the people’s money.

Supernaw said the Constitution allows for referendum elections and the drafters knew these types of issues would need to go before the people. “There are passionate people on both sides of the issue and in my opinion it’s pretty evenly divided. I ask you to support this and I think it’s the fairest way to settle this issue.”

Buffalohead said if the provision fails in the special election, she would bring it back before Congress until it passes by the Congress. 

Special Election

The Osage Nation Election Board met on Oct. 11 to set the date for the special election and discuss getting the information out to the people.

The special election will proceed like any other general election. There will be early voting days, absentee voters will receive a ballot in the mail, those wishing to vote absentee for the first time will need to contact the election office for an absentee ballot request.

Election Board Chair Shannon Lockett said constituents will receive information about the election in the mail from the election office. She also reiterated that it is very important for tribal members to keep their addresses updated with the Osage Nation Membership office, as well as the election office and the Osage News because the newspaper publishes vital information about the elections.

Buffalohead was present for the election board meeting and said the Congress is most likely going to meet in special session before the end of the year. She said other members of Congress are working on additional questions to be added to the ballot for the special election.

Congresswoman Whitehorn sponsored a resolution to amend the Osage Nation Constitution, it passed unanimously. The question will be on the ballot for the special election. Voters will consider an amendment to Article VI, Section 23, of the Legislature and its duties of the Annual Budget.

The new language reads: “The annual budget of the Osage Nation shall be governed by the principles of transparency and accountability, and the budgetary process encompassing those principles shall be set forth in Osage law.”

Whitehorn’s amendment comes after a contentious Tzi-Zho Session where the Congress repeatedly asked for supporting documentation from Principal Chief Geoffrey Standing Bear to explain the Executive Branch’s budgets. Both branches are headed to court on the issue.

Same-sex marriage

Currently, Osage Nation law allows for marriage licenses from same-sex couples to be recognized that were performed in other districts.

The Governmental Operations committee met on Sept. 8 to discuss the same-sex marriage issue. Those members include, Chair Alice Buffalohead, Vice Chair Maria Whitehorn, James Norris, William “Kugee” Supernaw, Joseph Tillman and RJ Walker.

“The United States government is no longer willing to discriminate against same-sex marriage, but the Osage Nation is, against our own tribal members,” Buffalohead said. She said she had a number of Osages ask her to sponsor the same-sex marriage bill.

“I’ve had many people support the notion of not allowing same-sex marriages in Osage Nation,” said Congressman Ron Shaw, who is not a member of the Governmental Operations Committee. “I know you’ve had people come talk to you and ask you to file this and I’ve had people who were very pleased that the Congress chose to not pass a law to change the definition of marriage to two persons, from a man and a woman, as it currently stands. So I think the people who support keeping the definition of marriage as it is are a silent majority.”

Shaw also pointed out that the Osage Nation has never performed a marriage, but it has performed many divorces.

Buffalohead said she was aware that no marriages have been performed in the Osage court, but if the couple is over 18, and in love, they should have that right.

“Practical and functional? Silent majority? There was probably a big silent majority when American Indians, African Americans and women, weren’t allowed to vote. There was probably a big silent majority. No, they don’t need to vote. No, they don’t need to own land. A woman’s right to choose? The law prevailed, on what was right for all people – it’s called equality,” she said.

Tillman asked if the current law applied to the transgender community. Buffalohead said no, and as the law currently stands, if a person was transgender and wanted to get married in the Osage Nation, they could.

Supernaw said someone sent him a letter and said they no longer wished to receive his “Notes to the Nation” because they believed him to be a “homophobe” since he voted against the same-sex marriage provision in the spring Hun-Kah session.

He said he was responsible for the domestic relations law and a right to marry in the Osage courts because as a sovereign nation, the Osage should exert their sovereignty.

“I would hate to turn the Osage Nation into a place where a substantial number of these marriages are performed,” he said. “I just don’t know. I’m really confused by it. Are we pandering to a certain people? Is there a real need for this? I don’t know how I’m going to vote for it.”

Shaw said he’s researched other tribal codes from other tribal nations and how they handle the same-sex marriage issue, and he said there aren’t many who allow it. He said the two largest tribes, the Cherokee Nation and the Navajo Nation, do not allow it.

“This can be one of those issues where fear can influence your vote, to be misconstrued as being biased, discriminatory, unfair, not representative, and as we sit up here and make our decisions, and we have to vote, with cameras, microphones listening in, sometimes that fear can work on you, influence your vote,” he said. “If this gets out of committee and goes to the floor of Congress, I just ask you to stand your ground, vote for your convictions, put your fear to the side. Because when you say we’re representing all Osages that doesn’t include this silent majority who are probably not as vocal, but they’re there, we’ve all talked to them, they’re aware of it and I ask you to not forget them; do not let that fear influence your vote.”  

Norris asked what would happen if same-sex marriages are allowed to be performed in the courts and an Osage judge refuses to marry the couple. He asked if Osage judges would be put in jail or fined. Buffalohead said there are tribal nations currently being sued for not allowing for same-sex couples to be married.

“Because when a group of people become tired of being discriminated against, they go to court. And in the end someone won, same-sex unions. That’s how the federal government came up with their decision. Do we have tribal members seriously considering suing the Osage Nation for discrimination because we don’t allow same-sex unions? Yes, we do,” Buffalohead said. “People don’t want to be treated badly, people don’t want to be left out. I would imagine our ancestors didn’t want to be left out, and being treated as second-class citizens. I’m glad that they rose up, because if they wouldn’t have I wouldn’t be sitting in this seat where I sit right now.”

Whitehorn said she spoke with Edwards when the issue was first brought to the Congress and asked her whether she would consider putting it on a referendum ballot before the Osage people.

“I believe I represent a segment of Osages too that feel like they’re being politicized and come up against because of their views on marriage issues and I believe they are being discriminated against in the counterpart also,” Whitehorn said. “So I think this would be best put before the Osage people that way we could know and see what the people wanted, how they wanted to proceed. I think there’s a difference in going to a ballot box and marking your conscience on a ballot then there is for 12 people to make that decision when it’s been highly politicized in public and you’ve been called names like ‘bigot’ or a ‘homophobe,’ which I’m neither one. So I believe this should be put before the Osage people and I would respectfully request that you would think our citizenry is capable of making that decision at the ballot box for the Osage Nation.”

Walker said he was not in favor of passing what he believes is his responsibility as a Congressman.

“I don’t recall, as a citizen of the United States, ever voting for something like this. It’s determined by the legislators, the elected officials, and the court systems. It would be very interesting, and it would get a lot of attention, but I think it would be a bad precedent to set to send something like this that I believe to be our responsibility, to the people,” he said.