IN THE MUSCOGEE (CREEK) NATION SUPREME COURT

IN THE MUSCOGEE (CREEK) NATION SUPREME COURT

SUPREME COURT

A.D. ELLIS, in his official capacity as

Principal Chief of the Muscogee (Creek)

Nation,

Plaintiff-Appellee,

v.

CHECOTAH MUSCOGEE CREEK

INDIAN COMMUNITY, et a!.

Defendants-Appellants.

FILED

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MAY 222013

COURT

Case No. SC-b-Ui

MUSCOGEE (CREEK) NA

(District Court Case No. CV 2009-33)

OPINION AND ORDER DENYING MOTION TO VACATE

Before: LERBLANCE, Ci; ADAMS, VC.J.; HARJO-WARE, SUPERNAW, DEER, and

THOMPSON, JJ.

PER CURIAM.

DEER, J., concurring specially as to Part II.

HARJO-WARE, I, concurring specially as to Part I, dissenting as to Part II, and dissenting

in judgment.

Defendant-Appellants Checotah, Duck Creek and Okemah Indian Communities (Appellants)

move to have us vacate the Opinion and Order previously filed in this matter.

Based on our

conclusion that M(C)NCA Title 27, § 3-101, requires Supreme Court decisions to be delivered by

the simple majority of a participating quorum, we must deny Appellants’ motions to vacate.

BACKGROUND

On July 20, 2011, this Court delivered its Opinion and Order (Order) in the above-captioned

matter. The Order upheld a District Court grant of permanent injunctive relief in favor of Plaintiff-

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Opinion and Order, filed May 22,2013

A

Appellee.

Six justices were properly seated as of July 20, 2011; however, only five justices

participated in the decision.1 The Order was delivered by a three-justice majority. A fourth justice

filed a separate opinion which partially concurred with the majority on a narrow finding of fact, but

dissented on affirming the District Court’s conclusions of law. A fifth justice issued a separate,

dissenting opinion.

Appellants assert that the Order lacks lawful force and effect because it was filed pursuant to

two errors: (1) under M(C)NCA Title 27, § 3-101, an insufficient number of justices joined in the

Order’s majority opinion; and (2) two of the three justices who joined the Order’s majority opinion

were ineligible and lacked judicial authority because their appointed terms on the Court had expired

prior to July 20, 2011. In response, Plaintiff-Appellee expressly declines to endorse the briefs filed

by the previous administration and agrees with Appellants’ first assertion of error under Title 27, §

3~101.2 Plaintiff-Appellee’s response does not address Appellants’ second assertion of error.

JURISDICTION, SCOPE AND STANDARD OF REVIEW

Jurisdiction is proper under M(C)NCA Title 27, § 1-101.C.3 Although Appellants’ motions

are captioned as motions to vacate, the filings are essentially petitions for rehearing and will be

treated as such under M(C)NCA Title 27, App. 2, Rule 24.B.2.4 Our review is limited solely to the

‘Justice Montie Deer did not participate.

five months after the Supreme Court’s Order dated July 20, 2011, was filed and the instant appeal

2 Approximately

seemingly closed, A.D. Ellis’ second term as Principal Chief ended. On November 5, 2011, the Nation’s citizens

elected George Tiger to the office of Principal Chief of the Muscogee (Creek) Nation. Chief Tiger’s term as Principal

Chief began in January 2012.

Appellants’ motions to vacate, viewed as petitions for rehearing, were untimely filed under Title 27, App. 2, Rule

24.A; however, this Court’s authority to impose penalties for party non-compliance with the appellate rules under Rule

20.C. is permissive rather than mandatory. Party non-compliance with the appellate rules has no effect on this Court’s

jurisdiction. Additionally, we decline to dismiss Appellants’ motions as untimely due to the nature of the procedural

errors asserted by the Appellants and in order to resolve purported confusion regarding the lawful effect of this Court’s

Order dated July 20, 2011.

~ M(C)NCA Title 27, App. 2, Rule 24.B.2 (“A petition for rehearing may be presented [if the Court’s] decision is in

conflict with an express statute or controlling decision to which the attention of the Court was not directed.”).

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procedural errors alleged and does not include reconsideration of the underlying substantive issues

resolved by the July 20, 2011, Order.

Appellants’ motions present questions of law which we

review de novo.5

ISSUES PRESENTED

Part I. Under M(C)NCA Title 27, § 3-10 1, does a decision delivered by a three-justice

majority carry the force of law when less than six justices are available to participate in the

decision?

Part II.

When the Order was filed on July 20, 2011, did Muscogee (Creek) Nation law

operate to remove judicial authority from multiple members of the Supreme Court, rendering them

unqualified to participate in the decision?

DISCUSSION

It is well settled in modern Mvskoke jurisprudence that our Constitution establishes a

separation of authority between the three branches of our Nation’s government.6 It is also well

settled that Article VII vests this Court with the Nation’s judicial power,7 including, inter alia, the

power ofjudicial review,8 and the authority to establish procedures which provide due process.9

See Fife v. M(C)N Health Systems Board, et al., 4 Mvs. L. R. 149 (July 21, 1995); In the Matter ofAdoption ofR.A. W,

4 Mvs. L. R. 194 (October 5, 1999); Preferred Management Corporation v. National Council of the Muscogee (Creek)

Nation, 4 Mvs. L. R. 55 (May 2, 1990). See also Oliver v. M(C)N National Council, 4 Mvs. L. R. 281 (September 22,

2006); Alexander v. Gouge & Huffi, 4 Mvs. L. R. 225 (January 16, 2003).

6 Beaver v. National Council, 4 Mvs. L. R. 19, 23 (January 18, 1985); Cox v. Childers, 4 Mvs. L. R. 71, 74 (June 19,

1991); Cox v. Kamp, 4 Mvs. L. R. 75, 79 (June 27, 1991); Oliver v. National Council, 4 Mvs. L. R. 281, 291 (September

22, 2006); Ellis v. National Council, 4 Mvs. L. R. 305, 308 (July 12, 2007).

