Osage Nation Principal Chief John Red Eagle’s office served the Second ON Congress with a Motion to Quash a congressional subpoena issued to ON Treasurer William Kemble demanding emails and other documents, Friday (Sept. 9).
In a written response from Kemble to Congressional Speaker Jerri Jean Branstetter, he declined to submit all of his emails from any Osage Nation-owned computer, during the period of Feb. 1 to the present, concerning any aspect of his job. The emails are among nine items demanded in the Congressional subpoena served to Kemble on Aug. 2.
Citing the Nation’s Congressional Subpoena Act (ONCA 07-48), the Chief’s motion to quash states that the email request “subjects a person to undue burden or hardship,” which is listed as a reason a person may contest a subpoena in court.
According to the motion, “(Kemble) estimates he either sent or received more than 1,000 emails between Feb. 1 and Aug. 2.”
“Compliance with the subpoena would require a physical examination of each of these emails and a determination of whether each individual email ‘concerns any aspect of (Kemble’s) job.’… Such an examination would consume countless hours, preventing (Kemble) from fulfilling his Constitutional duties as Osage Nation Treasurer.”
The motion to quash was filed in Osage Nation Trial Court Sept. 9.
This is the latest move in the debate between the Executive Branch and Congress over whether Kemble is to submit specific accounting and bank documents, including emails subpoenaed in the wake of the July Congressional subpoena meetings with Kemble and the Accounting Department staff.
The Congress sought the interviews and documents via subpoena to investigate reports of potential problems in the department.
The motion also comes two days after the Congressional Committee on Government Operations met and approved a written report on the July 14 and 15 subpoena interviews and previous subpoenaed documents.
The report issues findings such as Kemble, “implemented new policies and procedures, in the absence of an emergency, without submitting them to (Congress) for approval in violation of the Treasury law; has failed to adhere to the existing approved policies and procedures; and has moved Minerals Council funds without the knowledge and authorization of the members.”
The report is now subject to further consideration and action by the entire Congressional body.
Chief Red Eagle attached a letter to Branstetter with the Sept. 9 motion to quash, noting that he instructed Kemble to submit other emails subpoenaed by the Congress in the spirit of maintaining an “open dialogue” between the two government branches.
In the Aug. 2 Congressional subpoena served to Kemble, the Congress demanded other items including the signature cards indicating authority over First National Bank of Pawhuska accounts holding OMC funds and email correspondence Kemble had with Chief Red Eagle and the human resources department directors for the Osage Nation and Osage Casinos.
In the Sept. 9 letter to Branstetter, Chief Red Eagle noted the two branches now recognize that emails between Kemble and the Chief are considered Executive Privilege, which is a listed defense in contesting a Congressional subpoena, according to Osage law. But Chief Red Eagle is concerned about the potentially time-consuming effort to produce Kemble’s job-related emails as demanded in the Aug. 2 subpoena.
“I have directed the Treasurer not to comply with that portion of the subpoena,” Chief Red Eagle wrote. “The demand for such documents is broad and interferes with the Treasurer’s ongoing work.”
“Furthermore,” according to the motion, “(Kemble) would have to review each individual email to determine, on a case-by-case basis, which emails are subject to executive privilege, attorney-client privilege, or some other applicable privilege or protection – a task which, due to the nature of the privileges in question, could not be reasonably delegated to office staff.”
The Osage News contacted Kemble (who did not immediately respond) and Chief Red Eagle’s offices after the motion to quash was filed.
In a written statement, Chief Red Eagle said: “This matter also raises separation of powers questions… The Osage people, in approving our Constitution, vested certain powers in each branch of our government and one shall not exercise powers reserved for another. If I were to attempt to do some of the duties of the Congress, they would certainly protest.
“Finally, there is a supremacy clause in the Osage Constitution. The supreme executive power is vested in the Principal Chief. It’s time to let our tribal court do their duty.”
The Second ON Congress convenes for Day 6 of the 2011 Tzi-Zho Session 10 a.m. Monday, Sept. 12.