IN THE MUSCOGEE (CREEK) NATION SUPREME COURT

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MUSCOGEE (CREEK) NATION

NATIONAL COUNCTh,

)

SUPREME COURT

and

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E~ 0

ROBERT TREPP, an individual Muscogee

(Creek) tribal citizen, and DOES 1-10,

Inclusive,

)

Petitioners,

MUSCOGEE (CREEK) ELECTION

BOARD, A.D. ELLIS, in his capacity as

Principal Chief of the Muscogee (Creek)

Nation, and MUSCOGEE (CREEK)

CONSTITUTIONAL CONVENTION

COMMISSION,

Respondents.

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MU~(~GFF ~CUO~ NAIION

Supreme Court Case

No. SC 09-10

MVSKOKVLKE FVTCECKV CUKO HVLWAT VKERRICKV HVYAKAT

OKETV YVNKE VHAKV HAKATEN ACAKKAYEN MOMEN

ENTENFVTCETV, HVTVM MVSKOKE ETVLWVKE ETEHVLVTKE VHAKV

EMPVTAKV

CHIEF JUSTICE JONODEV CHAUDHURI, VICE-CHIEF JUSTICE HOUSTON

SHIRLEY AND JUSTICE AMOS McNAC CONCURRING. JUSTICES LEAH HARJO

WARE AND DENETTE MOUSER DISSENTING, JUSTICE KATHLEEN SUPERNAW

NOT PARTICIPATING.

OPINION AND ORDER

For the reasons discussed below, this Court vacates its December 21, 2009 Opinion in

this matter, assumes original jurisdiction, and dismisses Petitioners’ claims with prejudice.

SUMMARY

In a Special Election held on November 7, 2009 (“Special Election”), the electorate of the

Muscogee (Creek) Nation (“Mvskoke” or “Nation”) voted to approve eleven of twelve proposed

amendments to the Mvskoke Constitution (“Constitution”). This event demonstrated the will of

the Mvskoke people, through ballot vote, to substantially amend the Constitution.

In the wake of this election, Petitioners filed an action in this Court challenging the

validity of the formulation and adoption of some of the amendments that were approved (the

“Approved Amendments” or “Amendments”).

In December of 2009, after briefing by all

parties, this Court issued an Opinion declining to extend original jurisdiction in this matter and

noting that the case should have first been filed in the Mvskoke District Court “where a Special

Judge would be appointed to hear it.”

In the eleven months since this Court issued that Opinion, however, and for a variety of

reasons, no Special Judge has been appointed to hear the case. For this, and other reasons set

forth below, we find that critical public policy considerations compel us to revisit the need for

lower court review. In doing so, we discover that this case is readily resolved solely by reference

to issues of law. As this Court rules upon all issues of law de novo, lower court review, while

generally desirable, is in this unique case unnecessary and in fact unjustifiable. Upon review of

the relevant issues of law, this Court finds that Petitioners’ claims cannot be constitutionally

supported and therefore must be dismissed.

Accordingly, this Court holds that: 1.) this Court exercises original jurisdiction in this case;

2.) Petitioners do not have standing; 3.) Petitioners’ prayer for injunctive relief and an

evidentiary hearing are denied; 4.) Petitioners’ claims are dismissed with prejudice; 5.) the

process by which all Amendments submitted to and voted upon by the Mvskoke people in the

Special Election as challenged by Petitioners is upheld; and 6.)

the Approved Amendments

are deemed duly-adopted amendments to this Nation’s Constitution.

II. BACKGROUND

A. Procedural History

On November 13, 2009, Petitioners filed in this Court an “Ex Parte Application for

Temporary Restraining Order and Order to Show Cause Regarding Preliminary Injunction and

Expedited Discovery” (“Application”), along with a supporting memorandum and two

declarations.

Together, these filings alleged a number of errors regarding the Approved

Amendments.’

Petitioners’ procedural arguments addressed the manner in which the

Constitutional Convention Commission (“Commission”) collected citizen input and drafted and

presented proposed Amendments for ballot vote in conjunction with the Muscogee (Creek)

Nation Election Board (“Election Board”).

Petitioners sought to “preclud[e] the [Election]

Board from certifying the results of the Special Election.” Petitioners’ Ex Parte Application for

Temporary Restraining Ordei~

On November 18, 2009, this Court issued an Ex Parte Restraining Order enjoining the

Election Board from certifying the Special Election results and ordered all parties to submit letter

briefs by November 30, 2009 addressing this Court’s jurisdiction, ripeness of the issues,

standing, and any other threshold issues. Unbeknownst to this Court at the time, the Election

Board certified the Special Election on November 17, 2009, one day prior to this Court issuing

While not framed by Petitioners as such, these alleged errors involved two categories: I.) procedural challenges,

and 2.) substantive challenges claiming that certain proposed Amendments were contradictory to one another and

other portions of the Nation’s Constitution. The claims regarding alleged contradictions among the Amendments

and their inconsistencies with other constitutional provisions are easily disposed of. Not only does the Court make

every effort to refrain from issuing declaratory or advisory opinions, the proper synthesis of any provisions of the

Constitution, whether newly adopted or long-standing, are to be addressed in the course of the application of such

provisions. Therefore, Petitioners challenges to the substance of any proposed Amendments are clearly misplaced.

cannot be resolved prospectively, and must be dismissed as patently unripe for review.

its Ex Parte Restraining Order.

On November 20, 2009, this Court issued an Amended Order rendering as moot portions

of the November 18 Order and upholding the portions requiring all parties to submit letter briefs.

Furthermore, the Court directed the parties to address in their letter briefs setting forth the impact

of the Election Board’s certification. Petitioners’ subsequent letter brief provided responses to

these issues and requested a preliminary injunction “halting the Constitutional Amendments

from going into practical effect” pending a full evidentiary hearing.

On December 21, 2009, this Court issued an Opinion dismissing this case for ripeness

and ruling that this Court would not exercise original jurisdiction.2 This Court further ruled that

the case should have been brought in the District Court for review by a Special Judge.3

As of the date of this Opinion and Order, no Special Judge has been appointed. In light

of this and other considerations, this Court finds it necessary to revisit this case and issue this

Opinion and Order.