M(C)NCA Const. Art. VII, § I (“The judicial power of the Muscogee (Creek) Nation shall be vested in one Supreme

Court limited to matters of the Muscogee (Creek) Nation’s jurisdiction and in such inferior courts as the National

Council may from time to time ordain.”). Article III, Sect. 1, of the 1867 Muscogee (Creek) Nation Constitution

referred to this authority as the “supreme law defining power.” Constitution and Laws of the Muscogee (Creek) Nation

5 (Scholarly Resources, Inc. 1975).

8 Beaver v. National Council, 4 Mvs. L. R. 19, 23 (January 18, 1985); Cox v. Kamp, 4 Mvs. L. R. 75, 79 (June 27,

1991); Oliver v. National Council, 4 Mvs. L. R. 281, 291 (September 22, 2006); Ellis v. National Council, 4 Mvs. L. R.

305, 308 (July 12, 2007).

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Opinion and Order, filed May 22, 2013

A. Judicial Review and Statutory Construction

When properly called upon to exercise judicial review, we look first to whether the text of

the statutory provision in question has plain meaning. If the words are unambiguous, we presume

the National Council intended that meaning and apply the statute according to its terms.10 Use of

the “plain-meaning rule” is both an appropriate judicial deference to the National Council’s law

making authority and an analytical hurdle which limits unnecessary judicial encroachment into the

law-making function.

If, however, statutory text at issue is determined to be ambiguous, this

Court’s constitutional mandate is to resolve the ambiguity.11

Ambiguity may appear as a

contradictory arrangement of text on the face of a statute, or it may be created by statutory language

that is seemingly clear on its face, but ambiguous as to its application in various contexts.12 If a

statute lacks plain meaning, we seek to determine the National Council’s intent and desired effect

behind the legislation by considering any available legislative history.

If available legislative

history is insufficient or fails to be completely instructive regarding legislative intent, any remaining

ambiguity is resolved by way of canons of statutory construction.13

B. Procedural Due Process

Article VII, Sect. 3, of the Nation’s Constitution requires the Supreme Court to “establish

procedures which [e]nsure that the appellant receives due process of law and prompt and speedy

~ M(C)NCA Const. Art. VII, § 3 (“The Supreme Court shall, with the approval of the Muscogee (Creek) National

Council[,j establish procedures to insure that the appellant receives due process of law and prompt and speedy relief.”);

Title 27, § 3-108 (as amended by NCA 10-190, enacted by veto-override on November 22, 2010) (“The Supreme Court

shall establish procedures for all cases and other matters before the Supreme Court.”). See also Title 27, § 1-106 (as

amended by NCA 10-190).

‘° See Cox v. Kamp, 4 Mvs. L. R. 75, 79 (June 27, 1991).

See Cox v. Kamp, 4 Mvs. L. R. at 79 (June 27, 1991); Courtwright v. July, et al., 4 Mvs. L. R. 105, 112 (June 28,

1993).

12 See Cox v. Kamp, 4 Mvs. L. R. at 79 (June 27, 1991 ) (“The duty of this Court is not to merely give definition to

words within the law but it is foruse, as a group, to determine the intent and scope behind the words.”).

13 See Foster v. Indian Country USA, et al., 4 Mvs. L. R. 35, 37 (May 1, 1987); Oliver v. National Council, 4 Mvs. L. R.

281, 297 (September 22, 2006).

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Opinion and Order, filed May 22,2013

relief.” Traditional Mvskoke ideals ofjustice and fairness have historically embodied the principles

of due process.14 In keeping with that tradition, modern Mvskoke jurisprudence evaluates questions

of sufficiency of procedural due process in court proceedings by balancing three factual elements:

(1) the strength and nature of the private interest involved; (2) the risk of an erroneous outcome if

additional procedure isn’t afforded; and (3) the Nation’s interest in proceeding with no more

process than already afforded.15

The appellate rules also provide an additional due process

protection by requiring the rules to be “liberally construed

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to [e]nsure that the appellant receives

due process of law[.J”6

C. Impact of Vacancies and Recusals

A review of Supreme Court decisions delivered since the Court’s first modern era opinion

was filed in 1985 reveals a historical reality: The Muscogee (Creek~ Nation Supreme Court is

required to decide most cases with fewer than six justices. Prior to the instant appeal being filed,

this Court delivered sixty-seven substantive decisions.

Only nineteen opinions (28%) were

delivered by a six-justice Court. Forty-eight of the sixty-seven opinions (72%) were delivered by

either four or five justices. Although the Constitution specifies the Court “shall be composed of six

(6) members appointed by the Principal Chief, subject to majority approval by the

.

.

.

National

Council”,’7 vacancies and recusals routinely prevent a full constitutional compliment of six justices

from participating in most decisions.

‘~ Beaver,

et at. v. Okmulgee Indian Community, 4 Mvs. L. R. 183, 185 (September 1, 1999); and Ellis v. National

Council, 4 Mvs. L. R. 322, 344 (August 30, 2007).

~ In the Matter of R.F. & IF, 4 Mvs. L. R. 198, 202 (January 8, 2000); Oliver v. National Council, 4 Mvs. L. R. 281,

297 (September 22, 2006); and Beaver, et al. v. Okmulgee Indian Community, 4 Mvs. L. R. 183, 184 (September 1,

1999).

16 M(C)NCA Title 27, Appendix 2, Rule i.E. (although amended by NCA 10-190 via veto-override on November 22,

2010, NCA 10-190 was subsequently repealed by NCA 12-126 on July 5, 2012).

‘~ M(C)NCA Const. Art. VII, § 2.

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Opinion and Order, filed May 22,2013

Vacancies occur when a duly qualified successor is not nominated and confirmed prior to

the departure of a seated member of the Court. Although vacancy may occur suddenly due to

exigent or unforeseen circumstances, such instances are exceedingly rare. Typically, members of

the Court serve a six-year term, so succession planning is largely predictable. A lengthy lapse in

time between the departure of one Court member and the arrival of a duly qualified successor does,

however, decrease the number of justices available to participate in deliberation and, in some

circumstances, may interfere with the Court’s ability to establish a quorum.

