# IN THE MUSCOGEE (CREEK) NATION SUPREME COURT

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URL: https://www.frixlaw.com/law-library/documents/tribal%3Amuscogee_creek_nation%3Ac6ebffd527cdd88f

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

IN THE MUSCOGEE (CREEK) NATION SUPREME COURT
MUSCOGEE (CREEK) NATION
NATIONAL COUNCTh,

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SUPREME COURT

and

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E~ 0

ROBERT TREPP, an individual Muscogee
(Creek) tribal citizen, and DOES 1-10,
Inclusive,

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Petitioners,
v.
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.

FiLW

2t)1O~,

<0SA~’JNP~ U FACTOR COURT CLER<
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.

I.

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

2

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.”

In

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

2

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.
4

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

6

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).
5

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.

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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).

To

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.
7

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

1.

—

—

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.
8

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.
2.

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.
9

outweigh the benefits of lower court review.

a.

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..
10

litigants.
The preceding concerns establish sufficient important public policy considerations to
merit weighing original jurisdiction with the benefits of lower court review.
b.

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.
11

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.

1.

National Council Does Not Have Standing.
a.

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

12

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

2!

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.
13

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.
b.

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.
14

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

15

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.

2.

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.
16

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

.

.

.

.

.“

.

to
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.
17

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

18

Convention Commission or the subsequent Approved Amendments. Petitioner Trepp and Does
1-10 therefore lack standing.

C. Laches and Due Process
1.

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.
19

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.

2.

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.
20

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.
21

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.

3.

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

31

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

citizenry.
22

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

23

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

24

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,
v.
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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Amuscogee_creek_nation%3Ac6ebffd527cdd88f. Public record. Not legal advice.