PETITION OF JAMES R. GRAY,
(Principal Chief of the Osage Nation, )
01
(Seeking Judicial Review ofONCA 08-07. )
CaseNo.:
(With Interested Parties Stated As: )
FAREN REVARD ANDERSON; JERRI
JEAN BRANSTETTER;
SHANNON EDWARDS;
MARK FREEMAN;
DEBRA LITTLETON; ARCHIE
MASON; RAYMOND RED CORN;
EDDY RED EAGLE, JR.;
DOUG REVARD;
ANTHONY SHACKELFORD;)
MARK SIMMS; and WILLIAM )
SUPERNAW, Members ofthe 1st Osage )
Nation Congress. )
PETITION
COMES NOW Petitioner James R. Gray ("Petitioner" or "Chief Gray"), Principal
Chief of the Osage Nation (the "Nation"), pursuant to the authority vested in the Executive Branch of the Nation's Government under Article VII of the Nation's Constitution, and respectfully submits this Petition seeking declaratory relief based on the Court's judicial review and interpretation of ONCA 08-07, the Independent Press Act of 2008 (the "Act"), to detennine the constitutionality of the Act under the Nation's Constitution. For his Petition, Petitioner alleges and states as follows.
lliRISDICTION
1. Jurisdiction is proper in the Osage Trial Court under Section 5 of Article VIII
of the Nation's Constitution in that the Osage Trial Court has original jurisdiction, not otherwise reserved to the Supreme Court, over all cases and controversies arising under the Constitution, laws, customs, and traditions of the Osage Nation.
2. This action is appropriate under Section 1 of Article VIII of the Nation's
Constitution since Plaintiff is invoking the jurisdiction of the Comt to interpret a law enacted by the Osage Congress to determine whether said law is a constitutional enactment.
BACKGROUND
3.
Petitioner James R. Gray is the duly elected Principal Chief of the Osage
Nation serving as the supreme executive authority of the Nation, whose duties and powers are outlined under Article VII of the Osage Constitution.
4.
This Petition identifies as "Interested Patties" all twelve members of the 151
Osage Nation Congress. Petitioner's claim for relief is not against the Osage Congress and does not require the Court to assert jurisdiction over the Congress in order for Petitioner's claim to be heard. In the interest of due process, however, the Osage Congress is being formally notified of this claim and will be given adequate opportunity to respond, if it so chooses.
5.
The Act was first enacted as a bill by the Osage Congress on April 9, 2008. A
copy of the Act is attached hereto as Exhibit "1." The Act describes its purpose as
establishing measures "to ensure the freedom of the press and to ensure the tribal
publications have the independence to report objectively.
6.
On April 14, 2008, Chief Gray vetoed the bill and transmitted an Executive
Veto Message to the Congress describing his reasons for the veto. A copy of Chief Gray's veto message is attached hereto as Exhibit "2." Chief Gray based his reasons for the veto on Section 3(A) of Article IV of the Osage Constitution since Chief Gray believed the Act was 2 an enactment to regulate the structure and content of the Osage News and, thus, the Act would be in violation of Section 3(A).
7. On April 17,2008, the Osage Congress overrode Chief Gray's veto of the Act.
CLAIM FOR RELIEF
8. Petitioner has standing to invoke the jurisdiction of this Court to interpret the
constitutionality of the Act since, as Principal Chief, Chief Gray is bestowed with the duty and responsibility of executing the laws of the Nation. If the Act is indeed unconstitutional, Chief Gray would be violating his oath to uphold the Osage Constitution and his duty to the Osage People by enforcing an unconstitutional law. Thus, Chief Gray invokes the jurisdiction of this Court to issue a ruling as to the Act's constitutionality, as is within the authority and purview of this Court under Article VIII of the Osage Constitution.
9. Section 3(A) of Article IV of the Nation's Constitution provides in pertinent part:
The Osage Nation government in exercising sovereign powers shall not:
A. make or enforce any law prohibiting the free exercise of religion, or
abridging the freedom of speech or the press, ....
10. Petitioner asserts the Act violates Section 3(A) in the following ways:
(A)
the Act attempts to establish a free and independent newspaper; however, the
newspaper cannot be inherently free and independent because the funding that establishes it and supports it comes through direct appropriations from Congress and because the Act dictates the structure of the newspaper by establishing an Editorial Board whose actions and authority are predetermined and regulated by and through the Act. 3
(B)
the Act unlawfully regulates and restricts the content of the newspaper by
establishing a duty of the press to report on activities of the government and other "news of interest" that comports with an editorial policy forced on the Editorial Board (see Section 7 of the Act), rather than recognizing that a truly free and independent press must be able to determine its own content. The Act contains content-based restrictions on what is newsworthy and appropriate. Such a restriction acts as a prior restraint on free speech and the press since the newspaper must always be mindful that its content satisfies the requirements of the Act or risk being found in violation of the Act and subject to possible funding restrictions or other government sanctions.
11. Petitioner asserts the Act violates Articles VI and VII of the Osage
Constitution by establishing an Editorial Board comprised of one appointment made by the Principal Chief and one appointment made by the Congress, with confirmation to be made by Congress (see Section 6 of the Act). Nothing in the Osage Constitution allows for this sort of structure since Congress is not authorized to appoint a member to an Executive Branch board. Moreover, it is constitutionally improper for the Congress to create under the Act an entity that is supposedly "free and independent," yet, under the Osage constitutional structure, any entity under the Osage government created by Osage law, must fall within one of the branches of government. Such an entity cannot be inherently free and independent. WHEREFORE Petitioner James R. Gray, as Principal Chief of the Osage Nation, respectfully submits this Petition and requests the Court issue a ruling finding that ONCA 08-07 is unconstitutional and null and void.
Dated this 14th day of July, 2008.
Respectfully submitted,
PITCHLYNN & WILLIAMS, PLLC
G S. PITCHLYNN, OBA # 7180
O. JOSEPH WILLIAMS, OBA # 19256
P.O. Box 427
124 East Main Street
Norman, OK 73070
Telephone: (405) 360-9600
Facsimile: (405) 447-4219
E-mail:gspitchlynn@pitchlynnlaw.com
jwilliams@pitchlynnlaw.com
ATTORNEYS FOR PETITIONER
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