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Constitution Part 2 – 1990


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ARTICLE IV – RECALL AND REMOVAL OF OFFICERS

Section 1. Officers Subject to Recall or Removal. The Chairman, Vice Chairman, Secretary, and the Executive Council Members shall be subject to recall or removal from office as provided in this article and ordinances implementing this article enacted pursuant to Section 4(b)(2) of Article II of this constitution.

Section 2. Removal of Officers.

  1. The Chairman, Vice Chairman, Secretary, and Executive Council Members shall be removed from office upon a showing that such person has been absent without proper excuse from three (3) consecutive meetings of the Executive Council, has been convicted in any court of competent jurisdiction of any felony or other crime involving moral turpitude regardless of any right to appeal, has been adjudicated incompetent by any court of competent jurisdiction by reason of mental defect, deficiency, injury, or habitual drunkenness or abuse of any drugs, has knowingly mismanaged the duties of the office, or that such person is not eligible to hold office under this constitution and the laws of the Kaw Nation.
  2. Upon notice that removal of an official from office is required, it shall be the duty of the ranking executive officer not personally involved, or upon the neglect, failure, or refusal of that official to do so, any two (2) members of the Executive Council, to file promptly in the courts of the Kaw Nation a civil complaint for removal which shall state the facts sufficient to warrant removal from office and request removal of the officer from office. The Court, sitting without a jury, shall hear and determine the complaint as in other civil actions, and enter an appropriate order granting or denying the removal. The Court shall expedite such actions and may shorten or waive normal time schedules in such cases. The parties may appeal as in other civil cases, Provided, That, if removal has been ordered, the officer may be suspended during the appeal by the Court upon motion of the adverse party or upon its own motion, and the duties of his office may be exercised by a person appointed by the Executive Council for that purpose until the matter is finally determined.
  3. Should the Executive Council fail, refuse, or neglect to file the civil complaint for removal pursuant to subsection (b) of this section, any ten (10) members of the General Council may, in any appropriate case, file the complaint on behalf of the Kaw Nation, Provided, That, in such cases, if the officer is not ordered removed, and if the Court determines that there was no probable cause to file the complaint for removal, the officer shall have a civil action against the persons filing the complaint for any injuries he has sustained, including attorney fees.

Section 3. Recall.

  1. Any member of the Executive Committee may be recalled from office pursuant to this section upon receipt of a petition signed by not less than one hundred and twenty five (125) members of the General Council.
  2. A petition for recall shall be effective only if one (1) member of the Executive Council is named for recall in the petition. A petition may be in one or more parts each having the name and office of the subject of the petition and a statement that the document is a petition for the recall of such person with a general statement of the grounds for such recall at the front or top of each part. The grounds for recall must show that the officer has been derelict in his official duties, abused the authority or power of his office for personal gain, or would be subject to removal for cause pursuant to Section 2(a) of this article. Each person whose signature is solicited must be allowed to read the petition with no interruption by the petitioner. Each signature shall be dated at the time of signing by the person signing the petition. Any signature not dated, or more than sixty (60) days old at the time of filing the petition with the Court, shall be invalid. The person circulating each part shall, upon oath, certify in writing to the authenticity of the signatures and dates on each page of the petition.
  3. The recall petition shall be filed in the Courts of the Kaw Nation which shall determine the validity of the petition. The Court may, upon its discretion, set the matter for a hearing not less than five (5) nor more than twenty (20) days after service of the petition and notice of hearing upon the officer who is the subject of the petition. At the hearing, the Court shall take such evidence as may be necessary to establish that the requisite number of authentic, valid signatures are affixed to the petition, and that the greater weight of the evidence shows that the grounds for recall as stated in the petition are true. If the petition is not certified as valid by the Court due to a finding that the evidence is not sufficient to order an election, and if the Court determines that there was no probable cause to believe that the grounds stated in the removal petition were true, then the officer shall have a civil action against the persons circulating the petition for any injuries he has sustained, including attorney fees.
  4. If the officer who is the subject of the petition offers to resign, he shall submit a written resignation. The resignation shall be accepted and a vacancy declared. If there is no resignation within ten (10) days after the petition is certified as valid by the court, a special election shall be held within sixty (60) days thereafter to determine whether such official shall be recalled. The official shall continue to hold office until the result of said election shall be officially declared.
  5. The election committee shall certify the results of the election to the Court. If a majority of those participating in the recall election and voting in favor of the recall is at least two-thirds (2/3) of the number of votes in favor of the official in the last election, the Court shall order the officer recalled, and declare the office vacant. Otherwise, the Court shall dismiss the recall petition. If the Court determines the special recall election was not held in a substantially proper manner, the Court may order a new election or dismiss the recall petition as justice may require.
  6. An order of the Trial Court ordering or refusing to order a recall election, ordering a new election, or refusing to order an officer recalled, may be appealed to the Supreme Court which appeal may be expedited.
  7. The official who is the subject of the recall action shall continue to hold office until the Court finally declares the office vacant pursuant to the results of the special recall election. However, if the official who is the subject of the recall action appeals an adverse ruling, the Court may in its discretion and upon such terms as may be just, suspend the individual from office, upon its own motion or that of the adverse party. The duties of the office may be exercised by a person appointed by the Executive Council for that purpose until the matter is finally determined.