B. Participation and Voting of Justices

It is noted that at the time of this Court’s review of and substantive vote on the issues

underlying this Opinion, there were only five Supreme Court Justices seated. Muscogee (Creek)

Nation Code of Laws, Title 27, § 3-101 (codified from NCA 82-30) states that a “judgment or

decision of the Supreme Court requires the approval of a minimum of four justices.”

rendering this Opinion, this Court holds Title 27, § 3-101 (NCA 82-30) has no force or effect

Because the case was dismissed contemplating lower court review, this dismissal was a dismissal without

~rejudice. By way of this Opinion, we now dismiss this case

prejudice.

- The current sitting District Court Judge Moore had been member of the Constitutional Convention Commission,

thus a Special Judge would be required for lower court review.

when less than six Justices are seated.4 As such, in this case, three Justices constitute a majority

and this Opinion and Order is accordingly issued as the majority opinion of this Court.~’6

III. DISCUSSION

A. Resumption of Original Jurisdiction

While this Court previously declined to exercise original jurisdiction in this matter, such

action does not remove the duty of this Court to inquire into its own jurisdiction7 in light of

compelling public policy considerations and the fact that no lower court action has yet occurred.

For reasons discussed below, we reexamine our exercise of original jurisdiction in this case and

determine that original jurisdiction is appropriate.

This Court’s authority to determine whether original jurisdiction in this case is

appropriate is inherent in its authority over judicial policy and operations. The ultimate source of

this Court’s jurisdiction is the Nation’s Constitution which gives judicial powers to the Supreme

‘

It has been a key principle throughout the history of our constitutional form of government, beginning in 1867,

that judicial decisions are made by a majority vote. Nothing in our history supports that this Court’s decisionmaking power should be based on a super-majority basis. This Court has always issued opinions based on a

majority vote and our rules only require a majority of Justices voting. See, Supreme Court Rule 3-108.

NCA 82-30 did not contemplate only five Justices reviewing a case. No legislative history is found that would

indicate the reason for establishing this provision. It is implausible to construe this law to mean that each case must

be decided by four justices when less than six Justices are on the Court. If interpreted this way, this would require

our Court to make decisions based on a super-majority. Such a legislative requirement would unduly interfere with

this Court’s internal decision- making process and would be unconstitutional. We have held in Ellis v. Muscogee

(Creek) National Council, (Ellis II), SC 06-07(Muscogee (Creek) 2007) — Mvs.L.Rep. — that any attempt to

control the Supreme Court under the guise of legislation will not be tolerated.

This Court has previously held that where NCA 82-30 required the Supreme Court to grant a jury trial when

requested by a party, this law infringed upon the inherent powers of the Court to enforce its orders, and maintain

orderly administration of justice, and was, therefore, unconstitutional. Ellis u. Muscogee Creek Nation National

Council SC 06-07 (Muscogee (Creek) 2007). ......Mvs. L. Rep.. This analysis applies directly to the provision of

NCA 82-30 requiring a concurring vote of four justices when only five justices are seated. Such a requirement

infringes on the Court’s inherent powers granted by the Constitution and therefore such provision cannot stand.

~ This does not mean, however, that in an instance when a plurality opinion is ever issued that this Court has not

met its constitutional requirement of majority.

At the time of the substantive vote of this Opinion, the dissenting Justices reserved the opportunity to provide

dissenting opinions. Therefore, separate dissenting or concurring opinions by any voting Justice may be appended to

this Opinion and Order.

‘

See Wilde v. Kell’,’, 4 Mvs.L.Rep. 159, (Muscogee (Creek) 1996) (Supreme Court has a duty to inquire into its

own jurisdiction).

Court and inferior courts. (See Muscogee (Creek) Nation Constitution, Article VII, Section 1).

Article VII,

§ 1.

Furthermore, this Court is the final arbiter of cases and controversies

concerning constitutional provisions.

See, e.g., Courtwright v. July, 4 Mvs.L.Rep.

(Muscogee (Creek) 1993); Begley, supra.

105

The Supreme Court oversees the judiciary, a

necessary and separate branch of the Nation, vested with judicial authority and power of the

Creek Nation. Done in Conference, October 31, 1986,

—

Mvs.L.Rep.

(1986). Inferior

courts may be established by, but not diminished by, the National Council, but this Court has

supreme, inherent judicial authority over the inferior courts and this Court is the supreme judicial

decision-maker. There is no higher authority in determining constitutional decisions regarding

Muscogee (Creek) Nation law or the operations of this Court and duly established inferior courts.

The Constitution does not distinguish between original and appellate jurisdiction. As an

expression of this Court’s inherent authority, however, this Court has, at times, assumed original

jurisdiction in various matters.8 Unfortunately, the standards applied by this Court for when to

exercise original jurisdiction have not always been clearly and uniformly applied in our opinions.

Despite this lack of clarity, this Court’s seemingly divergent approaches regarding original

jurisdiction can be harmonized by viewing them as a whole. When doing so, a uniform standard

emerges.

The decision of whether to accept original jurisdiction has always been made by this

Court with an eye toward good public policy. This Court recognizes the benefit of lower court

~ By way of comparison, the United States Supreme Court is limited in its exercise of original jurisdiction. See,

Constitution of the United State, Article Ill. No such limitation on Supreme Court jurisdiction exists in this Nation’s

Constitution. As such, the appropriate exercise of original jurisdiction is a matter of prudent judicial policy within

the Muscogee (Creek) Nation framework. This Nation’s Constitution vests all judicial power within the Supreme

Court and other inferior courts. As the Supreme Court is the ultimate authority within this Nation’s judiciary, this

Court must be the final arbiter of when the exercise of original jurisdiction is proper. Furthermore, as the

Constitution places a//jurisdiction within the judicial branch, questions regarding original jurisdiction are matters of

judicial, not legislative, policy.

review in most cases.9 The presumption, therefore, is that this Court should decline original

jurisdiction unless important public policy considerations indicate that assumption of original

jurisdiction would benefit the pursuit of justice. Even in such circumstances, these public policy

considerations must be weighed against the benefits of lower court review.

