MALCOLM D. WADE, JR., Vice- )
President of Choctaw Nation )
Enterprises, Inc., and )
PUSHMATAHA, Secretary- )
Treasurer of Choctaw Nation )
Enterprises, Inc., for and on )
behalf of the Board of Directors of )
Choctaw Nation Enterprises, Inc., )
and a member of the Choctaw Nation )
of Oklahoma, )
)
Plaintiffs, )
)
VS ) Case No. C-81-2
)
HOLLIS ROBERTS, in his )
official capacity as Chief )
of the Choctaw Nation of )
Oklahoma, and ROBERT GARDNER, )
in his official capacity as Assistant )
Chief of the Choctaw Nation of )
Oklahoma, alleged Board of Directors, )
of Choctaw Nation Enterprises, Inc.; )
GRANT WILSON, Director, STAN )
MCCASLAND, Director, HI IMPSON, )
Director, IRENE HEARD, Director, )
LOYCE BELL, Director, CHARLES )
TOLBERT, Director, R.L. OWENS, )
Director, WILMA VICTORS, Director, )
and RUBIN WHITE, Director, )
)
Defendants. )

CURTIS, JUDGE.

This case presents the question of whether the Board of Directors of the Choctaw Nation Enterprises, Inc. be appointed through nomination and election by the Tribal Council or through appointment by the Chief with advice and consent of the Tribal Council.

This case began on November 7, 1981, when the Plaintiffs filed their petition herein. The case proceeded through the issue joining phases and came on for trial on its merits on the 24th day of April, 1982.

The operative facts of the case are:

1. A State of Oklahoma Corporation was formed in 1971 with a total of 34,900 shares registered in the name of the tribe. One hundred (100) shares are apparently held by person or persons unknown at this time.

2. The Chief of the tribe appointed a Board of Directors to operate enterprises established under the corporation with subsequent chiefs continuing to appoint members of the board.

3. Acting on the basis of constitutional authority to manage property, the Tribal Council on May 25, 1981, enacted legislation that conferred authority to itself to vote the shares of the corporation and consequently appointed a Board of Directors for the corporation.

4. The Council-appointed Board of Directors, petitioned the Court to enjoy the Chief-appointed Board of Directors, from exercising corporate powers.
The Plaintiffs argue the issue is supported by Article IX, Section 6 of the 1979 Constitution which provides: "The Tribal Council shall make decisions pertaining to the acquisition, leasing, disposition and management of tribal property." And, Wade et al vs: Roberts et al, C-80-2, Choctaw Nation of Oklahoma Tribal Court, defined property and interpreted Article IX, Section 6, to give the Council authority to manage property. They further argue that R-68- 81, a resolution enacted by the Council but not ratified nor vetoed by the Chief, and Title 18, Oklahoma Statutes establishes the "exclusive dominion" of the Tribal Council over management of tribal property with authority to appoint a Board of Directors.

The Defendants argue the issue is supported by Article VII, Section 2 and Section 6, respectively:

"The Chief shall have power to establish and appoint committees, members and delegates to represent the Choctaw Nation with the advice and consent of the Tribal Council. All appointments requiring confirmation shall be presented to the Council within thirty (30) days of the appointment."

And,

"The Chief shall manage, administer and direct the operations of tribal programs, activities and services and report to the Tribal Council quarterly."

They further argue that no one branch of government should have total control over any aspect of tribal operations. They point out the framers of the Constitution never intended that result and as provided in Article V, Section 1:

"The powers of the government of the Choctaw Nation shall be divided into three (3) district departments: Executive, Legislative and Judicial. No person or collection of persons, being one of those departments, shall exercise any power properly attached to either of the others; provided, that the exercise of such power shall be subject to any limitations imposed by this Constitution and Federal Law."

After hearing the evidence in the case and the argument of Counsel, and being fully advised in the premises, the majority, finds, concludes and decides as follows:

Article IX, Section 6, of the 1979 Constitution empowers the Tribal Council to be managers of tribal property. It does not empower the Tribal Council with authority to appoint nor delegate the responsibility of management to any other entity.

In a previous case, Wade et all vs: Roberts et al, C-80-2, property was defined. The rule recognized by the Court previously is applied to identify that the shares of the corporation are property.

In order for the Tribal Council to exercise its rights to manage the property -- the Corporation -- and abide by Oklahoma Statutes governing State Corporations, we conclude they must become the Board of Directors of Choctaw Nation Enterprises, Inc.

We further conclude that if the Tribal Council declines to accept the responsibility to arrange themselves as the Board of Directors, the Chief shall appoint, with advice and consent of the Council a Board of Directors for the said Corporation.