Voluntary judicial recusals, while serving an essential function in maintaining public

confidence in the integrity and independence of the judicial branch, also regularly subtract from the

total number of justices available to decide a case.

If a Supreme Court justice individually

determines that a proceeding involves parties or subject matter which would reasonably bring his or

her impartiality into question, the justice is required to recuse from participation in that

proceeding.’8

Rule 3 of the Judicial Code of Ethics identifies over twenty-five individual

conditions which require recusal once a justice determines that any one or more of the conditions

are personally or professionally applicable.’9 Unlike vacancies, periodic recusals by members of

18 NCA

12-033, §4-103.E.1 (April 10, 2012) (repealing Title 26 in its entirety and creating a new Title 26 establishing

the District Trial Court Civil, Criminal, and Family Divisions) (as amended by NCA 12-128 (August 9, 2012)).

‘~ Id. at §4-103.E., Disqualification.

1.

A judge shall disqualif~’ himself or herself in a proceeding in which the judge’s impartiality might

reasonably be questioned, including but not limited to instances where:

a. the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or first-hand

knowledge of disputed evidentiary facts concerning the proceeding;

b. the judge served as a lawyer, advocate, or personal representative in the matter before the Court

or a person with whom the Judge has been associated in a professional capacity served as a

lawyer, advocate or personal representative concerning the matter;

c. the judge knows that the judge, individually or as a fiduciary, or the judge’s extended family,

wherever residing, or any other person residing in the judge’s household has a financial interest in

the subject matter in controversy, is a party to the proceeding or has any other interest that could

be substantially affected by the outcome of the proceeding;

d. the judge, the judge’s spouse, or the judge’s extended family, wherever residing, or any other

person residing in the judge’s household:

i. is a party to the proceeding, or an officer, director or trustee of a party;

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the Supreme Court are required, necessary and unavoidable. When viewed together, the collective

impact of vacancies and recusals on the Supreme Court’s ability to deliver decisions is abundantly

clear. Almost three-quarters of all Muscogee (Creek) Nation Supreme Court decisions are delivered

by less than six justices.

Such an impact must necessarily be considered in our analysis of

Appellants’ claims.

D. Analysis

Part!

Appellants’ first assert that an insufficient number of justices joined in the Order’s threejustice majority opinion because under Title 27, § 3-101, “[a] judgment or decision of the Supreme

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

Appellants’ first assertion would

seemingly have us find plain meaning by reading § 3-10 l’s four-justice requirement in isolation

from the other provisions of § 3-10 1 and the other eight sections within Title 27, Chapter 3. Rather

than discover plain meaning by excluding the statutory text surrounding § 3-101’s requirement for a

four-justice agreement, we find the text and structure of Title 27, Chapter 3, requires § 3-10 1 and §

3-103 to be read together. Each section, individually, clearly establishes a minimum number of

justices necessary for certain Supreme Court actions.

The collective effect of both sections

ii.

iii.

is acting as a lawyer in the proceeding;

is known by the judge to have a more than de minimis interest that could be substantially

affected by the proceeding; or

iv. is to the judge’s knowledge, likely to be a material witness in the proceeding.

e. the judge, while a judge, has made a public statement that commits, or appears to commit, the

judge with respect to:

i. an issue in the proceeding; or

ii. the controversy in the proceeding.

2. A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make

reasonable efforts to keep informed about the personal economic interests of the judge’s extended family,

wherever residing.

NCA 12-033 (April 10, 2012) (repealing Title 26 in its entirety and creating a new Title 26 establishing the District

Trial Court Civil, Criminal, and Family Divisions) (as amended by NCA 12-128 (August 9, 2012)).

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Opinion and Order, filed May 22,2013

together, however, potentially affects the Court’s ability to exercise the Nation’s judicial power and

perform its constitutionally mandated function.

It is clear that Title 27, § 3-103 creates a quorum requirement because it specifies that four

qualified justices must be available to participate before the Court can properly hear any action or

appeal (the quorum rule). It is also clear that Title 27, § 3-101 requires four justices to agree at the

conclusion of proceedings (the four-in-agreement rule).

When both sections are read together,

however, and in light of the historical reality that most Supreme Court cases are decided by only

four or five justices, it is contextually ambiguous whether § 3-10 l’s four-in-agreement rule was

intended to apply when less than six justices are available to participate in rendering a decision.2°

To resolve the contextual ambiguity created by § 3-101 and § 3-103, we turn to the legislative

history of both provisions in an effort to preserve the National Council’s intent behind enacting each

section.

The legislative history of Title 27, Chapter 3, prior to 1999, clearly reveals that a simple

majority of participating justices could deliver a Supreme Court decision after a quorum was

established. The first modem judicial code, adopted in 1982, recognized the use of a four-justice

panel to hear both civil and criminal appeals, as well as habeas corpus petitions. The 1982 Judicial

Code’s chapter on court procedures provided that “{t]he Chief Justice shall

.

.

.

appoint four justices

to hear the case{,]”21 and “[t]here must be at least four (4) Justices sitting together as a body to hear

any case appealed, including writs of [h]abeas [c]orpus.”22 For civil appeals, the Code lacked any

express requirement for a minimum number of judicial votes sufficient for a Supreme Court

decision. In a curious and direct contradiction to the four-justice panel procedure, however, the

20

M(C)NCA Const. Art. VII, § 2 (“[tjhe Supreme Court shall be composed of six (6) members appointed by the

Principal Chief, subject to majority approval by the Muscogee (Creek) National Council. . . [.1”).

21 NCA 82-30, § 259 (Sept. 13, 1982) (adopting the Judicial Code of 1982).

221d. at § 202.

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Code expressly allowed for less than four justices to hear and decide criminal appeals and habeas

petitions.

The Code’s chapter on criminal appeal procedure required that, for habeas petitions, “[t]hree

justices must sit at the hearing.

.

.