The most common area in which this Court has exercised original jurisdiction is cases

involving constitutional questions.

See, e.g., Begley vs. The Constitutional Commission,

Mvs.L.Rep.

(S. Ct. 06-04, 2008); Ellis v. Muscogee (Creek) National Council,

Mvs.L.Rep.

(S. Ct. 06-07, 2007); Oliver v. Muscogee (Creek) National Council,

Mvs.L.Rep.

(S. Ct. 06-04 2006); Alexander i~ Gouge, 4 Mvs.L.Rep. 226 (2003); and Ellis v.

Muscogee (Creek) National Council,

Mvs.L.Rep.

(S. Ct. 05-03/05 2006).

characterize constitutional questions as automatically qualifying for original jurisdiction would

be wrong, however. Instead, the importance of the constitutional questions in these cases were

such that public policy required this Court to exert original jurisdiction. Such considerations

outweighed any benefits of lower court review.10 Therefore, in order to clarify our standards, we

will apply a two-pronged test for when this Court shall exercise original jurisdiction.

From this point on, we will only accept original jurisdiction if: I.) important public policy

considerations indicate that assumption of original jurisdiction would benefit the pursuit of

justice; and 2.) if these public policy considerations outweigh the benefits of lower court review.

Both elements must be satisfied for this Court to appropriately exercise original jurisdiction.

~ In general, the District Court is better-suited to make findings of fact, as trial courts are usually in a better position

to admit and review evidence and weigh the credibility of witnesses. Allowing the District Court discretion to make

factual findings usually increases the judiciary’s efficiency and allows the Supreme Court to focus primarily on

issues of law, which we review de novo. When this Court exerts original jurisdiction over a case, the Supreme Court

cannot benefit from the District Court’s fact-finding function.

JO For example, in Begley, as here, the case could be resolved solely based on a review of dispositive issues of law,

thus negating the need for the judiciary to perform any significant fact-finding function. Supra.

Whereas, upon our initial review of this case, we determined that insufficient reasons

existed for this Court to assume original jurisdiction, present circumstances mandate

the standards articulated above

—

based on

that we resume original jurisdiction over this case.’1

General Public Policy Dictates Reexamination.

In addition to comprising part of the standard, as set forth above, for when we may exert

original jurisdiction, public policy considerations, in this unique and limited circumstance,

demand that we reexamine our previous decision to decline original jurisdiction.12

This case involves important questions regarding the validity of the Approved

Amendments. So long as these questions remain unresolved, the day-to-day functions of this

Nation’s government are compromised. Government officers and employees need to know the

language of the Constitution under which they operate. More importantly, the citizens of this

Nation have a right to know what their Constitution says.’3

While this Court originally assumed that a ruling on Petitioners’ claims could be quickly

made in a lower court, and that this Court would then be able to review the relevant

Constitutional issues in short order, this course has proved difficult. This Court initially selected

° We note that Justice Harjo-Ware, in her dissent to our December 21, 2009 opinion, argued that original

jurisdiction should have been exercised with respect to Petitioner Trepp. Justice Harjo-Ware stated: “In my opinion,

given the peculiar circumstances of this case, this Court should have exercised original jurisdiction over the

individual citizen’s contest

December 21, 2009 Opinion at 4. Due to such “peculiar circumstances,” we agree

that original jurisdiction should be exercised over Trepp, but further hold that such jurisdiction applies to all

Petitioners in this case. As discussed in footnote 19, we do not agree that the dissent’s analysis regarding Approved

Amendment Al 14’s applicability to this matter, especially as a basis for declining original jurisdiction with respect

to the National Council. We do note, however, that Petitioners’ challenges involved the process by which ~ii

Approved Amendments were submitted to the voters, so to give effect to Al14 necessarily implies the validity of all

of the Approved Amendments.

2 In no way, however, should this reexamination ever be construed to contradict the doctrine of stare decisis. This

case involves extraordinarily unique public policy considerations as discussed herein. Among the most important

considerations is the fact that no substantive District Court action has occurred since our original decline of

jurisdiction and the relevant Constitutional questions first raised by this action have yet to be resolved to this day.

This is in stark contrast to cases in which this Court has already ruled on important constitutional questions.

13 As stated in footnote I, we refrain from declaratory judgments regarding constitutional and statutory

interpretation. Nonetheless, citizens have the right to know, at the very least, what textual constitutional provisions

are in force and effect. While now is not the time to harmonize any purported inconsistencies or contradictions

among any of the Approved Amendments, we have a duty to clarify whether the Approved Amendments have been

duly enacted. Interpretation is not appropriate at this time.

an appropriate candidate to act as Special Judge, however that candidate was unavailable to

serve. Furthermore, this Court has yet to reach consensus as to another appropriate Special

Judge. Accordingly, no hearing or any other action involving the merits of this case has occurred

in the lower court. ‘4

As a result, a cloud has remained over the validity of the Approved

Amendments, hampering government functions and denying citizens the right to know what their

Constitution says.

Lower court review of this matter will necessarily result in additional time and expense

before this Court inevitably reviews the Constitutional issues at hand. While allowing these

costs may have been justified at the time of our initial opinion, the question arises whether they

are appropriate in the present circumstances.

Given the critical need for clarity regarding the approval of the Amendments, the

practical difficulties hereto faced in appointing a Special Judge, and the question whether the

costs associated with lower court review are presently justified, compelling public policy

considerations mandate that we revisit whether the exercise of original jurisdiction over this case

is warranted.’5 For the following reasons, this Court determines that it is.

Acceptance of Original Jurisdiction.

As stated above, this Court will exercise original jurisdiction only where two elements

are met: 1.) important public policy considerations must indicate that assumption of original

jurisdiction would benefit the pursuit of justice; and 2.) these public policy considerations must

14 The only lower court action in this matter is that the District Court Judge, Honorable Patrick Moore, has recused

himself in the matter.

