07 Sep COUNTERFEIT DEMOCRACY: A STORY OF ABSOLUTE POWER CORUPTING ABSOLUTELY
A STORY OF ABSOLUTE POWER CORUPTING ABSOLUTELY
By Blake Lynch
The History of the Tribes that currently find themselves in the State of Oklahoma is an important and well documented subject, and not one that I am an expert on by any stretch of the imagination. This is a story of the Present of one Tribe – The Choctaw Nation – and their growing pangs.
Tribal Council and the Chief
In the Choctaw Nation, the Tribal Council plays the role of a legislature and the Chief, the Executive. These branches of government, along with the judicial branch, are to remain completely separate. According to the Choctaw Constitution, Article V, no branch of government shall exercise power properly attached to another branch. For example, the Chief cannot introduce legislation, the Council cannot act as a court, the Courts cannot write laws, etc. This is basic civics, the separation of powers is not a new concept, it is not exercised in the Choctaw Nation.
According to a source, the bulk of the amendments to the Election Ordinance 2013 were proposed by the Chief’s office. At least two of the attorneys involved in the 2015 election claim to have been involved in the preparing of the Election Ordinance (one of which represents the Chief and the Election Board, the other is an “advisor” to the Election board). These amendments received little discussion and little review according to that same source when they were unanimously approved by the Tribal Council. While unanimous approval might sound like a welcome reprieve from the gridlock in this instance it is only another example of the totalitarian government and lack of separation of powers. No minutes of Tribal Council meetings are posted online and inquiries about the minutes go unanswered. One thing that we do know is that basically every action taken by the Council – regardless of the Bill’s source – are unanimously approved, likely with little or no discussion. So, we have an executive branch dictating legislation, relatively uncontested. Before we look at how that worked to deny at least 2 candidates due process, let’s first look at what the Council passed blindly.
Election Ordinance(s)/Principal Chief Act
Prior to the 2015 Chief and Council elections the Tribal Council went to work trying to Amend the 2013 Election Code that was then in effect. The 2013 Election Ordinances were full of issues that the Tribal Council and appointed Chief felt tremendous political pressure to address prior to the 2015 elections. This process lead to a series of proposed amendments, approximately 30 in total, and the promulgation of a document called “Election Ordinance 2015”. Later, a document with the same language of “Election Ordinance 2015” was placed on the ChoctawNation.com website for candidates to review without that title or the “Election Ordinance 2013” title – the name of that document is simply “Choctaw Election Ordinance”. This might seem like an odd and inconsequential detail were it not for the Principal Chiefs Act of 1970.
The Principal Chiefs Act of 1970 is relatively simple. It gives the 5 civilized tribes the ability to elect their Principal Chief(s) by the procedures approved by their governing bodies, subject to the approval by the Secretary of Interior. The Election Ordinance of 2013 was approved by the Secretary of Interior. The changes, however, to that Ordinance have NOT been approved. Nor has anything call the “Election Ordinance 2015”. When a Chief or Governor is elected pursuant to approved ordinances and election procedures they are duly recognized by the Federal Government – when they are not, they (at least according to this act) are to vacate their post in a timely fashion until proper procedures are approved and a valid election is held.
To date “Election Ordinance 2015” and the 30 amendments to “Election Ordinance 2013” have not been approved by the Secretary of Interior. It is not believed that they have even been submitted for approval. Inquiries were made to the Choctaw Nation – specifically to Court Clerk and to Megan Jones (attorney for the Chief) who stated in a hearing that she partially drafted the 2015 Election Code, regarding whether “Election Code 2015” was ever passed or whether, through the passing of a Bill called CB 55-15 and CB 71-13 (Election Code 2013) the Tribe amended the old Election Code. No response was made to me regarding that request, and regardless, the amendments or “Election Ordinance 2015” has never been approved. This puts the sitting Chief in the same position that other Chiefs of dubious elections were in back in 1970 – invalidly elected.
Using what we can refer to from here on out as the Election Ordinance, sitting members of the Tribal Council and the Appointed Chief launched an assault of select opposition candidates for their seats. As a result of concern over Tribal policies, issues with improper use of Tribal funds (which lead to a Federal criminal conviction), and growing civil unrest, a number of candidates embarked on campaign to reform the Tribal government. Many of their complaints came from actions taken by the executive/Chief…the same Chief who months before had managed to walk through at least 30 favorable amendments to the 2013 Election Ordinance.