Article VII, Section 2, of the 1979 Constitution is interpreted to mean the Executive Board of Government has the right to appoint any and all representatives of the tribe with a check and balance by obtaining the advice and consent of the Tribal Council. In the case before us, we hold that any operators of enterprises under the Corporation managed by the Tribal Council shall be appointed by the Corporation managed by the Tribal Council shall be appointed by the Corporation managed by the Tribal Council shall be appointed by the Chief with the advice and consent of the Council.

These decisions were made with an intent to segregate Oklahoma State Law and the Constitution of the Choctaw Nation. Whether or not the conclusions of this court are in compliance with Oklahoma Statutes is an issue that must be resolved by the Tribal Council Corporate meetings in their arrangement as Board of Directors. While our intent is not to interpret State law, it is felt that the voting of shares under Oklahoma Corporate law would be the right of the people of the Choctaw Nation. They have expressed the right by electing a policy making body to represent them -- the Tribal Council. They have also expressed their desires by electing a Chief to carry out activities directed by the Tribal Council.

In further clarification, it is our attitude that the people decided there would be checks and balances between the separate branches of Choctaw government, and we feel that our decision herein is necessary to preserve their principal.

The Court would appeal to the Executive and Legislative Branches of Government of the Choctaw Nation to promote a more harmonious working relationship for the betterment of the Tribe.

JONES, JUDGE. I concur in the decision expressed by my colleague, Judge Curtis.

MINORITY DECISION

TAYLOR, PRESIDING JUDGE, (dissenting).
While I join Judge Curtis and Judge Jones in many aspects of their decision in this case, it is necessary that I dissent from their final decision regarding it.

The facts and history of the case are not in substantial dispute on any material issue, and therefore won't be recited by me at this time.
It is apparent to me that in order to secure funding from various nontribal financial institutions, and to satisfy their requirements, it was necessary to form a corporation organized under the laws of the State of Oklahoma (a sovereign state of the United States of Oklahoma). It was this atmosphere that Choctaw Nation Enterprises, Incorporated, was created.

Although this tribe acquiesced in submitted to the laws of the State of Oklahoma which govern and regulate the operation of this "Oklahoma Corporation," we did not forfeit any of our tribal sovereignty to the State of Oklahoma. Our relationship in this matter is more in the nature of a contractual relationship between two sovereign governments.

It is my interest in maintaining Choctaw independence and self-determination which leads me to my conclusion in this case.

In my estimation, it is questionable whether or not the results obtained in the majority decision could be forced upon the courts of the State of Oklahoma or the United States of America. I favor a decision that I think correctly interprets the wishes expressed by the Choctaw people in the 1979 Proposed Constitution and which I think can be enforced upon the other two sovereigns (i.e., the United States, and the State of Oklahoma).

My decision in this case would be to narrowly determine the issue of who may vote the shares of the stock in this Oklahoma Corporation. I believe that the determination of this issue would resolve the dispute herein, if not directly, then indirectly.

I feel that once this Court decided the issue of who can vote the stock the Courts of the United States or the State of Oklahoma would be bound by our decision. If the parties to this lawsuit did not settle their differences, then the appropriate federal court could be called upon to apply our decision and to enforce tribal law and state law insofar as the operation and management of this corporation is concerned.

Although I would agree with Judge Jones and Judge Curtis in their decision as a pronouncement of what the tribal law should be, my decision would hold that Article XI, Section 6, of the Constitution of 1979, dictates that the authority to vote these shares of stock while electing a board of directors, resides with the Tribal Council subject to the veto power of the Chief and their power to override his veto.

I feel this corporate vehicle was necessary at the time it was created, and it quite obviously predates the adoption of the 1979 Constitution. I would encourage the policy makers of the tribe to seek information as to the possibility of finding some other way of owning and managing the tangible and intangible property of the corporation, so the corporation could be dissolved and the property managed as contemplated by the portions of the Constitution providing for the management of tribal property.

I feel that it is possible to project a situation where the Council might decline to sit as the board of directors of Choctaw Nation Enterprises, Incorporated, and yet they would fail or refuse to confirm the appointment of any potential board members appointed by the Chief. If this should happen, there would be no violation of the majority decision, therefore no grounds for removal from office for willful neglect of duty, and yet assets of the tribe would probably be wasted. I think that if all concerned will pause and reflect on the compromises required to achieve tribal self-determination, everyone will try hard to successfully implement the mandates of the majority decision.

In closing this minority decision, it gives me pleasure to state that I have the utmost respect for Judge Jones and Judge Curtis; I profit immensely from my association with them; and will gladly abide by their decision in this case.

Respectfully submitted. JOE C. TAYLOR, Presiding Judge