‘5As noted above, the relevant substantive points of this Opinion (re-visitation of original jurisdiction, dismissal due

to lack of standing, etc.) was voted upon by the Court several months ago and prior to a sixth Justice joining the

Court. Since that vote, this Court has exercised significant care in the formulation and structuring of the written

form of this Opinion. During this drafting period, internal conflicts within our Nation’s government have increased

tremendously. Most of these conflicts involve inter-branch disputes involving the National Council. These public

matters, appropriate for judicial notice, further illustrate the need to speedily clarify the validity of the Approved

Amendments and the changes to the structure of our Nation’s government they entail.

outweigh the benefits of lower court review.

Prong I

—

Public Policy.

As a practical matter, as long as this case remains unresolved, a perceived cloud over the

Approved Amendments remains.’6

This situation is imminently unfair to the people of the

Nation who collectively voiced their will in the Special Election and have a right to know

whether their vote mattered.

Additionally, as stated above, the day-to-day operations of the

government requires certainty as to the specific language of the Constitution under which it

operates.

For these reasons, the pursuit of justice is served by resolving the underlying

constitutional issues in this case as quickly as possible.

Moreover, one of the Petitioners, the National Council, is the legislative branch of this

Nation’s government.’7 As such, the question of the National Council’s standing in this matter,

as well as the constitutional issues raised by Petitioners, are constitutional questions of the

utmost importance that this Court, and only this Court, shall ultimately determine.

Finally, public policy dictates that we not waste judicial resources, or permit parties to

waste one another’s resources. This Nation’s priority should be to serve its people, and the

limited resources for such service should be conserved whenever possible. Further proceedings

in this case, when this case may be resolved solely by reference to issues of law, as discussed

below, would be an unjustifiable waste of limited Mvskoke resources as well as those of the

16 The effect of this uncertainty has, to some degree. served Petitioners’ stated goal of forestalling implementation of

the approved amendments. See, Pet. Letter Brief November 30, 2009 at] (requesting preliminary injunction to

“halt the Constitutional Amendments from going into practical effect”).

17 As has been the unfortunate history of this Nation, several lawsuits have been filed between tribal officers or

bodies (In re District Judge, 2 OkIa. Trib. 54 (Muscogee (Creek) 1990)

Mvs. L. Rep.;_ National Council v.

Cox, 5 OkIa. Trib. 513 (Muscogee (Creek) 1990) .Mvs. L. Rep.;

Larry L. Oliver vs. Muscogee (Creek)

National Council (SC 06-04) __Mvs. L. Rep.__; A.D. Ellis, In his Official rapacity as Principal Chief of the

Muscogee (Creek) Nation vs. Muscogee (Creek) Nation National c’ouncil (SC 05-03/05) _Mvs L. Rep.__: A.D.

Ellis, in his Official Capacity as Principal Chief of the Muscogee (Creek) Nation vs. Muscogee (Creek) Nation

National Council (SC 06-07), (Muscogee (Creek) 2007)

Mvs. L Rep....; A.D. Ellis, in his Official Capacity as

Principal Chief of the Muscogee (Creek) Nation vs. Muscogee (Creek) Nation National Council (SC 09-06)

(Muscogee (Creek) 2009).

Mvs. L. Rep..

litigants.

The preceding concerns establish sufficient important public policy considerations to

merit weighing original jurisdiction with the benefits of lower court review.

Prong II

—

Public Policy Outweighs Benefits of Lower Court Review.

As discussed supra, the entire judicial system typically benefits from lower court review,

especially when crucial issues of fact are present in a case.

This is because trial courts are

generally better-suited than appellate courts to conduct factual reviews.

In cases involving

dispositive issues of law, however, the benefit of lower court review is minimal.18 As this Court

reviews all lower court rulings on issues of law de novo, all dispositive constitutional law issues

are ultimately decided by this Court.’9 Upon review, dispositive issues of law are manifest in

this case.20 Therefore, there is almost no benefit to lower court review in the present matter, and,

weighted against the compelling public policy issues discussed above, lower court review is

unnecessary.

Having determined that extremely important public policy considerations merit original

jurisdiction, even when weighed against the benefits of lower court review, this Court hereby

exercises original jurisdiction over this case. Next, the Court must review the justiciability of

18 This

is evident when considering appropriate standards of review used in our appellate jurisdiction. This Court

reviews issues of law on appeal de novo, and gives no deference to the trial court’s legal determinations. The same

is true for mixed questions of law and fact that are primarily legal questions. Regardless of whether appellate or

original jurisdiction is exercised, this Court has the duty and Constitutional authority to be the final interpreter of

this Nation’s Constitution. See, e.g., Ellis v. Muscogee (Creek) Nation National Council, SC 05-03/05 Muscogee

(Creek) 2006)

Mvs.L.Rep. .

(“the Court is also mindful of our role as arbitrator of disputes and there are

times that additional clarification to the Constitution[alj meaning is needed”).

9 Amendment Al14 as placed on the ballot stated: “Shall language be added to the Constitution to read as follows:

All litigation between tribal officers shall originate in the District Court of the Muscogee (Creek) Nation, with the

right of appeal to the Supreme Court. All questions of fact shall he determined by a jury.” This amendment was

approved. This Court does not address the interpretation of this amendment or whether the National Council is a

“tribal officer” but notes that this case was filed in this Court requesting reversal of the certification of the

amendments voted upon on constitutional grounds. For the reasons stated herein, this Court assumes jurisdiction as

is its constitutional right and obligation.

20 As dispositive issues of law are manifest, an evidentiary hearing is patently unnecessary to resolve this case, and

therefore Petitioner’s prayer for such a hearing must be dismissed.

Petitioners’ claims.

B. Petitioners Lack Standing

This Court will not hear a case unless a petitioner has standing. A petitioner has standing

only if he or she can demonstrate a concrete stake in the outcome of the controversy. See, Lujan

v. Defenders of Wildlife, 504 U.s. 555 (1992) (as cited and adopted in relevant part by In Re

Constitutionality of NC 98-02, 4 Mvs.L.Rep 175, 181 (Muscogee (Creek) 1999)). A petitioner

must have suffered an injury in fact to show a sufficient stake in the controversy. In Re

Constitutionality of NC 98-02, at 181. An abstract injury is not enough. Id. There must be

“sustained or immediate danger of some direct injury.” Id. In addition to having suffered a

direct injury in fact, there must also be a causal connection between the injury and the challenged

conduct to establish standing. The petitioner bears the burden of establishing standing. Lujan at

583.

