Embattled Osage Principal Chief John D. Red Eagle is challenging the legality of a process by which the tribal Congress is to consider removing him from office.
A petition filed late last week on behalf of Red Eagle asks the Osage Nation Supreme Court to rule on the constitutionality of the removal process. Legal counsel for the chief contends the process is "fundamentally flawed and biased" — in part because of Congress "internally contriving rules for removal that improperly enlarge its role in the removal process."
Removal of Red Eagle from office was recommended Oct. 28 in a report presented to Congress by a Select Committee of Inquiry, a five-member congressional panel which conducted a two-month investigation into a list of more than a dozen allegations of wrong-doing made against the principal chief.
The report said committee members had found sufficient evidence to support seven of the 15 allegation. It recommended that a motion for Red Eagle’s removal from office be made based on four claims originally deemed "sufficient" and two "modified" allegations.
Each of the investigated allegations involved ethics violations and instances of abuse of power that were claimed to have been committed by Red Eagle since he became principal chief in 2010. Following receipt of the SCOI report, the Osage Congress scheduled a special session for 10 a.m. Thursday. One item is on its agenda: "Consideration of a motion for removal of Principal Chief Red Eagle."
In all six of the standing allegations, the chief is charged with "malfeasance in office." Five of those charges also accuse him of "disregard of constitutional duties and oath of office, and arrogation of power." One allegation further cites Red Eagle for "abuse of the government process and undermining the integrity of the office."
The recently-filed petition by Red Eagle claims that the Osage Nation Congress promulgated rules which impermissably lowered the grounds for removal to include "undermining the integrity of the office, disregard of constitutional duties and oath of office, arrogation of power, or abuse of the government process."
Red Eagle asks the court to make a declaratory judgment "in order to settle the controversies between the executive and legislative branches and to avoid further irreparable injury to the Osage Nation…"
"The facts of this case are not believed to be in dispute," states the petition, which was filed Thursday on behalf of the chief by the Oklahoma City law firm of Hobbs, Straus, Dean and Walker.
Attorney Kirke Kickingbird said the flawed process has denied Red Eagle equal protection and due process under Osage law. He said the tribal Congress is "trying to make mountains out of mole hills." Kickingbird pointed out that the three-level Osage government has only been in place since 2006 and it is still in an evolutionary stage.
"It taking some time to adapt to changes that have taken place since the tribal council days," said Kickingbird, who added that he hopes resolution of the difficulties will ultimately result in improvements to the Osage government.
The petition calls on the court "to resolve disputes over the interpretation of language or provisions contained in the Osage Constitution." Kickingbird said the current conflict stems from basic disagreements between the tribe’s executive and legislative branches.
According to the lawsuit, the removal process would infringe on the chief’s equal protection and due process rights. It also shifts judicial responsibilities to the legislative branch and creates conflicts of interest for members of the Congress who bring the charges, conduct the investigation and serve as trial jurors, the petition claims. The petition points out that three of the committee’s ethics law findings against Red Eagle "are still under the present jurisdiction of the Osage Nation Trial Court."
The suit says Red Eagle "has suffered particularized injury, including damage to reputation and character assassination…that can be remedied by declaratory judgment and/or other injunctive relief" ordered by the Court.
Rules enacted by the tribal legislature earlier this year state that "on the next legislative day" after the removal motion is declared "in order" by Clerk of Congress. The motion is to then be presented for a vote, with approval by a two-thirds of the 12 members of Congress needed to initiate trial proceedings.
The tribal constitution says such a trial would be presided over by an Osage Nation Supreme Court Justice. The congressional rules stipulate that a special session for a removal trial cannot be held less than 20 days after approval of the motion for removal. At the close of the public trial, concurrence of five-sixths of the congressional members would be required to remove a chief from the executive office, the Osage Constitution states.