Attorney General opinion says Budget Parameters Act unconstitutional

In light of the recent Osage Nation Supreme Court ruling in Standing Bear v. Whitehorn, the ON Attorney General issued an opinion on the Budget Parameter and Limitations Act and said it is unconstitutional and void.

Principal Chief Geoffrey Standing Bear issued the question to AG Holli Wells, which asked, “Does the Budget Parameter and Limitations Act (ONCA 13-67) and the related ONCA 13-50, as amended by ONCA 14-85, violate the Constitution of the Osage Nation?”

The bill, passed in 2013, established parameters and limitations on the Nation’s budgets and stopped the ability of the Executive Branch to shift money by line item into salaries and wages, employee benefits or to create new positions. It also stopped line item shifting between any administrative expenses and non-administrative expenses. It put various limitations in effect on the Nation’s budgets and how money can be spent.

Wells’ opinion is not law and cannot void the Budget Parameter and Limitations Act, but the opinion can be used against the legality of the bill in the ON Trial Court or the Osage Nation Congress can rescind the law.

“Unlike the voluminous amount of Federal law on severability, there is no original Osage jurisprudence [legal system] on this issue. However, I cannot create original Osage jurisprudence through Attorney General opinion,” said ON AG Holli Wells in her opinion. “Since there is no severability clause that would save any constitutional provisions remaining in the Act (and Congress knows how to do so), it is my opinion that the entire Budget Parameters and Limitations Act is unconstitutional and void.”

In 2013, former Principal Chief John Red Eagle vetoed the bill. In his veto message he said, “this proposed law violates Separation of Powers by restricting the Executive Branch’s ability to manage its departments and staffing needs. Instead, the Congress inserts itself into the Executive function by requiring its ‘specific approval’ to establish new jobs, even though the appropriation has already been made. Delays will occur while we wait for Congress to make an executive decision.”

The Third Osage Nation Congress overrode Red Eagle’s veto, including current Principal Chief Geoffrey Standing Bear and Assistant Principal Chief Raymond Red Corn who were congress members at the time.

“At the time I thought it was constitutional, but after I read the Supreme Court’s well reasoned opinion it became clear to me and the assistant chief agreed, that the budget parameters act was unconstitutional,” Standing Bear said. “I’m a licensed attorney, I’m going to follow our Supreme Court … These congress members have also taken an oath and the Supreme Court has laid out the rules.”

Standing Bear said the AG’s opinion flows from the Supreme Court’s decision, heavily emphasizing the need for separation of powers. Wells also points out in her opinion that she would be following the Supreme Court’s lead and not using state or federal case law as a guide in her opinions.

“The Supreme Court went in a direction that none of us really expected. They said we’re not going to use Oklahoma law, we’re not going to use federal law, we’re going to use the history of the Osage Nation – that was really brilliant,” Standing Bear said. “I have sworn to follow the law and the Supreme Court has declared what the law is, now we’re operating in a new world.”