National Council Does Not Have Standing.

No Injury In Fact or Casual Connection.

Petitioner National Council has failed to establish standing.

There is nothing in the

National Council’s filings that demonstrates that Petitioners have suffered any cognizable actual

or imminent injury. This is so even when the National Council’s allegations are viewed in the

light most favorable to the Petitioners and assuming all of Petitioner National Council’s facts to

be true.

As discussed with regard to Petitioner Trepp below, the National Council is incorrect in

its allegation that the Constitutional Convention Commission, in conjunction with the Election

Board, somehow erred by submitting amendments for general ballot vote that did not have the

exact wording as those voted upon during the Convention. This is not a factual question, but a

dispositive issue of law concerning the bounds of the Commission’s and Board’s Constitutional

authority as provided in the 2006 Constitutional amendment creating the Constitutional

Convention process.2’ Neither the Commission nor the Board were under any duty to submit the

exact language of amendments voted upon at the Convention to the general citizenry for general

ballot vote.

Regardless of the incorrect characterization of the alleged injuries sustained by the

National Council, any injuries sustained by the National Council in this case are “institutional”

injuries suffered by all members of the Council equally.

Such injuries are not sufficient to

provide standing to the legislative body as a whole.22

However, no injury to the National

Council as a whole is even alleged to have occurred.

While the National Council may be

“impacted” by the Approved Amendments, National Council fails to suggest how duly enacted

Constitutional amendments can be deemed invalid just because the Council is “impacted”.23 The

people of this Nation have the right to amend their delegations of authority to the various

branches through an amendment process. The fact that they did so on November 7, 2009 does

not constitute a cognizable injury to the Council.

Likewise, no sustained or imminent danger of direct, personal injury to any specific

member of the National Council is alleged in the present case.24

Adopted in 2006, amendment A105 repealed the old Article IX,

Additionally, neither the

§ 2 of the Constitution and created the

Constitutional Convention process. This amendment was in turn repealed in the Special Election.

22 See, Raines v. Byrd, 521 U.S. 811 (1997). In that analogous case from the United States federal system, members

of Congress had no standing to challenge Line Item Veto Act authorizing the President to cancel (veto) certain

spending and tax law measures that are part of a bill the President signs into law. Rather than causing a “personal”

or “concrete” injury, the challenged statute caused only a type of “institutional” injury to all members of Congress

equally. Raines was also cited by this Court in In Re Constitutionality of NC 98-02.

See, Pet. Letter Brief November 30, 2009, at 4.

24 Petitioner National Council specifically cites Amendment A67 as one of the amendments “impacting” the makeup

of the Council. However, this impact is prospective and does not affect any legislator’s existing term. Clearly, no

person has the right to an office that he/she has yet to be elected in to.

Petitioners’ Ex Parte Application nor their Response to Motion to Dismiss filed with this Court

on December 9, 2009 show any causal connection between the Special Election and any harm to

the Council or any individuals on the Council. As such, Petitioner National Council has failed to

establish standing.

National Council’s Ability to Bring Suit is Extremely Limited.

Regardless of the Petitioner National Council’s lack of standing due to the absence of

cognizable injury and failure to cite any personalized injury, Petitioner National Council also

lacks standing based on this Court’s precedent. It is imperative that this Court re-establish and

clarify the limitations on the National Council’s ability to bring suit.

This Court has previously found that only in rare cases will actions by the National

Council be entertained.25 See, Preferred Mgmt Corp. v National Council, 4 Mvs.L.Rep. 44, 50

(Muscogee (Creek) 1990).

In Preferred Mgrnt Corp. v. National Council, not only did the

majority opinion recognize the disadvantages involved in allowing the National Council to bring

a legal action, but an insightful dissenting opinion predicted the situation in which the Nation

now finds itself.

Justice Howe, in his dissent in Preferred Mgrnt, warned the Court of the error of allowing

the National Council to bring suit in any circumstance. To allow National Council standing

“invites chaos in tribal government” by providing the opportunity for the National Council to

hire independent counsel to bring lawsuits against members of its executive branch of

government. As Justice Howe stated, “mistakes have a prolific way of breeding more damaging

mistakes.”

Since the Preferred Mgmt decision in 1990, this Court has seen a never-ending parade of

25 The Court recognized the three separate branches of government as distinct legal entities and the right of each to

have separate legal representation and to have the control of expenditure of funds for purposes centered within that

branch.

litigation between the legislative and executive branches.

It is essential, in the interest of

adhering to the Nation’s Constitution and in the best interest of the Mvskoke citizens, that this

Court limit the standing of the National Council to the rare situations previously contemplated by

this Court

—

mainly to control the expenditure of its dedicated funds.

The National Council is the legislative branch of the Mvskoke government, not the

government in tow.

The ultimate source of authority in Mvskoke government is the people.

The Constitution represents a delegation of the people’s authority to the government’s three

branches, and no branch may act beyond the scope of such delegation.

Article VI of our

Nation’s Constitution sets forth the National Council’s authority. Section 2 of that Article vests

the Council only with legislative power. Section 7 enumerates the types of “matters” over which

the Council may legislate.

A common misreading of Article VI, § 7 is that the Council may exercise independent

authority over the subject matter set forth in subsection 7(a) through (j). This reading of Article

VI, § 7 is fundamentally flawed. A careful reading of the first sentence of section 7 clearly

shows that 7(a) through 0) are simply a list of appropriate subjects of legislation. Additionally,

subsection 7 clearly states that the Council’s legislation, even within the enumerated areas, is

subject to Constitutional limitations.

This Constitutional delineation of the Council’s legislative

authority is consistent with commonly-held concepts of a legislature’s powers as understood

almost universally among tri-partite governments. Accordingly, subsection 7(j), merely provides

that the Council may, within Constitutional limitations, legislate on matters involving the

exercise of power not otherwise referenced. Thus, the exercise of the Council’s authority must

necessarily be limited to those powers necessary to effectively legislate.

