A Few Highs And Many Lows Of The Modern Creek Election

By Rob Trepp

Since the Mvskoke people\’s right to elect our Principal Chief was restored to us by Congress in the 1970\’s (even though it had never been legally taken from us), there have been high points and low points which will all wind up in the history books.

The two highest points were the 1975 Election, where Bill Benham, of Hughes District, made sure that every ballot was counted in public for the primary and the run-off. Backed up by his vice-chairman Jerry Riley, of Creek District, and 22 other members of the first tribal Election Board, they ran the first tribally administered election since 1905 (under the 1866 Constitution, each Tribal Town conducted elections locally). And then there was the adoption of the 1979 Constitution, where the five-member Commission made sure the ballots were counted the same way in the three referenda, the ratification election, and the first election of tribal officers.

But those procedures were not written into the first Election Code, and were never adopted by the Election Board. Official results are no longer reported by Precinct — apparently, that became an embarrassment to some tribal officers.

The first Citizenship Code was written to help everyone with \”by blood\” descent get enrolled — later amendments stripped those protections for the average person and may expose the Nation to future lawsuits if the standards in our Code don\’t live up to the requirements in our Constitution.

The entire direction of tribal government has changed over the last 16 years. Cox and Fife helped organize and charter Communities and helped them with grants, loans, facilities, and technical assistance. Communities were written into the Gaming code and the Tobacco code to develop local jobs. A 1975 Census provided base data for future planning. Planning staff and policy staff worked closely with communities and Council committees.

But, almost 16 years ago, the Chief\’s office took a loan package developed by the Duck Creek community and used it, without permission or payment for their costs of development, to build the \”Travel Plaza\” in Okmulgee. The communities were no longer partners with the Complex — they became competitors. The grants and loans disappeared. Facilities had to be leased, with no tribal support for even the poorest communities. Technical assistance and partnership efforts evaporated.

The Complex, under Cox and Fife, saw its role as fighting the state and federal government for our rights and for funding. That ended. The fight turned against our own communities. The Complex wouldn\’t stand up for the communities in Tobacco negotiations with the State (if you can call them negotiations — tribal staff just went to Oklahoma City and brought back whatever the State had worked out beforehand with the Cherokee, Choctaw and Chickasaw). The Complex no longer fought for federal programs like Cox fought for the Food Distribution Program (which the US Department of Agriculture had kept out of Oklahoma altogether). The disinterest of the Complex became so extreme that the Chief\’s office actually turned down federal \”Stimulus\” funding which would have guaranteed millions of dollars of tribal bonds for community development.

In other words, the needs of the people now came second — the needs of the Complex came first.

And that meant the role of the Council had to be limited. The Chief proudly announced that his staff would no longer work with Council members or committees. With no information, the Council could only rubber-stamp the budgets sent to them. Planning disappeared from the budget. Policy analysts disappeared from the budget. Anyone who could study what was really going on in the Complex and independently report on it was moved out, their position disappeared.

And the Complex became reckless. Millions of dollars of the tribal Permanent Fund disappeared through bogus investments. Bidding on tribal contracts, which Fife had insisted upon, disappeared as the Chief\’s political allies were rewarded. Tribal assets were sold lower than market value; new assets were purchased above market cost.

And the Council\’s constitutional control over tribal assets was ignored by the Chief\’s office. When the tribal wind-power unit had problems, it was dismantled and scrapped without the consent of the Council. When the Division of Tribal Affairs performed a project the Council had disapproved, then came to Council for the money they lost and were told to take it from their budget, the entire tribal bison herd was sold (for about a third of its value — the only tribal asset that had increased 95% each year for three years) without the approval of the Council.

This internal war, which has produced nothing of value for the ordinary citizen, finally built into three crises (and, if past election years are predictive, another crisis can be expected this fall). Each of them deserves a good look before we vote this year.

The first crisis started when the Chief submitted his budget, and his staff asked a committee to change the engineering line item from a staff position to a contracts fund. The Committee approved, the Council approved, the Chief vetoed, the Council overrode, and the Chief sued the Council members as individuals, claiming they had no authority to amend his budget. The District court kicked it upstairs to the Supreme Court, so there was no trial record, no exhibits for examination, no discovery, no expert witness testimony — nothing that a modern democratic court would do, not even an order to be accepted or appealed with briefs filed and answered and responded to. Nothing. With nothing in hand, the Supreme Court held what they called a trial. First, they stayed in their chambers far past the time they had set to convene, then they said they were pressed for time and would have to compress the hearing into a couple of hours (where, in any democratic court, it would have taken days, if not weeks, to hear the evidence and witnesses).

The ruling that resulted was unlike any other rule of a court against a legislature anywhere in the free world: \”contempt signs\” (the court even described their size) were to be posted at all tribal buildings (which meant that they were not only posted at voting places right before an election, they stayed up there on the day we all voted). Never mind that the Constitution said in plain language what the Council\’s powers were; never mind that every Council before that one had amended tribal budgets, never mind that every freely elected legislature amends budgets; never mind that the Chief who filed the complaint and the Justice that wrote the opinion had both served on Council and had both voted to amend budgets and to approve amended budgets. This was a political act, intended to intimidate elected Representatives and intended to misinform voters during an election.