[.]“~~

To render a decision in criminal appeals, the Code further

specified that

[t]here must be at least a majority of the Justices sitting on any

appeals case who agree on a decision of the court before such

decision become final. If five Justices sit on a case, at least three (3)

must concur to make a final decision; if four Justices sit on a case, at

least three (3) must concur to make a final decision; if three Justices

sit on a case, at least two (2) must concur to make a final decision.24

A review of Muscogee (Creek) Nation Supreme Court decisions filed from January 1985 through

June 1999 reveals, however, these statutory contradictions had no impact on the Court’s ability to

function.25

Notwithstanding the statutory contradictions, it is abundantly clear that the 1982

Judicial Code sought to establish a quorum: some minimum number of available, qualified justices

sufficient to begin hearing a case, but some number less than a full, six-member Court. It is also

clear that, once a quorum was established under the 1982 Judicial Code, a simple majority of the

participating, qualified justices was sufficient to deliver a decision.26

§ 267.B.

§ 261 (emphasis added). Although the last provision of this section seemingly contradicts the requirement for a

four-justice quorum created in § 202, we note the requirement for a mere simple majority remained consistent even

23 Id. at

24 Id. at

within the contradiction.

25 Forty-three substantive decisions were issued from January 1985 through June 1999.

All forty-three decisions

involved only civil appeals, so the contradiction between the Code’s four-justice panel for “any” appeal or petition and

the three-justice panel seemingly allowed for criminal appeals and habeas petitions never became problematic. Review

of the same forty-three decisions also indicates that, rather than use a four-justice panel, all available, qualified justices

on the Court would hear, deliberate and decide the case. Of the forty-three decisions reviewed, ten were decided by a

six-justice panel, twenty-six were decided by a five-justice panel, and seven were decided by a four-justice panel.

Forty-one of the forty-three decisions were unanimous and two were decided 4-1.

26 Although the 1982 Judicial Code lacked any express requirement for a minimum number of judicial votes in civil

appeals, we conclude the inherent differences in the nature of the civil and criminal appeals makes it exceedingly

improbable that NCA 82-30 was intended to create a more stringent standard for delivery of decisions in civil appeals

than in criminal appeals or habeas petitions. It is more probable that either; (1) a simple majority requirement was

intended to apply to both types of appeals, or (2) due to the nature of criminal appeals and an appellant’s potential loss

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Opinion and Order, filed May 22,2013

In 1999, NCA 99-85 added the four-in-agreement rule by requiring “[a] judgment or

decision of the Supreme Court [to have] the approval of a minimum of fourjustices.”27 Although it

seemingly imposed a new requirement in addition to the quorum rule, NCA 99-85 failed to correct

the contradictions within the 1982 Judicial Code. In 2001, NCA 01~8828 removed from Title 27 all

provisions related to judicial voting procedures except § 3-101’s four-in-agreement rule, and § 3103’s quorum rule.29 Ultimately, the legislative history presents two possible interpretations by

which to resolve the contextual ambiguity created by § 3-10 1 and § 3-103. First, § 3-10 l’s four-inagreement rule may be interpreted to be independent from § 3-103’s quorum rule and applicable

without regard to the number of qualified, participating justices. Alternatively, § 3-101 may be read

to require only a simple majority to render a decision because the four-in-agreement rule, when read

in conjunction with § 3-103’s quorum rule, includes an inherent presumption of six qualified,

participating justices.

We find that due process considerations and the canon of constitutional

avoidance require us to conclude the latter interpretation and resulting construction are proper.3°

The first possible interpretation resolves the contextual ambiguity by reading the four-inagreement rule as separate and unrelated to the quorum rule. The resulting construction and legal

effect is problematic; however, as this interpretation of § 3-10 1 necessarily creates an increased

burden of persuasion for any party seeking relief before the Court when less than six justices are

of liberty and/or property, criminal appeals must necessarily involve additional requirements as compared to civil

appeals. We find it more likely that the drafters viewed a simple majority requirement as a default rule and intended it

to apply to both types of appeals within Title Two of NCA 82-30. Additionally, the contradictory provision at § 261

which allowed a three-justice quorum and a two-justice simple majority especially supports the conclusion that NCA

82-30 was drafted to require only a simple majority of a quorum for Supreme Court decisions.

27 NCA 99-85, § 103 (July 1, 1999).

28 NCA 01-88 (May 24, 2001) (amending §~ 206-208, 25 1-291 of NCA 82-30).

29 The instant appeal was initially filed on April 5, 2010. As of that date, the Supreme Court continued to be unimpaired

by statutory ambiguities related to judicial voting. Twenty-four substantive decisions were issued from July 1999

through March 2010. Nine decisions were made by a six-justice panel with six decisions made unanimously and three

decided by a 5-1 vote. Eight decisions were issued by five-justice panel with six decisions made unanimously and two

decided by a 4-1 vote. Seven decisions were issued by a unanimous four-justice panel.

30 See infra note 34.

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available to participate in the decision. Such an additional burden is suspect, as it is influenced

solely by external factors unrelated to the merits of an appeal. Under this interpretation, a party

appearing before all six justices needs only to persuade a simple majority of the Court to win on

appeal. If, however, the same party seeks identical relief when one Court seat remains vacant or

when one justice determines that recusal is proper under one of the many conditions sufficient to

warrant disqualification under Rule 3 of the Judicial Code of Ethics,3’ that party would be required

to secure a supermajority of the Court for a successful appeal. The four-in-agreement rule, under

this interpretation, would be most unforgiving to the unfortunate party required to secure a

unanimous Court due to multiple vacant seats or multiple recusals.

No comparative balancing of private interests and interests of the Nation is necessary to

determine whether the first interpretation of the four-in-agreement rule sufficiently protects an

appellant’s right to due process. The first interpretation results in a construction that, at its core, is

fundamentally counter to the principle that due process includes the right to an impartial tribunal.32

Although individual Court members’ impartiality would remain unaffected by this interpretation,

the four-in-agreement rule, as applied here, erodes the impartiality of the Court sitting as a body.