The power to bring suit on behalf of the Nation is generally not a power necessary to

legislate. Instead, it is inherently an executive function. A legislative body acts by passing laws,

not by enforcing them, and certainly not by bringing suit.26 To allow otherwise, outside of the

very narrow parameters allowed in Preferred Mgmt, will foster abuse of the Nation’s court

system and ultimately its citizens. As such, the case at hand is not one in which the National

Council would have standing, even with the establishment of an injury and causal connection.

Trepp and Does 1-10 Lack Standing.

Petitioner Trepp and Does 1-10, much like the National Council, have failed to establish

a specific injury causally connected to the conduct.

Unlike the National Council, Petitioner

Trepp and Does 1-10 are citizens of the Nation and allege injuries to his citizenship.

However,

people have no standing merely “as citizens” where they otherwise have no direct, personal

claim. Lujan, 504 U.S. 555.

Petitioners’ pleadings do not cite specific injuries to the unnamed Does 1-10. Instead, the

alleged injuries to Does 1-10 arise out of the same types of alleged injuries suffered by Petitioner

Trepp

—

namely alleged injuries caused by the manner in which the Commission and Board

handled their input and submitted language for the Special Election ballot. Because the alleged

basis for Trepp’s standing encompasses the basis for the Doe’s standing, the following

examination of Trepp’s standing applies to the Does as well.

In Petitioner Trepp’s Declaration filed with this Court on November 13, 2009, he states

that he participated in the 2008 Constitutional Convention held on November 7-8, 2008 (at Para.

5), that he voted on various amendments, including A67, A78, and Amendment A99, and that he

had personal knowledge of the language that was approved at the Convention to be submitted to

26 At times, the National Council may perform Constitutionally authorized non-legislative functions, such as certain

“advice and consent” and confirmation duties, however, as such functions are not legislative, the Council’s authority

to perform them are not inherent in Art. VI, § 7’s, and therefore must be authorized by a specific Constitutional

provision. In other words, unless another Constitutional provision provides otherwise, the National Council’s

authority is limited to its icgislative role, i.e., passing laws.

the tribal voters. He further states that he had knowledge that the language that was approved at

the Convention was different than what was placed on the ballot. (at Para.6-7). Petitioner Trepp

however states no injury occurred; only that the language submitted to voters was different than

what he voted on in the November 7-8, 2008 Convention, which he admits he participated in.

There is no harm alleged in Petitioner Trepp’s Declaration that would give this Court reason to

conclude an personal injury occurred or might occur.

Even assuming that the language of the ballot submitted to the people was different than

that which the Commission brought before the people at the November 7-8 Constitutional

Convention, the Commission had the authority and discretion to change the wording.

Begley, infra, at 4)•27

(See,

This Court has already addressed similar issues regarding language and

wording of amendments of the Constitutional Convention Commission in Begley v. The

Constitutional &mrnission SC 06-06 (Muscogee (Creek) 2006).

Commission is a civil office. Begley at 3.

We first stated that the

As part of the Commission’s responsibility we

observed that the “Constitutional Commission shall organize and promulgate rules and

regulations

that will ensure citizen input and participation.

conduct public hearings

accept citizens’ views on constitutional amendments, revisions, alterations or additions

.“

Id.

at 3-4. The language of Article IX, Section 2 (d) is clear that the Constitutional Convention

Commission shall then “work with the Election Board to prepare wording for separate ballots for

27 This Court takes Judicial Notice of a Memorandum Opinion by the Muscogee (Creek) Nation Attorney General

on December 15, 2008, addressed to the Constitutional Commission in regards to questions presented by the

Commission about language proposed in Amendment A67 (‘A67”). See, Cox v. Kamp, 2 Okla.Trib. 303 (Muscogee

(Creek) 1991) (Muscogee (Creek) Nation’s Supreme Court may take judicial notice of laws and official records of

the Nation). The Nation’s Attorney General was asked for his Opinion by the Constitutional Commission for clarity

and guidance and to make sure any proffered amendment would in fact be constitutional. The Attorney General

stated in his Memorandum that as proposed. A67 would not be constitutional. Memorandum of Attorney General

Roger Wiley, December, 15, 2008. The Attorney General then rewrote the Constitutional Amendment A67 so that

it would, in his opinion, pass both United States Constitutional muster and, more importantly, Muscogee (Creek)

Nation Constitutional parameters. The Commission adopted this rewritten A67 amendment which was subsequently

put on the ballot. Petitioners’ arguments are flawed on their face as part of the Commission’s responsibilities and

duties were to make sure that amendments that were presented to the people in fact met constitutional standards.

The Commission’s authority would certainly include seeking guidance from the Attorney General.

each amendment, revision, alterations or addition to be submitted to the citizens.” Muscogee

(Creek) Nation Constitution.

Petitioners Trepp and Does 1-10 cannot be said to be personally injured by the actions of

the Commission when the language is clear on its face that the Commission has the power to

“prepare wording.”

The Constitutional Convention Commission sought the advice of the

Nation’s Attorney General to help ensure constitutionally sound language.

As our precedent

establishes:

When a governmental entity is responsible for initiating, editing, processing,

changing and reviewing a process assigned to it under the Constitution, it is the

Court’s opinion this entity is the ultimate authority for the process.

Ellis vs. Muscogee (Creek) Nation National Council, “Ellis ii”, SC 06-07 (Muscogee (Creek)

2007)

Mvs.L.Rep.

_____.

The duty of this Court, we have said, is to not merely give

definition to words within the law but to determine the intent and scope behind the words and

where the plain language is clear, we must not place a different meaning on the words. See,

Oliver v. Muscogee (Creek) National Council, SC 06-04 (Muscogee (Creek) 2006)

Mvs.L.Rep.

;

Cox v. Kainp, 5 OkIa. Trib. 530 (Muscogee (Creek) 1991)

Mvs.L.Rep.

There are no allegations set forth to show how Trepp or Does 1-10 were personally

injured, or could be personally injured, by the Constitutional Convention Commission that was

empowered by Creek Nation law to develop these amendments which were subsequently put to a

vote of the people.

