“The process we have now, we inherited, it’s broken. It does nothing but divide us. It does nothing but allow us to weaponize rules against one another.” – Representative Dode Barnett
OKMULGEE – A public disciplinary hearing found National Council Creek District Seat A Representative Dode Barnett guilty of violating Subsection 114 G 12 B of the Muscogee Creek National Council 2024 Rules of Procedure by a 10-5 vote on Thursday, Oct. 29.
The subsection addresses “interference or harassment of employees of Muscogee (Creek) Nation, enterprises, commissions, or agencies in performance of their duties.” The disciplinary hearing was an internal National Council proceeding, not a criminal or civil court case.
Representing the National Council Internal Affairs committee were Adam Weintraub and Terry O’Donnell. Rep. Barnett represented herself.
The complaint referred to a non-public work session held on Thursday, May, 30, 2024, attended by the MCN Tax Commission and tobacco smoke shop owners. During the session, Rep. Barnett made direct comments on MCN Tax Commissioner Mary Mashunkashey’s work performance. Speaker Randall Hicks made a point of order; however, Rep. Barnett continued to speak.
Principal Chief David Hill made a complaint on May 30, 2024, about the comments. Principal Chief Hill was not present at the public disciplinary hearing.
During opening statements, Weintraub argued the comments were made in an “aggressive and unprofessional manner,” making Mashunkashey’s job “difficult and awkward” to regulate and enforce the Nation’s policies. He also argued that Rep. Barnett was out of order by continuing to make comments after Speaker Hicks made a point of order.
Weintraub also stated in his opening remarks that this is not the first time Rep. Barnett has received disciplinary action while serving on the council. The council previously voted on Friday, March 10, 2017, to send Rep. Barnett a letter of reprimand by a vote of 11-3. Weindtraub explained that the letter of reprimand stated that she had violated Section 114 of the rules of procedure by harassing six MCN employees.
During her opening statement, Rep. Barnett noted that this disciplinary hearing took place approximately two years and four months after the initial complaint was filed. She argued this process was not “speedy nor fair.”
Rep. Barnett claimed that she spoke with Speaker Hicks on the same day as the work session and admitted that her behavior was “out of line.” She also claimed she had a discussion with Mashunkashey within a few days of the work session.
Rep. Barnett argued that because the complaint was filed by Principal Chief Hill rather than Mashunkashey, it was a third-party complaint. She argued that no rule of procedure permits third-party complaints to be considered by the internal affairs committee.
Rep. Barnett also argued that Mashunkashey is not an MCN employee, but rather a civil officer. She continued, stating that Mashunkashey is not subject to MCN Human Resources policies and cannot be fired.
A recording of Mashunkashey’s deposition was played during the hearing. In it, Mashunkashey testified that Rep. Barnett called the work session to discuss issues the Tax Commission had about tobacco smoke shop owners on the Mvskoke Reservation.
In the deposition, Mashunkashey described Rep. Barnett’s comments during the work session as “shocking.”
An excerpt from the work session video recording was presented. The following is a transcript taken directly from a recording of the May 30, 2024 work session.
Barnett: I just have one, an observation. And maybe a request. Because in the Tax Commissioner role you do have quite a bit of authority and you are nominated and confirmed for that position. You work for them. All those people up there, you work for them. I’ve been really disappointed in the lack of communication, lack of respect for our people. I watched you. You walked in this room and you walked right by them and you did not shake a hand, you didn’t say “hello.” You work for them.
Hicks: Point of Order.
Barnett: I just think that hopefully you’ll step up the diplomacy and we can get this resolved, and hopefully you’ll listen to their input because you work for the people of Muscogee (Creek) Nation.
Mashunkashey: I appreciate that, and I do want to state I don’t just work for the smokeshop owners; I work for the Nation as a whole. That’s what I’m trying to do.
Barnett: Yes, ma’am, that’s what I said, for the Muscogee (Creek) Nation people.