Section 4. Government As A Party. The Kaw Nation shall be considered a party to all court proceedings under this article, and, upon filing of a complaint or petition and notice thereof in court, it shall be the duty of the Executive Council to appoint some person to represent the interests of the Kaw Nation. This person shall participate in all court actions, may observe the planning and conduct of any election hereunder, and shall have the right to call or question any witness and present argument to the Court for the purpose of protecting the people’s interest in the fairness of the removal and recall procedures established by this article. The tribal attorney shall represent the government representative appointed by the Executive Council in such actions.

ARTICLE V – COURTS
Section 1. Establishment and Authority. The judicial power of the Kaw Nation shall be vested in one Supreme Court consisting of three (3) Justices and such inferior courts as may be established by tribal law.

Section 2. Jurisdiction. The Courts of the Kaw Nation shall be courts of general jurisdiction and shall further have jurisdiction in all cases arising under the constitution, laws, and treaties of the Kaw Nation. The Supreme Court shall have original jurisdiction in such cases as may be provided by law, and shall have appellate jurisdiction in all other cases.

Section 3. Selection of Judicial Officers. The Justices of the Supreme Court and Judges of inferior courts shall be selected by the Executive Council and confirmed by the General Council, Provided, That, Justices and Judges may be appointed by the Executive Council at the request of the Supreme Court to hear a specific case in which the regular Justices or Judges disqualify themselves. Magistrates of the inferior courts may be appointed by the Executive Council for a term of two (2) years, and shall undertake such limited judicial functions as the Supreme Court may by rule provide.

Section 4. Term of Office. The Justices and Judges of the Kaw Nation shall serve six (6) year terms beginning at the date of their confirmation in office and until their successor shall be duly confirmed and installed. At the expiration of his term of office, each Justice or Judge shall, at his option, be considered by the General Council for reconfirmation to a new term of office without opposition.

Section 5. Removal. Justices and Judges of the Kaw Nation may be removed from office only by a majority of the other active Justices and Judges sitting together upon a showing of habitual neglect of the duties of office, oppression in office for personal gain or advantage, or conviction in any court of a felony or other crime involving moral turpitude. Magistrates serve at the pleasure of the Executive Council and may be removed with or without cause at any time. In no case may a judicial officer be removed from office because of his decision or vote in any case before the court.

Section 6. Judicial Review. The Courts are hereby specifically authorized to review, in any case properly before them, the actions of the General Council, Executive Council, or any other officers, agents, or employees of the government of the Kaw Nation to determine whether those actions are prohibited by Federal law, this constitution or the laws of the Kaw Nation. If the action complained of is outside the scope of authority delegated to the entity in question, or if a proper authority is being exercised in a prohibited manner, the Court may enter injunction or other proper equitable relief or declare the action unconstitutional and void as justice may require.

Section 7. Effective Date, Interim Provisions.

  1. This article shall be effective upon enactment of an authorizing resolution by the General Council, and the Executive Council shall thereafter have the authority to enact such laws as may be necessary for the full and proper functioning of the Courts of the Kaw Nation not inconsistent with this article.
  2. Until this article becomes effective, the judicial power of the Kaw Nation shall remain vested in the court of Indian Offenses of the Anadarko Area Office, Provided, That, the Executive Council shall have authority to contract for the operation of the Court of Indian Offenses, and to modify the Court created by this article in order to utilize an intertribal court system in conjunction with other tribes in the Anadarko Area Office jurisdiction, such modification to remain in effect so long as the Kaw Nation is a participant in such intertribal court system

ARTICLE VI – BILL OF RIGHTS
Section 1. Freedom of Religion, Speech, Press, Assembly, and Petition. The Kaw Nation shall not enact or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble or to petition for a redress of grievances. Section 2. Searches and Seizures. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.

Section 3. Rights of the Accused.

  1. No person in any criminal case shall be compelled to be a witness against himself, nor be twice put in jeopardy of life or liberty for the same offense.
  2. In all criminal proceedings the accused shall have the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for defense. The accused shall have the right to trial by an impartial jury of not less than six (6) persons for prosecution of all offenses punishable by imprisonment.
  3. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Section 4. Protection of Life, Liberty and Property.