Petitioners’ claimed injuries, if they are in fact “injuries”, are no more

injurious to Trepp or Does 1-10 than any other citizen of this Nation. As stated, Petitioners

Trepp and Does 1-10 have no standing merely as citizens. Petitioners Trepp and Does 1-10 have

failed to show a personal injury with a casual connection to the actions of the Constitutional

Convention Commission or the subsequent Approved Amendments. Petitioner Trepp and Does

1-10 therefore lack standing.

C. Laches and Due Process

The Doctrine of Estoppel by Laches Applies to Petitioner Trepp.

In addition to the Petitioners’ lack of standing, this case may be dismissed as applicable

to Petitioner Trepp based on the doctrine of laches.

Prior to the Special Election, the

Constitutional Convention Commission had the duty and authority to determine the language of

amendments to be included on the Special Election Ballot.

The doctrine of estoppel by laches precludes a party from bringing an action when the

party knowingly failed to claim or enforce a legal right at the proper time. As the United States

Supreme Court has said, “A right may be waived or lost by failure to assert it at a proper time.”

See, Atlantic Coast Line Railroad v. Burnette, 239 U.S. 199, 36 Sup. Ct. 75, 60 L. Ed. 226

(1915). The U.S. Supreme Court further enunciated in Northern Pacific Railway Co. v. Boyd,

228 U.S. 482, 509, (1912) the doctrine of estoppel by laches is not one which can be measured

out in days and months, as though it were a statute of limitations. The United States Supreme

Court stated that “what might be inexcusable delay in one case would not be inconsistent with

diligence in another, and, unless the non-action of the complainant operated to damage the

defendant or to induce it to change its position, there is no necessary estoppel arising from the

mere lapse of time.” Id. at 509. Indeed, in election cases, laches often applies to delays of mere

days.28

Petitioner Trepp’s time began when he was a citizen who participated in the

Constitutional Convention in its voting on the proposed amendments. If Petitioner Trepp was

28 No challenge has ever been brought regarding the voting results of the Special Election. Therefore, in dismissing

the procedural challenges this election, we necessarily hold that the Approved Amendments have been validly

adopted. The interpretation of such Amendments is a separate issue.

concerned about the actions of the Commission, he had adequate time and procedural safeguards

in which to redress his grievances. For example, Petitioner could have pursued an action through

any subsections of the Article IX § 2 of the Creek Nation Constitution or could have brought a

claim to this Court questioning alleged arbitrary actions or scope of the Commission’s powers

being in consistent with this Court’s Begley opinion.

Further, Petitioner was given opportunity to be heard and was heard through his

participation in the Constitutional Convention held on November 7-8, 2008.

Declaration at Para.5-6.

See, Trepp

Article IX § 2 gave Petitioner no right or claim to have specific

wording that he specifically or his fellow Petitioners chose to be on the ballot of November 7,

2009. The Muscogee people as a whole helped make those decisions which Petitioner Trepp

participated in. It was then the obligation of the Constitutional Commission and the Election

Board of this Nation to finalize the ballot wording. See, Article IX, §2 (c )29• Petitioner cannot

now argue his rights are violated after over a year had passed from the time Petitioner actively

participated in the Constitutional Convention in November of 2008 and a vote of the Nation’s

people commenced on November 7, 2009. Any issues Petitioners had with any amendments

could have been and should have been raised as part of this Nation’s process in adopting them.

Procedural Due Process Has Been Met.

First we must note that if a party lacks standing to bring suit, any analysis from that point

forward, including procedural due process claims, is irrelevant. However, to address Petitioners

concerns regarding due process violations, this Court will briefly discuss how, notwithstanding

Petitioners’ lack of standing, procedural due process has been met with respect to Petitioners.

29 “...The Commission shall conduct public hearings throughout the Nation to accept citizen views on constitutional

amendments, revisions, alterations or additions and shall prepare a public report of all proposed amendments.

revisions, alterations and additions. The Constitutional Convention Commission shall then work with the Election

Board to prepare wordinc for separate ballots for each amendment, revision, alterations or addition to be submitted

to the citizens.

.“ Emphasis added.

Of the necessary elements to a assert a successful procedural due process claim, the

petitioner must establish a sufficient liberty or property interest of which he is being deprived

without due process of law.

protected right.

These interests must be more than a privilege; they must be a

Neither Petitioner Trepp nor Petitioner National Council has even alleged such

a sufficient property or liberty interest.

First, Petitioner Trepp, as one of numerous participants in the Constitutional Convention

process, had no specific right to have his preferred wording articulated on the Special Election’s

final ballot. Instead, Petitioner Trepp claims some vague interest as a participant, and only a

participant, that the Commission transmit word-for-word the language addressed in the

Convention. We find this position untenable, especially given the Commission’s duty to work

with the Election Board to prepare the wording of proposed amendments. See, Begley, supra

(Commission within its authority in preparing proposed amendment language). Additionally, as

noted herein regarding laches, Petitioner Trepp had available to him other opportunities to raise

his claims, including the democratic process.3°

Therefore, without a sufficient interest,

amounting to a right protected by procedural due process, Petitioner Trepp fails to establish any

procedural due process violation.

Similarly, Petitioner National Council has failed to show any deprivation of any due

process rights. The National Council fails to show a legitimate liberty or property interest in any

of the procedures leading to the Approved Amendments. National Council’s concerns that the

makeup of the Council will be “impacted” by the Amendments does not amount to a such a

legitimate interest. The Council operates under a delegation of authority from the people and can

30 Additionally, Petitioner Trepp, like any citizen, had available to him the opportunity to express his concerns that

the Convention participants’ intent was not adequately reflected in the Amendments by voicing such concerns in the

political arena. Certainly, the general public did not agree with his concerns when they voted to approve 11 of the

12 proposed amendments.

have no protected right in forestalling the people’s decision to adjust the scope of that

delegation.31 As such, all procedural due process claims by both Petitioners would fail, even if

standing were not an issue in this case.

Finally, this Nation’s democratic process provided all Mvskokvlke with the most

fundamental procedural safeguard. All Mvskokvlke had the opportunity to voice opposition to

any and all of the Approved Amendments in the public arena prior to the Special Election.