Executive Agencies acting like the Legislative. So simple rule 1 for running a government is to have checks and balances so that no one branch has too much power. The Election Ordinance created an Election Board made up of members selected by the Chief to carry out the law. This Board created a “Candidate Guide”, presumably to condense some of the Ordinance into easier to follow rules. Instead, they simply made up law. In the Verification of Residence section the Board (according to the Board at a hearing) created 5 ways to identify one’s residence and stated that at least 3 of the 5 must be provided to “prove” residence. These 5 items do not exist in the Election Ordinance. They are actually taken from the 2013 Ordinance – these portions were not in the 2015 version. The actual definition of residency is also in the guide, but as discussed later, this board of persons with no legal background, who were advised by attorneys hired by the Chief, chose to ignore the simple legal definition and instead applied standards that were repealed by the Legislature/Council.
Executive Agencies acting like the Judiciary. Back to rule 1 for a good government – the branches have to be separate and have to be able to check each other. In State and Federal agencies you have a right generally to a hearing, on the record, with Administrative law Judges in those agencies to handle disputes. These are attorneys who act as “quasi-judicial” courts and conduct hearings, on the record. If, at the end of that hearing (assuming that fully exhausts your administrative remedies) you can almost universally appeal that decision to an actual court. But, when the executive controls the legislation – as happened with the Election Ordinance – you end up with something completely different and wholly unique in civilized society – a closed hearing, with no record, conducted by non-attorneys who are advised by the attorneys for the Chief, and whose orders are not appealable to an actual Court. That was a long sentence so I will break it down. If a candidate is challenged (as to residency or other qualifications to run for office) they must appear in front of the Election Board. According to the Election Board they do not have to follow the rules of evidence, don’t have to hear objections, can deny the appearance of witnesses, can cut attorneys off and can set arbitrary time limits – none of this exists in the Election Ordinance, they made all of it up. In addition to being able to make up their own rules, they do not allow any recordings, pictures, etc. to be made. That way, after the hearing you cannot refer to any record showing what was done or said in the hearing – eliminating all accountability from the process. And, thanks to the amendments that were passed, the Legislature has said that this Election Board, that has not legal training, is the final say so in any dispute. They are literally the judge, jury, and executioner. The make the rules, they interpret the rules, and they enforce the rules, all with the assistance of attorneys hired by the Chief.
Bo Miller. Bo might be the nicest guy I know. I know people say that about a lot of people, but I am serious. He is kind, tenderhearted, and giving. Bo has lived in District 11 – McAlester, for over four (4) years. He resides in McAlester with his Sister, an elderly widow who cannot drive. He moved to McAlester to aid with the care of his Brother-in-law who was ill and eventually passed away. Bo owns a home in Tulsa that he had applied for a homestead exemption on in the 1980s. That home is occupied by his disabled daughter and her son. Bo gets mail in McAlester and states that is his home. Bo receives his health care from the Choctaw Nation and has for more than four years. If he were a “resident” living outside the Nation, he would not be eligible for health care. The tribe knows this. He has not resided anywhere else in the last 4 years, and if he visits anywhere, his intent is to return home – to McAlester. The definition of residence in the Election Ordinance is the place where the candidate has a true, fixed and permanent home, and to which, whenever absent, the candidate has the intention to return. McAlester is the place for Bo.
Bo’s candidacy was an unlikely one. When asked about campaign contributions he stated he took none because he didn’t want to owe anyone any favors. In trying to remove Bo as a candidate the Chief of the Choctaw Nation, who had a substantial campaign war chest, claimed that one of the reasons Bo should not be allowed to run is that he might be able to raise too much money. Bo did little campaigning, mostly he just went to public events with other candidates for Chief and Counsel to meet and speak to people. Bo simply wanted to make sure that he could get his name out there and share his opinions with people, he owed no favors and asked for nothing but consideration. The sitting Chief of a Billion dollar tribe and the sitting Councilman challenged Bo’s candidacy.
