In yet another round in the long, ongoing dispute between Eastern Shawnee tribal members and its Business Committee the Court of Indian Appeals upheld the previous findings of the lower Court of Indian Offenses against the committee on Sept.13.
The Chief MagistrateWilliam C. Wantland of the Court of Indian Appeals for the Eastern Shawnee Tribe's Eastern Oklahoma Region filed a ruling in the Appeal of Petitioners, tribal members; Charles Enyart, Bud Enyart, Van Huggins, Norman Krause, Vanna Koepke, and Bud Nelson verses Respondents, the Business Committee of the Eastern Shawnee Tribe of Oklahoma (ESTO), and Chief Glenna Wallace.
The timeline of the history of this ongoing case is as follows:
• June 14, 2008 - An ordinance is adopted after a citizen initiative election is held. The ordinance does not allow elected officials to receive compensation from the Eastern Shawnee Tribe in any capacity other than for their elected office.
• Jan. 19, 2009 - The Eastern Shawnee Business Committee was presented a petition seeking a citizen referendum.
• March 21, 2009 - The Eastern Shawnee Business Committee submitted a measure to the Election Board which conflicted with the previously passed initiative and this new referendum passed. It allowed tribal employees elected to a tribal office to retain their employment compensation and benefits while serving in elected positions.
• April 28, 2011- The court orders enforcement of the initial ordinance and gives the tribe a May 6 deadline for compliance.
• May 5, 2011 - A 'Motion to Supplement the Defendant's Motion for a New Trial and Brief in Support' is filed.
• May 12, 2011 - The court ordered that all compensation of officials potentially affected by the new ordinance be immediately suspended.
The lengthy court battle began when the petitioners brought an action to the Court of Indian Offenses challenging the validity of a tribal civil referendum that was held March 21, 2009. The referendum stated, "Tribal employees who are tribal members and who are elected to a tribal office shall retain their employment, compensation, and benefits with the Tribe while they serve in their elected position."
This referendum followed a citizen initiative election held June 14, 2008, it's passage resulted in the adoption of an ordinance, in regards to Article XIV of the Eastern Shawnee Constitution that said in part "No elected official shall receive any compensation from the Eastern Shawnee Tribe of Oklahoma for services provided by said elected official in any capacity other than their elected office." Certain elected officials were purportedly affected by the passage of this initiative and it was not enforced after its passage in 2008.
On Jan. 16, 2009, the Business Committee was presented a petition seeking a citizen referendum. The Business Committee considered the petition at a special meeting that the lower court described the purpose of the meeting where this action took place as "undisclosed," but seemingly, "to overcome the Initiative Measure.
Following an injunction that was filed in the case, on April 28 with a deadline of enforcement of May 6, ordering the members of the Business Committee affected by the initiative to choose which office to resign from, and then again on May 12, and May 16, 2011 the Eastern Shawnee Court of Indian Offenses issued orders addressing jurisdiction, Constitutional infractions, and declaring the March, 21, 2009 referendum "void and of no effect."
On May 5, 2011 a Motion to Supplement the Defendant's Motion for a New Trial and Brief in Support was filed.
An appeal was then filed by the respondents.
This appeal's ruling addresses the three issues brought in the case; challenges to the court's jurisdiction, immunity from suit, and the Court of Indian Offense's orders.
The Appeals Court's decision states that the appellants argued that the Constitution of the Eastern Shawnee Tribe does not contain sufficient "magic language" to constitute a grant of jurisdiction. They further cited Sec.11.118(d) that a tribe may not be sued in a court of Indian Offenses unless its governing body has specifically waived its tribal immunity.
The Appeals Court found that under Article 10, Section 1 of the Eastern Shawnee Constitution the language was sufficient to satisfy the conditions and support the Eastern Shawnee Court of Indian Offense's jurisdiction and saw no reason not to follow it citing support in the case of Inyart v. Eastern Shawnee Board, et al, CIV-05-MOIP, March of 2006 in it's ruling. Article 10 Section 1 states: "Until such time as the Business Committee determines that the Tribe is financially or otherwise prepared to maintain a separate Tribal Court, the judicial authority of the Tribe shall be exercised by the Court of Indian Offenses. The jurisdiction of the Court of Indian Offenses shall include, but not limited to, criminal and civil jurisdiction, including settlement of tribal disputes and interpretation of this Constitution and tribal enactments."
Regarding the Business Committee's immunity from suit the Appeals Court ruled that, "...the problem with the Appellant's argument is it would render the Constitution's grant of jurisdiction to resolve tribal disputes meaningless." The court went on in it's decision stating, " ...The Eastern Shawnee Constitution explicitly states the Court is granted jurisdiction to resolve tribal disputes. We find this to be a sufficient waiver of immunity, as tribal disputes can only be created by and vis-a-vis tribal officials, branches and entities - the Respondents in this case."
The Appeals Court's ruling goes even further stating, "...the Record in this case points to acts taken in total disregard of the Eastern Shawnee Constitution and laws as well as rules of procedure adopted by the Business Committee. Individual business committee members who refuse to act in accordance with same are acting outside any authority granted to them and therefore lose their immunity."
After finding that the lower court had jurisdiction and that sovereign immunity is not an issue in the case, the Appeals Court addressed the challenge of the lower court's orders from April 28, May 12 and May 16. The Business Committee's referendum was declared invalid for three reasons: lack of 10 day Notice of Meeting, Posting and action taken pursuant to an incomplete agenda, and a conflict of interest by two of the voting committee members.
The Appeals Court's ruling stated, "The lack of notice compliance is sufficient to render the meeting and all actions arising from it invalid. The call for a General Council vote on the referendum was null and void for failure to give notice of at least 10 days..."
The Appeals Court concluded it's ruling with "...it is incumbent on the Business Committee to properly follow the dictates of the constitution and law to properly place the referendum before the people. It is therefore ordered that the April 28, 2011 order of the Court of Indian Offenses is hereby affirmed. The orders of May 12 and May 16, 2011 are reversed to the extent there is no finding that the Business Committee members are in fact receiving compensation from the Eastern Shawnee Tribe other than its elected officials. The case is remanded back to the Trail Court for findings not inconsistent with this order."
Regarding the Indian Appeals Court's decision, Eastern Shawnee Chief Glenna Wallace said, "I will uphold whatever the court rules. Judge Wantland's ruling, in my opinion, is consistent with my interpretation of the of the Constitution. A lot of this has been because of different interpretations of the Eastern Shawnee's Constitution."
Jack Ross who serves on the Business Committee said of the decision,"At the advice of our attorney we have no comment at this time. We will be reviewing our options to determine what further action we will take in regards to this case."
The News-Record requested a statement from attorneys for both sides in the case, John Ghostbear and David Anderson and had not received any at press time.