Certainly, wide-ranging viewpoints were discussed and debated during this period. By their

collective voice on November 7, 2009, the Mvskoke people ruled on these positions.

All

objections to the 11 Approved Amendments were effectively overruled.

Alleged Contradictory Nature of Amendments.

Although not characterized in Petitioners’ filings, Petitioners’ claims that the Approved

Amendments contain contradictions among themselves and with existing Constitutional

language presumably are meant to raise substantive due process claim. However, substantive

due process involves review of a government action.

Unlike legislative acts, the underline

constitutional amendments at issue here were approved by the people, and not the government.

Therefore, standard substantive due process analysis regarding government action is

inappropriate. The interpretation of how the Approved Amendments will be harmonized with

each other and with existing Constitutional provisions is a matter of constitutional interpretation

not at issue in this case. As such, this Court finds no plausible substantive due process issue.

IV. CONCLUSION

Since time immemorial the people have ruled the Muscogee (Creek) Nation.

The

Preamble to the Muscogee (Creek) Constitution states “We the People.” The citizens of the

As previously stated, Petitioners objections notwithstanding, the Approved Amendments were voted upon by the

citizenry.

Muscogee (Creek) Nation are the final authority to act on behalf of this Nation. Even in early

times, the Muscogee people have ruled themselves following customary traditional law, and

historically, the people were the sovereign power of the Mvskokvlke and the Muscogee (Creek)

Nation Confederacy. It is true now that the Mvskoke people have once again spoken by enacting

Amendments to our Nation’s Constitution by a Special Election.

The Muscogee (Creek)

citizenry have spoken, they are the sovereign power of the Muscogee (Creek) Nation, and their

vote must be respected.

Neither the Supreme Court nor any other branch of this Nation’s

government can overrule the will of the Mvskoke people. The Nation’s citizenry had ample

opportunity to debate through not only the Constitutional Convention but various Town Hall

Meetings and public discourse. They approved amendments with their vote on November 7,

2009.

This Court has held in the past that: ‘Under traditional Mvskoke law, controversies were

resolved by clan Vculvkvlke (elders). Their integrity was considered beyond reproach. They

were obligated by the responsibilities of their position to decide cases fairly, and honestly,

regardless of clan or family affiliation.” In Re: The Practice of Law Before the courts of the

Muscogee (Creek) Nation, (Muscogee (Creek) 2005). 4 Mvs.L.Rep 250, 252. We have also

held more recently that: For our tribal society to function properly, we must honor and respect

the respective roles of others. Our Constitution is based on our societal values, as a people, and

that interconnectedness lays out the separate powers and duties of the various branches of

government.

Ellis vs. Muscogee (Creek) Nation National council, “Ellis II”, SC 06-07

(Muscogee (Creek) 2007) ~Mvs.L.Rep..

As discussed in this Opinion, all of Petitioners’ challenges to the process by which the

Approved Amendments were adopted are dismissed. Accordingly, the Approved Amendments

are deemed duly adopted amendments to the Constitution. The interpretation of the language of

the approved Amendments, however, is not before this Court.

It is therefore the Order of this Court that our Original Opinion of December 21, 2009 be

VACATED and we assume original jurisdiction over this matter. We further HOLD:

1.)

This Court is the proper Court for the exercise of original jurisdiction of this

Constitutional challenge;

2.)

Petitioners do not have standing to bring this case before the Supreme Court of

this Nation, or any Court of this Nation;

3.)

Petitioners’ prayer for injunctive relief and an evidentiary hearing are hereby

DENIED;

4.)

Petitioners’ claims are DISMISSED WITH PREJUDICE;

5.)

The process by which all Amendments submitted to and voted upon by the

Mvskoke people in the Special Election as challenged by Petitioners is upheld;

and

6.)

The Approved Amendments are deemed duly-adopted amendments to this

Nation’s Constitution.

IT IS SO ORDERED.

~ ~L/L

Jonodev 0. Chaudhuri, Chief Justice

Houston Shirley, Vice Chief Justice

Amos McNac, Associate Justice

IN THE SUPREME COURT OF THE MIJSCOGEE (CREEK) NATION

MUSCOGEE (CREEK) NATION

NATIONAL COUNCIL,

and

ROBERT TREPP, an individual Muscogee

(Creek) tribal citizen, and DOES 1-10,

Inclusive,

Petitioners,

MUSCOGEE (CREEK) ELECTION

BOARD, A.D. ELLIS, in his capacity as

Principal Chief of the Muscogee (Creek)

Nation, and MUSCOGEE (CREEK)

CONSTITUTIONAL CONVENTION

COMMISSION,

Respondents.

)

CASE NO. 2009-10

CERTIFICATE OF MAILING/DELIVERY

I, Connie Dearman, Deputy Court Clerk for the Supreme Court of the Muscogee (Creek)

Nation, do hereby certify that on this 3” day of December, 2010, that I faxed and mailed a true

and correct copy of the foregoing Supreme Court’s Opinion with proper postage prepaid to the

following:

Muscogee (Creek) Nation Election Board

Nettie Harjo, Manager

P. 0. Box580

Okmulgee, OK 74447

Muscogee (Creek) Nation

Attorney General

P. O.Box580

Okmulgee, OK 74447

Muscogee (Creek) Nation

Constitution Convention Commission

do Judge Patrick Moore

P. 0. Box 652

Okmulgee, OK 74447

Timothy Posey

Hall, Estill, et al.

320 S. Boston Ave., Ste. 400

Tulsa, OK 74103

Page 1 of2

Stacy L. Leeds

Leeds Legal Counsel and Consulting

11177 Hwy 10

Tahlequah, Ok 74464

Zeke Fletcher

Rosette & Associates, P.C.

112 East Allegan Street, Suite 600

Lansing, Michigan 48933

Yonne Tiger

Muscogee (Creek) National Council

In-House Attorney

P. 0. Box 158

Okmulgee, OK 74447

Rod Weimer

114 N. Grand

Okmulgee, OK 74447

Connie Dearman, Deputy Court Clerk

Page 2 of 2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.