The inverse correlation between burden of persuasion and number of participating justices created

31 See supra note

32 M(C)NCA

19.

Const. Art. VII, § 3. In Re: the Practice of Law Before the Courts of the Muscogee (Creek) Nation, 4

Mvs. L. R. 249, 252 (February 14, 2005) (“The responsibility to perform judicial duties with impartiality extends to all

cases and all persons before the Mvskoke Courts . . . [t]his is true under both [t]raditional Mvskoke law and under the

Code of Conduct for Judges.”); Ellis v. National Council, 4 Mvs. L. R. 305, 310 (July 12, 2007) (“Indian tribes were

not made subject to the Bill of Rights. However, the laws of the Muscogee Nation are subject to the limitation imposed

upon the tribal governments by the Indian Civil Rights Act . . . [.]“). See also 25 U.S.C. § 1302(a)(8) (2010) (“No

Indian tribe in exercising powers of self-government shall . . . deny to any person within its jurisdiction the equal

protection of its laws or deprive any person of liberty or property without due process.”); and Marshall v. Jerrico, Inc.,

446 U.S. 238, 242 (1980) (“[Due process] entitles a person to an impartial and disinterested tribunal in both civil and

criminal cases. The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis

of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and

reality of fairness by ensuring that . . . no person will be deprived of his interests in the absence of a proceeding in

which he may present his case with assurance that the arbiter is not predisposed to find against him.”) (internal citations

omitted).

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Opinion and Order, filed May 22,2013

under this reading of the four-in-agreement rule is constitutionally suspect and lacks sufficient due

process protections.33 We need not reach the question of whether § 3-101 is constitutional under

this reading, however, because the legislative history offers a second possible interpretation which

avoids constitutional problems.

In deference to the National Council’s legislative authority, modern Mvskoke jurisprudence

has implicitly incorporated the canon of constitutional avoidance.34 The avoidance canon provides

that “[w]here an otherwise acceptable construction of a statute would raise serious constitutional

problems, the Court will construe the statute to avoid such problems unless such a construction is

plainly contrary to [legislative] intent[.]”3~ Under the second possible interpretation offered by the

legislative history, § 3-101’s four-in-agreement rule may be read in conjunction with § 3-103’s

quorum rule to create an inherent presumption that six qualified justices will participate in each

decision. An inherent presumption of six participating justices both resolves § 3-101’s ambiguity

and results in statutory construction that allows Supreme Court decisions to be delivered by a

simple majority of participating justices after a quorum is established. Under this interpretation,

four justices may deliver a decision if six justices participate.

If only four or five justices

participate, then three may render a decision. A consistent simple majority requirement serves to

~ See supra notes 8, 9 and 32.

~ See Oliver v. National Council, 4 Mvs. L. R. at 289 (“[t]his Court does not believe that the above record of repeated

litigation reflects an intentional attempt by the National Council to usurp the [constitutionally conferred] authority of

either of the other two branches of government of this Nation.”); In the Matter of the Constitutionality ofNCA 98-02, 4

Mvs. L. R. 175, 182 (August 19, 1999) (declining to assume original jurisdiction over a National Council member’s

claim seeking declaratory relief based on lack of standing and noting in dicta that “[w]hile the exercise of [judicial

review] is a formidable means of vindicating individual rights, when employed unwisely or unnecessarily it is also the

ultimate threat to the continued effectiveness of. . . courts performing that role.” (internal citations omitted)); Ellis v.

National Council, 4 Mvs. L. R. 305, 311 (July 12, 2007) (Harjo-Ware, J., concurring in-part and dissenting in-part)

(declaring a statutory requirement for the M(C)N Supreme Court to provide a jury trial on demand by either party in

original jurisdiction cases “void on inapplicability grounds utilize[ing] a least restrictive statutory construction. .

thereby avoiding the constitutional question reached by the majority.).

~ Edwardi DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).

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Opinion and Order, filed May 22,2013

protect an appellant’s right to due process and ensures that the burden of persuasion is unaffected by

external, unrelated factors such as vacancies and recusals.

Although the history of NCA 99-85 and NCA 01-88 fails to offer a clear legislative intent, a

recent amendment to Title 26 is instructive and reinforces our conclusion that the second

interpretation of § 3-10 1 is proper. In April 2012, NCA 12-03 3 created a new Title 26 which, inter

alia, established a new organizational structure for the District Court.36

Title 26 previously

specified that appointment of a special District Court judge required “[a] majority of the Supreme

Court Justices [to] approve the appointment [~]~37 NCA 12-033 amended the procedure, however,

to require “the Supreme Court, by majority with a quorum present, [to] appoint a Special Judge”

when no District Court judge is available to preside over a specific case or matter.38

Our

construction of § 3-101 is consistent with NCA 12-033’s clear, unambiguous expression of the

simple majority requirement. Additionally, the National Council’s findings included within NCA

12-033 do not suggest that the legislation was intended to alter judicial procedure already in place.

We conclude that, rather than alter or create new requirements, NCA 12-033’s effect was to clarify

the pre-existing requirement for Supreme Court decisions to be made by a simple majority of

justices after the Court establishes a quorum.

Construction which reads § 3-101 and § 3-103 as functionally equivalent to the simple

majority rule also comports with the historical reality that the Supreme Court is required to decide

most cases with less than six justices. In light of this reality, it would be nonsensical to construct §

3-101 in a manner that ignores its history and interrelatedness with

§ 3-103.

The only

constitutionally acceptable construction requires both sections to be read together and require only a

36

NCA 12-033 (April 10, 2012) (repealing Title 26 in its entirety and creating a new Title 26 establishing the District

Trial Court Civil, Criminal, and Family Divisions) (as amended by NCA 12-128 (August 9, 2012)).

~ M(C)NCA Title 26, § 3-102.C (repealed 2012).

38 NCA 12-033, § 2-202.A (April 10, 2012) (emphasis added).

Page 13 of22

SC 10-01, Ellis i’. Checotah, eta!.