Council Discussion
During the discussion, Representative Charles McHenry questioned why Mashunkeshay and Principal Chief Hill were not present. “Where is the complainer at? The one who wrote the complaint?” Rep. McHenry said. “To me, that holds great weight if it’s that important to him, for him to protect his employee, or person he’s writing the complaint about. That should be the utmost importance to him if he wants to hold someone accountable.”
Weintraub explained that Mashunkashey was unavailable. He did not explain why Principal Chief Hill, or a representative from the Executive Branch, was absent.
Rep. McHenry commented that he thought it was unnecessary for the internal affairs committee to bring up a previous letter of reprimand sent to Barnett. Weintraub explained that the previous incident was brought up because in both incidents Rep. Barnett was accused of violating Section 114.
Representative Robyn Whitecloud questioned how the exchange constituted harassment. She stated that “isolated incidents do not rise to the level of harassment.” Weintraub responded, stating harassment can include both isolated incidents and ongoing behavior.
Representative Robert Hufft asked Rep. Barnett to confirm whether she had previously discussed disciplinary options for this incident. Rep. Barnett claimed that she had discussed disciplinary options with Speaker Hicks.
Representative Lora Harjo-King questioned why this process lasted over two years before a disciplinary hearing was scheduled. Weintraub said he did not know why the process to schedule a hearing took two years; however, he had only been working on the case since May.
The council then convened privately to discuss any motions to be made on Rep. Barnett.
Motions on Disciplinary Actions
Representative William Lowe moved that Rep. Barnett violated Section 114 by “interfering or harassing with the performance of tax commissioner Mary Mashunkashey’s duties on May 30, 2024.” It was seconded by Representative Lucian Tiger. The motion required a ⅔ vote and passed 10-5. Representatives McHenry, Thomasene Osborn, Cody Phillips, Whitecloud, and Speaker Hicks voted against the motion.
Rep. Lowe moved to have Rep. Barnett receive a letter of reprimand from the National Council Speaker. The motion passed 10-5; again, Representatives McHenry, Osborn, Phillips, Whitecloud, and Speaker Hicks voted against the motion.
Rep. Lowe then moved to censure Rep. Barnett, a motion that requires a ⅔ vote, but the motion failed 6-9. Representatives McHenry, Osborn, Phillips, Whitecloud, Galen Cloud, James Factor, Harjo-King, Hufft, and Speaker Hicks voted against the motion.
Rep. Lowe made the motion to fine Rep. Barnett $1,000. The motion required a ⅔ vote and failed to pass 6-9. Representatives McHenry, Osborn, Phillips, Whitecloud, Cloud, Factor, Harjo-King, Hufft, and Speaker Hicks voted against the motion.
Rep. Lowe made the motion to expel Rep. Barnett from one Regular Session meeting. The motion required a ⅔ vote and failed to pass 9-6. Representatives McHenry, Phillips, Whitecloud, Factor, Harjo-King, and Hufft voted against the motion.
In an email statement provided to Mvskoke Media, Rep. Barnett said the disciplinary hearing experienced scheduling delays from July to September of this year. She remarked that she was pleased to see that the hearing was public.
When asked if she thought the disciplinary actions were fair, Barnett replied she did not believe any actions could be considered fair because the hearing didn’t follow a clear process.
Moving forward, Rep. Barnett believes disciplinary processes for the legislative branch should be “thoughtfully delineated and once it is, closely adhered to.” She claimed that the legislature “makes up rules as they go” and that representatives and citizens deserve better from the political system.
“I am not sure the outcome of a flawed system can be perceived as fair,” Rep. Barnett stated in an email to Mvskoke Media.
“Constitutionally, the National Council has the authority to discipline its members. But in order to protect the rights of the members, there has to be a clear process. We have no clear process. And our listed punishable offenses are few. For instance, in our Rules of Procedure there is a definition for sexual harassment, but sexual harassment is not listed as a punishable offense.”
The full recording of the discipline hearing can be viewed on the National Council’s website at mcnnc.com and on the council’s YouTube channel.