In their challenge they laid out several reasons why Bo should not be allowed to run for two offices – an act not prohibited by the Election Ordinance or the Tribal Constitution. These reasons were not considered by the Election Board. They instead focused on residency. Bearing in mind that the Election Board prohibited ANY recording of the hearing, the following is my best recollection of what was presented:
1. The attorney for the Chief and Councilman (this is a separate attorney that works for the Chief – that’s 3 total at this point) presented her evidence that:
a. Bo had a Broken Arrow residence that he applied for a Homestead exemption for in the 80s and never changed or renewed.
b. Assistant Chief Austin was called to say that he overheard a conversation between Bo and the Chief (who was in the next room as it was HIS contest to the candidacy of Bo) where he alleges Bo said he lived in Broken Arrow.
c. Current Councilman Pate, who has severe ailments and was hard of hearing testified that he did not recall Bo living in the District (It was reported that he had had a stroke in the not-so-distant past and had health issues since – I spoke to him outside of the hearing and he could not recall who I was even though I had been asking him questions just minutes earlier)
2. Bo, Kalyn Free (Co-Counsel), and I presented evidence that:
a. Bo had lived in McAlester for over 4 years through:
i. Testimony from Bo himself,
ii. Testimony from his Sister, and
iii. We attempted to offer testimony of his Daughter and Grandson but were told it was unnecessary.
b. Bo presented mail and identification cards proving his McAlester residence.
The most poignant moment in this hearing, and one that should have been caught on video were it not for the rules requiring that this kangaroo court be kept secret was when Bo, an elderly veteran, asked the Assistant Chief why he would lie to the Court. The Assistant Chief didn’t have a good answer, he simply kept repeating that he is pretty sure that is what he heard while eavesdropping on someone else’s conversation. During the hearing I asked why we didn’t have the Chief come in and testify about this conversation – no one would answer that question. When the person who was allegedly told something refuses to say he heard it – even though it will help his cause – it’s hard to believe that it occurred. That’s the sort of credibility evaluation that we trust judges to do…the Election Board instead found that the eavesdropping testimony was more credible that the testimony of an elder Veteran and his elderly sister.
Not to beat a dead horse, but I think that the scene must be set accurately. There were 5 attorneys at this hearing. One represented the Board and was hired by the Chief and represents the Chief and the Council, one was an employee of the executive branch who can be fired without cause by the chief who did not represent the board, but stated she drafted the Election Ordinance for the Chief, one is an attorney from Gable Gotwals who was hired to contest the candidacy of Bo Miller, Kalyn Free and myself, Blake E. Lynch. There was a Board of 3 non-attorneys there to hear the contest by the Chief. All of these women were appointed by the Chief and were being advised as to the validity of the arguments they heard by the Chief’s attorney as to the Chief’s contest. They were hired by, advised by, and presented argument by the Chief – the same person making the contest…and they claimed to be impartial.
In an era of uncovering overspending – some of which has led to felony charges – it is also interesting to consider how much money the Tribe/Chief spent that day. It is rumored that the Rabon, Wolf, and Rabon hourly rate (Bob Rabon was present) is $500/hour. Lead Counsel rates at Gable Gotwals have been reported to exceed $250/hour (Their rates are not posted, but in ONG v. Apache 355 F.Supp. 2d 1246 – a 2004 case, the lead counsel rate was reduced from the billed amount to $250/hour, so it is presumably more than $250) including travel time to Durant from Tulsa and back. Our hearing was limited to 1 hour, but all counsel was present for at least 2. The contest was several pages long and required a review of the Tribal Constitution and Election Ordinance. Assuming it took as long to write as it did to respond it is not outrageous to think that the “contest counsel” billed at least $3000 for Bo’s case alone (she also appeared for other election contests). If the rate is correct and Rabon, Wolf and Rabon reviewed both sets of pleadings their bill could easily exceed $3000 as well. The staff attorney that was present was likely on salary, but that’s still a cost, along with compensation to all the Election Board members. It would not be difficult to imagine that the Chief/Tribe spent over $10,000 to eliminate Bo Miller from the ballot; a candidate that had no real campaign, took no campaign contributions, and who posed no real threat to the election of the Chief. Why do that you might ask? I can’t tell you. I asked tht same question and got no answer. Maybe it was to keep him from getting a copy of the Voter List, a list of all registered Choctaw voters that is kept secret from everyone except people who run for Chief. Perhaps they just don’t care how much money they spend so long as it goes to their attorneys and people who help them. Bo told me that in his lifetime it has not so much been the white man who has hurt the Indian, but fellow Indians.
A dedicated group of people who refused to give up on holding the Tribe accountable in their elections challenged the results of the District 2 election. The Election Code thankfully allows for such contests, but under some pretty crazy rules. The contest must be filed within 3 days of the election, the Election Board must set it for hearing within 3-5 days after the Petition is filed. The contestant must serve the person who won the election. The hearing is sealed – no person is allowed to stay that is not the contestant or their attorney. The witnesses may not hear what the other witnesses have said. No recording or ANY type may be made – they want no record of this secret hearing. Even though these regulations are so burdensome the candidates who “lost” the election in District 2 filed the contest and set the hearing alleging that the candidate that had won did not meet the residency requirements, had violated campaign laws by using tribal land and assets, and had unlawfully campaigned and loitered at polling places.