Opinion and Order, filed May 22,2013

simple majority of a quorum for Supreme Court decisions. A three-justice majority is sufficient for

a decision when only four or five justices are participating. Due process sufficiency and deference

to the National Council’s legislative authority dictate that we adopt this interpretation.

The

legislative history of the Judicial Code and recent revisions to Title 26 evince no other conclusion.

Part II

Appellants’ second proposition of error asserts that two of the three justices who joined in

the Order’s majority opinion were ineligible and lacked judicial authority because their terms on the

Court had expired prior to July 20, 2011. Appellants’ motions to vacate failed to cite authority in

support of the second proposition of error; however, we presume Appellants seek to invoke

M(C)NCA Title 26, § 3-204. This section states that “[a] justice or judge whose term of office has

expired and who has not been reconfirmed by the National Council shall not be permitted to sit as a

justice or judge and shall receive no compensation.”39

Appellants’ second proposition is without merit.

Title 26 was repealed numerous times

during a sixteen-month period which preceded delivery of this Court’s Order dated July 20, 2011.

NCA 10-189 constituted the version of Title 26 in effect at the time the Order was filed.4° NCA 10189, unlike previous versions of Title 26, contained no provision similar to § 3-204 regarding

Supreme Court justices and no subsequent amendment has replaced it. Appellants’ assertion that

~ M(C)NCA Title 26, § 3-204 (enacted as a provision of NCA 88-17 by veto-override, May 7, 1988) (superseded 2010

byNCA 10-189).

10-189, (enacted by veto-override on November 22, 2010) (repealing Title 26 in its entirety and creating a new

40 NCA

Title 26 establishing a criminal trial court, civil trial court and family trial court) (superseded 2011 by NCA 11-213)

(superseded by NCA 12-033 (April 10, 2012) as amended by NCA 12-128 (August 9, 2012)).

Page 14 of22

Sc 10-01, Ellis v. Checotah, et al.

Opinion and Order, filed May 22,2013

Justice Shirley and Justice McNac lacked judicial authority fails because the § 3-204 was repealed

seven months prior to the anticipated end date of both justices’ terms on the Court.4’

IT IS HEREBY ORDERED that Defendant-Appellants’ Motions to Vacate and Motions to

Suspend the District Court’s Judgment Pending Reconsideration are DENIED.

IT IS FURTHER ORDERED that Appellants’ claims of procedural error, to the extent

each are inconsistent with the foregoing Opinion and Order, are DISMISSED WITH

PREJUDICE. We emphasize that neither this Opinion, nor the Order of July 20, 2011, should be

read to expand the terms of the permanent injunction issued by the District Court in the underlying

matter. The proper forum for any future substantive claims which seek relief from the permanent

injunction granted in the District Court’s Final Judgment and Order dated March 19, 2010, is the

Muscogee (Creek) Nation District Court.

DELIVERED AND FILED: May 22, 2013.

Richard C. L

Chief Justice

ance

~ R. ~

Kathleen R. Supernaw

Associate Justice

~

Andrew Adams III

Vice-Chief Justice

____________

George Thomp~n

Associate Justice

Justice Shirley and Justice McNac’s six-year terms were anticipated to end on June 30, 2011. Faced with the absence

of two successors and in an effort to preserve the Court’s ability to establish a quorum sufficient to operate, both justices

chose to remain on the Court until two replacement justices were duly nominated by the Principal Chief and confirmed

by the National Council as required by Article VII, § 2 of the Muscogee (Creek) Nation Constitution. In choosing to

remain on the Court, Justice Shirley and Justice McNac relied on this Court’s previous decision from two decades

earlier in SC 86-04. In SC 86-04, a unanimous five-justice Court held that, when faced with diminishment of its

constitutionally vested judicial power due to failure of another branch to perform its constitutional obligations, each

justice “shall and do retain their position and authority and shall continue to serve as Justice until their successor is duly

qualified.” In re: the Supreme Court of the Muscogee (Creek) Nation, I Okla. Trib. 89, 91 (October 31, 1986).

Page 15 of22

SC 10-01, Ellis v. Checotah, et al.

Opinion and Order, filed May 22, 2013

Deer, J., concurring specially as to Part II.

I concur with the result reached by the majority; however, in my view, the majority opinion

resolves Appellants’ second proposition of error by relying on irrelevant legislative history.

Appellants’ second proposition asserts that two of the three justices who joined in the majority were

ineligible due to expired terms. The issue of Supreme Court vacancies created solely by lack of a

duly qualified successor was settled over twenty-five years ago. In SC 86-04, a unanimous fivejustice Court held that, when faced with diminishment of its constitutionally vested judicial power

due to failure of another branch to perform its constitutional obligations, each justice “shall and do

retain their position and authority and shall continue to serve as Justice until their successor is duly

qualified.” In re. the Supreme Court of the Muscogee (Creek) Nation, 1 Okla. Trib. 89, 91 (October

31, 1986). Rather than relegate SC 86-04 to a footnote and rely on the absence of a constitutionally

suspect statutory prohibition to resolve Appellant’s second proposition of error, I would rely solely

on SC 86-04 as primary authority.

Our Nation’s Constitution specifies the Supreme Court “shall be composed of six (6)

members appointed by the Principal Chief, subject to majority approval by the

Council, and whose term shall be for six (6) years beginning July 1.~~42

.

.

.

National

This simple mandate

emphasizes no single component at the expense of the other. The requirement for a six member

Court is equal to the requirement for Court members to serve six-year terms. Likewise, both of the

preceding requirements are equal to the nomination and confirmation requirement. Any statutory

mechanism creating a bypass to these requirements would be constitutionally suspect.

When a

vacancy on the Supreme Court is allowed to occur solely due to the completion of a justice’s six

42

M(C)NCA Const. Art. VII, § 2.

Page 16 of 22

SC 10-01, Ellis v. Checotah. eta!.

Opinion and Order, filed May 22, 2013

year term before a successor has been nominated and confirmed, it upsets the balance struck by

Article VII, § 2, and runs counter to the bedrock democratic principle of an unbiased judiciary.