  1. No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws.
  2. No private property shall be taken for public use without just compensation.

Section 5. Bills of Attainder and Ex Post Facto Laws. The Kaw Nation shall pass no bills of attainder or ex post facto laws.

Section 6. Habeas Corpus. The privilege of the writ of habeas corpus shall not be suspended under the laws of the Kaw Nation except when in cases of rebellion, insurrection or invasion, the public safety requires it.

ARTICLE VII – POPULAR PARTICIPATION IN GOVERNMENT

Section 1. The members of the Kaw Nation reserve unto themselves the power of initiative and referendum.

Section 2. Initiative. Any issue shall be submitted for an initiative election pursuant to this section upon receipt of a valid petition signed by at least one hundred twenty-five (125) eligible voters of the Nation.

The petition shall be filed in the Courts of the Kaw Nation which shall determine its validity and whether its content fairly describes the subject of the petition. Once the petition is certified as valid by the Court, an initiative election shall be called by the Chairman for the purpose of presenting to the qualified voters such issues requested by the initiative. The election shall be held within sixty (60) days of the validation of the petition. The results of the initiative election shall be conclusive and binding on the Executive Council Provided, That, a majority of the votes cast are in favor where at least two-thirds (2/3) of the eligible voters shall vote in the election. No initiative shall serve to abrogate, modify or amend any properly approved contract or agreement.
Section 3. Referendum. Any enacted or proposed ordinance or resolution or other action of the Executive Council shall be submitted to a popular referendum pursuant to this section upon receipt of a valid petition signed by not less than one hundred twenty-five (125) eligible voters of the Nation or upon request of a majority of the Executive Council.

The petition shall be filed in the Courts of the Kaw Nation which shall determine its validity and whether its content fairly describes the subject of the petition. Once the petition is certified as valid by the Court, a referendum election shall be called by the Chairman for the purpose of presenting to the qualified voters such issues requested by the petition. The election shall be held within sixty (60) days of the validation of the petition. The results of the referendum vote shall be conclusive and binding on the Executive Council Provided, That, a majority of the votes cast are in favor where at least two thirds (2/3) of the eligible voters shall vote in the election. No referendum shall serve to abrogate, modify or amend any properly approved contract or agreement.

Section 4. Whenever possible, any initiative or referendum election shall be held in conjunction with any scheduled regular or special Executive Council meeting or General Council meeting.

Section 5. No initiative or referendum which has been submitted to the members and rejected shall be considered again for at least six (6) months.

ARTICLE VIII – AMENDMENTS
(Amended Oct 13, 2006 see Amendment I below)

This constitution may be amended by a majority vote of the qualified voters of the Kaw Nation voting in an election called for that purpose by the Secretary of the Interior and conducted pursuant to Federal regulations, Provided, That, at least thirty percent (30%) of those entitled to vote shall cast ballots in such election, but no amendment shall become effective until it has been approved by the Secretary of the Interior so long as such approved is required by Federal law.

Amendments to this constitution may be proposed by a valid petition signed by at least thirty percent (30%) of the members of the General Council or by a majority vote of the Executive Council.
ARTICLE IX – SAVINGS CLAUSE
All enactments of the Tribe adopted before the effective date of this constitution shall continue in effect to the extent that they are not inconsistent with this constitution.
ARTICLE X – SEVERABILITY
If any part of this constitution is held invalid by the Federal Court to be unlawful, the reminder shall continue to be in full force and effect.
ARTICLE XI – ADOPTION
his constitution, when adopted by a majority vote of the qualified voters of the Kaw Nation voting in an election called for that purpose by the Secretary of the Interior pursuant to Federal regulations, Provided, That, at least thirty percent (30%) of those entitled to vote shall cast their ballots, shall be submitted to the Secretary of the Interior for his approval and shall be effective from the date of such approval.

AMENDMENT I
(Adopted by a vote on Oct. 13, 2006

Amendment I replaces ARTICLE VIII with the following language.)

ARTICLE VIII AMENDMENTS
This constitution may be amended by a majority vote of the qualified voters of the Kaw Nation voting in an election called for that purpose, provided, that at least thirty percent (30%) of those entitled to vote shall cast ballots in such election. If in such election at least thirty percent (30%) of eligible voters of the Tribe vote in the election, and the amendment is approved by a majority vote, said amendment shall be effective from the date of approval.

Amendments to this constitution may be proposed by a valid petition signed by at least thirty percent (30%) of the members of the General Council or by a majority vote of the Executive Council.

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