The next crisis surged as the Chief began issuing \”Proclamations\” (try finding those in our Constitution) and closing community gaming operations. Cautioned by Council members that he did not have the authority, the Chief decided that every community had somehow violated its Lease, requesting audits from the tribal District Court. The audits only turning up the fact that limited amounts of community funds had been used to benefit community members, the Chief had his private attorney appointed as Special Prosecutor and argued that community funds spent for emergency needs, gas mileage, supplies, and other costs, were actually \”per capita payments\” [they aren\’t: \”per capita\” means to make an equal payment to every member of a group, \”by the head\”]. The District Court agreed, and issued a ruling based on \”equity.\”

Now, here\’s where it gets real tricky. \”Equity\” means fair to all sides. The court could have ordered the Gaming Commissioner (who never took any action against the community gaming licenses, which he had the authority to do under tribal law but must have thought it would hurt his campaign for Chief and his father\’s campaign for Council this year), to order new rules for community gaming income and to suspend the gaming licenses of any communities that would not comply. Or, the court could have ordered a stay to allow the National Council to legislate on specific points to bring the communities into compliance with new standards. The court could have appointed a Law Mender (like Chief Fife did when there were financial irregularities at Holdenville) to work with the communities to develop new policies and procedures. Any of those things would have been \”fair to all sides.\” Instead, the court confiscated $26 million dollars in community funds and revoked community gaming licenses (which only the Gaming Commissioner had the legal power to do). Based on this ruling, the Chief has also closed community centers and has ordered some communities not to even meet without his permission.

The next crisis occurred when I filed complaints with the Election Board the day before we all voted on the constitutional amendments. If you read the opinion by the three members of the Supreme Court, you would think that I only filed one complaint. That just is not true.

My complaints filed before referendum day were:

* Question A67 was not in the form passed by the Convention, and contained issues the Convention never considered.

* There was no education process for tribal voters as was done with the 1979 questions and final ratification.

* A bilingual sample ballot was never published for citizens who are not fully fluent in English.

* Two questions approved by the Convention were not submitted to the voters.

* The Attorney General had not investigated anonymous campaign literature, which violates the Election Code.

* Although the Constitution requires that non-resident voters be allowed to vote for \”national office\” (principal chief and second chief), it does not authorize non-resident citizens the power to vote for District Representatives or in referenda.

The Election Board did not notify me of any hearing on any complaint.

Got that? No hearing. None. No opportunity to stand on tribal land in front of tribal officials and be heard. There is no written document from the Election Board, the Attorney General, or the District Court which has ever explained to me why I was not entitled to a hearing.

The Council filed suit with me against the results. The District Court would not hear the case, and did not appoint a Special Master or Judge to hear the case. This placed the District Court in a difficult position: if the Certificate of Election issued by the Election Board for each Amendment was valid, there was a new requirement that disputes between tribal officers (The Council and the Election Board) had to be decided by a jury. That apparently couldn\’t be tolerated. The question was kicked up to the Supreme Court with no jury ever deciding the evidence.

Apparently, the Supreme Court could not form a majority opinion. After much delay (which they blamed on me somehow), three members claimed to be a majority of six members, and issued a fraudulent document which they styled as an \”Order.\” The next day, the remaining three members issued a Memorandum stating that they did not participate in the decision by the other three, and their words clearly show that they believe the other three acted improperly and could not speak for the Supreme Court without a majority ruling.

The three crises above are just an example of other decisions that were made for purely political purposes.

Citizens in Wagoner and Tukvpvtce (Hughes/Seminole) districts had representatives taken from them by the District Court. Instead of making sure that the Citizenship Board and the Election Board follow tribal law, the Chief\’s office waited, apparently on purpose, until the week before the filing date for office to ask the District Court (not the proper officers under tribal law) to reapportion the number of representatives for each district by population. There were three provisions in the Constitution that created conflict: any two of them could be true, but not all three. Instead of choosing two rules to apply, the Court ignored two and applied only one.

Many of these problems are because the Nation does not have a Bill of Rights. I introduced a Bill of Rights to the Convention — the brother of a candidate for Chief made the motion that it not even be considered, and, side-by-side, both brothers voted with the majority that it not be considered.

If we had a Bill of Rights, one candidate for Council would not have introduced an amendment to the Election Code which would have required every candidate to disclose the names of campaign volunteers, but not the names of persons who contributed to their campaign.

If we had a Bill of Rights, the Chief would not have used the tribal newspaper to make personal attacks on Council members. The tribal paper is tribal property: no more of that property belongs to the Chief than to any other citizen.

Our absentee voters get absolutely no real information. For years, they have only gotten the anonymous and often false postings on a web page that is run for the benefit of the Chief and his allies. It ignores the tribal law against anonymous campaign literature. It has tolerated one of the Chief\’s biggest absentee supporters to make fun of the opinions of our traditional people while talking about sipping beer beside his swimming pool in California (he also types up \”Andrew Jackson awards\” for people who disagree with his position that non-Creek Freedman descendants should be enrolled).

But any candidate that says they want to keep the current District Judge should be voted down. The District Court has permitted the Principal Chief\’s personal attorney to serve as Special Prosecutor in the Chief\’s war against the communities. The District Court and the Principal Chief have simply ignored new tribal laws when the National Council overrode the veto of the Principal Chief. Those candidates who want to keep the current District Court know how to use tribal government against our people, not how to use it for our people.

Sixteen years ago, the Muscogee Nation was ahead of every other tribe in Oklahoma. Other tribes were copying our Constitution and using the Oklahoma Indian Welfare Act to take control away from the BIA. We\’ve lost those sixteen years. Completely.

The most important thing to do this weekend is to turn out the vote. Make your voice heard by marking your ballot. Help other people in your community get to the precincts. Cast your vote to rebuild our Nation this Saturday.