1k144k0.4)

Montie R. Deer

Associate Justice

Page 17 of 22

SC 10-0 1, Ellis i’. Checotah, eta!.

Opinion and Order, filed May 22, 2013

Harjo-Ware, .1., concurring specially as to Part I, dissenting as to Part II, and dissenting in

judgment.

The Muscogee Constitution plainly states that the Supreme Court “shall be composed of six

(6) members

.

.

[.]“~

I concur with the majority that so long as six justices are seated and

available to participate on a given case, the Title 27, § 3-10 1 (four-in-agreement rule)44 is valid. I

further concur that when less than six justices are available to deliberate and decide cases, Title 27,

§ 3-101 becomes constitutionally problematic. The majority relies on Title 27, § 3-103 (four-justice

quorum rule) to avoid reaching the constitutional question. I would rely on other statutory grounds.

For a time, a statutory mechanism existed by which Title 27, § 3-101’s four-in—agreement

requirement could consistently be met. From October 1988 to April 2010, the Muscogee Code

allowed for appointment of special (temporary) justices by the Principal Chief, Speaker of the

National Council and Chief Justice of the Supreme Court “acting jointly.”4~ From August 2, 2010

to November 22, 2010, another statutory provision allowed for the appointment of special justices

by the Principal Chief and the National Council.46 In my opinion, § 3-101’s four-in-agreement

requirement was valid while it coexisted with the statutory methods for appointment of special

justices. The option to seek appointment of a special justice was, however, unavailable when the

43M(C)NCA Const. Art. VII. §2.

‘~ Title 27, § 3-101’s “four-in—agreement” requirement originates from NCA 99-85 (July 1, 1999), which was, perhaps,

a true legislative act adopted by the Muscogee National Council. NCA 01-88 (May 24, 2001) perpetuated the four-inagreement requirement, after the Muscogee Supreme Court presented proposed revisions to certain sections of Title 27

which were subsequently approved by the National Council. The proposed revisions were forwarded to the National

Council presumably pursuant to Muscogee Constitution Art. VII, § 3.

~u NCA 88-69 (October 18, 1988) (providing a temporary justice could be appointed by the Principal Chief, Speaker and

Chief Justice acting jointly for a single case or conflicting issue) (provision for appointment by joint action codified at

M(C)NCA Title 27, App. 1, Rule ISA, and subsequently repealed in 2010 by NCA 10-050 (enacted by veto-override

on April 26, 2010)).

46 NCA 10-111 (enacted by veto-override on August 2, 2010) (Section 3-103 provided that “[i]f illness, conflict of

interest, disqualification or other considerations prevent a. . . justice from hearing cases for an extended period of time

(not including any vacancy created by the expiration of the term of a. . . Supreme Court justice), then a Special [justice]

may be appointed after following the process of nomination by the Principal Chief and confirmation by the National

Council . . . [.]“).

Page 18 of22

SC 10-01, Ellis v. Checotah, eta!.

Opinion and Order, filed May 22,2013

Supreme Court deliberated the merits of the underlying appeal and delivered the Order of July 20,

2011. In the absence of the appointment of special justice to achieve § 3-101’s super majority

§ 3-101 creates an

requirement, I must concur with the majority’s analysis in Part I that

unconstitutional burden on appellants. The super majority requirement makes it harder for

appellants to overturn a District Court decision.

In the instant matter, neither party received the requisite number of concurring justices to

have a valid decision under § 3-101. The validity of this Court’s Order dated July 20, 2011, was

infected with doubt because it was delivered pursuant to a purported 3:2 decision and no previous

case or controversy had interpreted § 3-101 while meeting its requirement.

The effect of the

clouded Order was to leave undisturbed the permanent injunction granted by the District Court

against Defendant-Appellants. It is clearly evident, however, that the four-in-agreement rule places

an unfair burden on any appellant when the Supreme Court consists of less than six justices. Absent

the previous statutory mechanism for appointment of special justices, the four in-agreement rule

renders it impossible for an appellant to win on appeal by persuading only a simple majority of the

Court. This is most unfair to appellants because it creates an inconsistent burden of persuasion

based solely on the number of seated justices available to participate.

In the absence of a

mechanism to appoint special justices, I agree with the majority’s analysis which concludes that

such procedure necessarily fails to sufficiently protect an appellant’s right to due process.

As to Part II of the majority opinion, the majority holds that there is no longer a Muscogee

statute prohibiting judicial holdovers, therefore participation of former justices whose terms had

expired was proper. I respectfully disagree. No statutory provision prohibiting Supreme Court

justice holdover is necessary because the prohibition originates from the Muscogee Constitution

itself. Article VII, § 2, provides, inter alia, “[t]he Supreme Court shall be composed of six (6)

Page 19 of22

SC 10-01, Ellis v. Checotah. eta!.

Opinion and Order, filed May 22,2013

members appointed by the Principal Chief, subject to majority approval by the Muscogee (Creek)

National Council, and whose term shall be for six (6) years beginning July 1 ~ Constitutional

prerequisites to serve on the Supreme Court are nomination and confirmation. Both nomination and

confirmation are qualifiers to being validly seated term justices of the Muscogee Supreme Court.48

The majority opinion lets stand without comment a 1986 administrative order (1986 Order)

delivered by three (3) validly seated term justices of the Supreme Court and in the absence of any

real case or controversy properly presented to the Supreme Court. Two former justices whose terms

had expired approximately three months prior to delivery of the Order participated in legislating the

extension of their own terms.49 The order, as-delivered, contained no factual background regarding

the circumstances which led to the need for a Supreme Court administrative order. When the 1986

Order was later published in Oklahoma Tribal Court Reports, the general editor included a syllabus

which attempted to compensate for the absence of factual background.5° The syllabus indicated that

the 1986 Order was delivered sua sponte by the Supreme Court in response to legislation which

required tribal judges to be one-quarter Muscogee (Creek) by blood.5’

Rather than address the

constitutionality of legislation regarding a statutory requirement for members of the judiciary to be

full-citizens, the 1986 Order consisted of a sweeping statement unrelated to any quarter blood

~ M(C)NCA Const. Art. VII. § 2 (emphasis added).