From the moment the hearing started it was clear that something was different. Again, the Election Board had an attorney there to represent them (though I do not believe him to be associated with Rabon, Wolf, and Rabon), the staff attorney who wrote the Ordinance was present, as was an unidentified 3rd person who was not on the Election Board. Mr. Ward, the announced winner of the election, appeared by himself. I was present with Mr. Amos, the contestant. Here is a brief version of the hearing:
1. A man was called as a witness who was not a registered voter or Choctaw member who was called by Mr. Ward’s campaign and asked to go vote for Mr. Ward.
2. Taloa Gibson was called and introduced evidence that Mr. Ward changed his voter registration from Idabel (out of the district he ran in) to Broken Bow on April 30th, 2014.
3. A document was introduced showing active utilities in the name of Mr. Ward in his Idabel home in 2015.
4. Mr. Ward produced his license showing that he changed it in December 2014 from Idabel to Broken Bow.
5. Mr. Ward was asked what address he used for his 2014 taxes and he used Idabel
6. Mr. Ward was asked if he had applied for a homestead exemption anywhere and he stated that he had, for his Idabel home – he rented the house he was in in Broken Bow.
7. Pictures from Mr. Ward’s campaign website were introduced showing him on Tribal grounds, with the Tribal Seal in the background.
8. Pictures of a campaign event in a tribal event center.
9. Pictures were introduced showing members of Mr. Ward’s family with campaign signs and shirts on the curb next to the polling place.
Argument was made that the use of a picture taken on Tribal land, with the Tribal seal was a violation of Article XI of the Election Ordinance that prohibits campaigning on Tribal property at all times unless specifically permitted by a Council Bill. Article XI also prohibits the use of personal property of the Tribe for campaign purposes (computers, paper, etc.) The seal used by Mr. Ward is inscribed as “The Great Seal of the Choctaw Nation”. When I stated that using this seal is using tribal intellectual property I was scoffed at by the staff attorney and asked if I had proof that it was owned by the Tribe. For reference this seal appears on all Choctaw letterhead, on Choctaw buildings, and in Choctaw commercials. It is the Great Seal of the Choctaw Nation – and the implication was that the Tribe had no interest in this symbol and that using it was not a use of a symbol belonging to the Choctaw Nation.
Mr. Ward contested that the pictures showing campaigning were more than 100 yard from the polling location – but did not dispute that they were on the curbside (a violation of rule in Aritcle XI again). Nor did he dispute any of the evidence presented except to say the utilities were not on in July 2015, but did not dispute that they were on in 2015.
Here is the part that should be familiar. Mr. Amos was contesting that the candidate met the residency requirements. Remember that the Board arbitrarily created a list of 5 items that could prove residency and said you had to have at least 3. Even though Bo Miller could prove that he was a resident and had uncontroverted testimony, the Board said because they did not believe he presented sufficient evidence of meeting 3 of their 5 made up requirements that he could not run. Now, before the same board, I asked the following:
Mr. Ward, did your driver’s license reflect an address within the District at least 1 year prior to the election? Answer – No
Mr. Ward, did you have utilities on outside the District within the year prior to the election? Answer – Yes. Mr. Ward, did you bring proof today of utilities on within the District that were on at least 1 year before the election? Answer – No.
Mr. Ward, is the address you used for your 2014 taxes outside of the District? Answer – Yes.
Mr. Ward, were you registered to vote at an address outside of the district less than 1 year prior to the election? Answer – Yes.
Mr. Ward, do you have a homestead exemption for an address outside of the District? Answer – Yes.
Mr. Ward, if you do not meet ANY of the residency requirements of the Board to prove residency, why should you be allowed to represent District 2? Answer – Because the Board saw the documentation I provided and certified that I could run.
If Mr. Ward is to be believed, the Election Board – the same one that disqualified Bo Miller for failing to meet 3 of their 5 requirements, were given documentation that Mr. Ward was not eligible to run and verified he could run anyway.
On August 26th, 2015, The Choctaw Nation Election Board sent an “Order” denying the allegations of Mr. Amos regarding election irregularities. In response to the dialogue quoted above Election Board said that it may consider the 5 classes of documentation they listed and “other forms of documentation”. This is the same Board who REFUSED to consider items outside their list at the hearing for Bo Miller. When the Board considered Bo Miller’s driver’s license they stated the fact that it had been changed in the last year made him ineligible. When considering the contest to Mr. Ward, they said that the date of the change did not matter. When considering Bo Miller they said that his homestead residence outside of the District was proof of him living outside of the District. When considering Mr. Ward they said that was not a problem. When looking at the fact the Mr. Ward had utilities outside of the District they said that didn’t matter. They did not even mention the fact that Mr. Ward admitted that his taxes, filed in 2015, were filed with the address outside of the District. Without any basis the Election Board stated that they had heard evidence (of which Mr. Ward presented none…I repeat he offered NO exhibits or evidence at the hearing other than the testimony as described) which clearly established that Mr. Ward was a resident of the District.
The photos of Mr. Ward with the Tribe’s Official seal, the pictures of his family in his shirts, etc. were also dismissed without any reasonable rationale. At one point the Board states that since the photos do not show any “voters” around at the time the family of Mr. Ward was campaigning within 100 yards of the polling place at the curbside that they could not say that he was campaigning illegally. Even though this “requirement” that the Board made up requiring proof voters being present doesn’t exist, the very nature of that argument is outrageous.
The section of the Election Ordinance that this Contest came from is called Contest of Irregularities. At the hearing it was pointed out that if something is no “irregular” it is….you guessed it, regular. The Election board refused to uphold the contest and certified Mr. Ward as the District 2 Councilman. What they said with that decision is that it is REGULAR in the Choctaw Nation for a person who admits that they cannot meet the residency test previously enforced by the Election Board to be allowed to run and the hold that Council seat. To his credit, when I spoke with Mr. Ward outside of the hearing and told him that I did not have any issue with him personally or with his politics, but I find this abuse of power and enforcement of this abhorrent Election Ordinance outrageous he agreed with me – he said things had to change. Hopefully the legal fiction that allows him to hold office will result in some good – maybe he’ll do what no one else has in the Tribal government; he’ll look out for the greater good and not for himself.
This story is long to begin with, so some things were left out, but I would love to speak with you about them if you want to know. A short list includes:
1. In addition to contesting Bo Miller’s candidacy, the attorney hired by the Chief contested another Chief candidate and Alicia Nevaquaya. Alicia consulted with me, but I did not represent her. She was disqualified for failing to meet the Election Board’s “residency test”.
2. The Election Ordinance, for reasons that baffle the mind, include language creating an Administrative Appeals Committee that according to attorneys for the Chief and the district court appointed chief, cannot hear appeals of the Election Board decisions. When asked what this Administrative Appeals Committee for there is no rational response.
3. After being disqualified Bo Miller, through his counsel, filed an Application to Assume Original Jurisdiction with the Choctaw Appeals Court requesting a Writ of Prohibition that would prevent the Election Board member from taking any action to take Bo Miller off the ballot. Counsel for the Chief contended that the Appeals Court for the Choctaw Nation had no power to even make such a Writ or review what the Chief, through his Election Board had done. It is believed that this is the first real appeal heard by the Appeals Court. They did not allow oral argument and denied the Writ.
4. The Department of Interior was sent a letter signed by numerous Choctaws requesting that they stay the elections until they had reviewed and approved the Election Ordinance 2015 or the amendments to Election Ordinance 2013. The Choctaw Nation assured the Department that there were no substantive changes, and the Department took them at their word and refused to even investigate.
5. As a disclaimer, I am not a member of the Choctaw Nation. I studied Indian Law and Policy at the University of Oklahoma College of Law, am married to a Choctaw Citizen, have adopted a Choctaw child, and have worked on numerous Indian reservations throughout the country, but I am not a Choctaw – though I would like to be so that I could do more to help from within the populous of the Choctaw Nation.
I have rallied against abuses of power in the State and Federal Court system and I must say that the Choctaw people suffer from the worst lack of due process I have ever experienced. There is little recourse against established power, the legislative and judicial branches defer to the executive and refuse to challenge the Chief, and the federal government does nothing to try to re-enfranchise the Choctaw people. I know people who have been chastised, ridiculed, and I believe arrested for challenging this power structure. I only hope that the lesson of the 2015 elections is remembered by the voting public when the next cycle comes along or that they will be used as a rally cry to begin real changes NOW.