48 Reference is made to term justices since there are no permanent or lifetime appointments to the Muscogee Supreme

Court. There are only six year (term) appointments pursuant to the Constitution or special (temporary) appointments

when statutorily authorized.

~ It is interesting that this administrative order was not published in the 2006 edition of Volume 4 of the Muscogee Law

Reporter where Muscogee Supreme Court decisions were published. It was found in Volume 1 of Oklahoma Tribal

Court Reports (1 OkIa. Trib. 89).

50 The syllabus is an editorial comment which is not a part of the case.

~ In Bruner v. Muscogee (Creek) Nation, 4 Mvs. L. Rep. 29, 34 (March 7, 1987), the blood quantum of the sitting

District Court judge was challenged. Although the Bruner case was a properly filed appeal from a decision of the

Muscogee (Creek) Nation District Court, the same three validly seated term justices and two former justices who held

over pursuant to the 1986 Order purportedly ruled that the Muscogee Constitution addressed the qualifications required

of inferior court judges which did not include a blood quantum requirement. In orbiter dicta, they also pronounced that

the Muscogee Constitution did not require the Supreme Court justices to be a quarter blood or more.

Page 20 of 22

SC 10-01, Ellis v. Checotah, et al.

Opinion and Order, filed May 22,2013

issue.52 Although the 1986 Order could have been a valid decision of the three seated term justices,

in my view, the order inappropriately legislated the authority for two former members of the Court

to holdover.53

As of July 20, 2011, this Court was comprised of three validly seated justices. In the instant

case, a simple majority of those three agreed that the District Court’s conclusions of law in the

underlying case were erroneous and insufficient to sustain the permanent injunction against

Appellants.

But for Title 27, § 3-103’s requirement for a quorum of four justices, Appellants

obtained a simple majority. In the absence of a statutory mechanism by which the Supreme Court

will consistently enjoy six validly seated members, i.e. appointment of special justices, Title 27, §

3-103 also creates a prejudicial requirement equal to that created by § 3-101. An appellant has no

opportunity to obtain reversal of a District Court decision if the Supreme Court is unable to achieve

a quorum to begin hearing and deliberation. This, too, is untenable. Without the ability to seek

appointment of special justices when the Court is unable to meet the four-justice quorum

requirement, § 3-103 must also fall to avoid an unconstitutional infringement on the rights of

appellants. Accordingly, as to the majority’s unstated, yet necessarily obvious, validation of the

four-justice quorum requirement under Title 27 § 3-103, I respectfully dissent. I must therefore

dissent to the majority’s overall judgment which is based upon that premise.

In conclusion, I believe that while the authority to appoint special justices was available, §~

3-101 and 3-103 were valid. That authority should have been utilized rather than ignored. The

52

“The power and authority of this Court will not be decreased, nor will this court be diminished by any other branch of

the tribal government by its failure to perform its duties and obligations under the Constitution of the Muscogee (Creek)

Nation, and this Court finds that the Justices of this Court should retain their position and continue to perform the duties

of Justice of this Supreme Court until their successors are duly qualified. IT IS THEREFORE ORDERED,

ADJUDGED AND DECREED that each Justice of the Supreme Court of the Muscogee (Creek) Nation shall and do

retain their position and authority and shall continue to serve as Justice until their successor is duly qualified.” In Re the

Supreme Court of the iViuscogee (Creek) Nation, 1 Okla. Trib. 89,91 (October 31, 1986).

~ As of the date the 1986 Order was delivered, Justice Howe and Justice Berryhill had not been reconfirmed to serve on

the Court for a second term.

Page 21 of22

SC 10-01, Ellis i’. Checotah, et al.

Opinion and Order, filed May 22,2013

Supreme Court should have always been comprised of six justices. Decisions should have been

deliberated by four-justice quorums with decisions rendered by four-justices-in-agreement. In my

opinion, decisions issued without both appointing special justices when such appointment authority

was available and complying with the requirements of~ 3-101 and 3-103 were and still are invalid.

However, in the absence of the authority to appointment of special justices, there are times the

Supreme Court will not be comprised of the constitutionally required six justices.

In these

instances, I believe the due process rights of our citizens and other appellants are jeopardized.

Statutory provisions which create a higher burden on them to overturn district court decisions such

as the four-in-agreement and four-justice quorum rules must fall in favor of their due process rights.

I further believe that only three term justices were validly seated during the pendency and

decision of the underlying case. The authority to appoint special justices had been withdrawn. In

my view, the Appellants’ motion to vacate the permanent injunction should be granted because

they, in fact, won on appeal by a simple majority of 2:1 when our initial deliberation on the merits

was concluded in 2011.

A~k)L~

L!al~Har~W r

Associate Just

CERTIFICATE OF MAILING

I hereby certifS’ that on May 22, 2013, I mailed a true and correct copy of the foregoing Opinion and Order Denying

Motion to Vacate and two separate opinions with proper postage prepaid to the following: Gregory G. Meier, Meier &

Associates, 1524 S. Denver Ave., Tulsa, OK 74119-3829; June A. Stanley, Stanley Law Firm, PLLC, 122 N. Elm

Place, Broken Arrow, OK 74012; Yonne A. Tiger, Campbell & Tiger, PLLC, 2021 S. Lewis Aye, Ste. 630, Tulsa, OK

74104; 0. Joseph Williams, 0. Joseph Williams Law Office, PLLC, P.O. Box 1131, Okmulgee, OK 74447; and Roger

Wiley, Muscogee (Creek) Nation Office of the Attorney General, P.O. Box 580, Okmulgee, OK 74447. Copy e-mailed

to: Donna Beaver, Clerk of the Muscogee (Creek) Nation District Court.

J e Chad ick, t ff Attorney

Page 22 of 22

SC 10-01, Ellis v. Checotah, eta!.

Opinion and Order, filed May 22,2013