The United States Supreme Court will not hear the Osage Nation’s appeal in the reservation status case, which ends the 11-year-old legal battle with the Oklahoma Tax Commission on whether the Nation’s reservation was disestablished.
On Monday (June 27), the High Court filed a summary disposition of cases being considered. The case (Osage Nation v. Irby, et al.) is listed among those cases with petition denials, thus allowing the federal appeals court decision to stand. No explanation is listed for the Nation’s petition denial.
“I am disappointed with the Supreme Court’s decision to allow a clearly wrong decision to stand, but this does not end the Osage Nation’s efforts to protect our homelands,” Principal Chief Red Eagle said. “We will continue to exercise our inherent rights as a sovereign nation.”
In a statement released after the petition denial was made public, Chief Red Eagle stressed that this decision does not change how the Nation operates in any manner.
“No tribal programs, services or business enterprises are affected by today’s ruling,” said Chief Red Eagle. “The Osage Nation will continue to operate programs and services that benefit not only Osage tribal members, but also our local communities and the state of Oklahoma.”
The petition denial comes one month after the acting U.S. Solicitor General filed a brief recommending the justices to not hear the case. The nine Supreme Court justices initially considered the case Feb. 18, but instead invited acting Solicitor General Neal Katyal to opine on the case first. He filed his petition denial recommendation on May 27.
Often called “the 10th justice,” the solicitor general is the government's representative at the Supreme Court, advising the attorney general on legal matters and deciding whether the government will appeal adverse lower court rulings.
Despite the Nation’s petition denial, Chief Red Eagle’s office is “confident” the efforts to put the lands holding three of the Osage Million Dollar Elm Casino properties into federal trust status will be successfully completed within a week. At issue are the lands where the Tulsa, Skiatook and Ponca City casinos were built, which were not initially placed into trust status. Gaming revenue is the Nation’s largest income source.
“We are confident that the three casino lands will be placed into trust by the federal government in a matter of days, rather than weeks or months,” said Chris White who is executive director of governmental affairs for Chief Red Eagle’s office. “(U.S.) Department of Interior Assistant Secretary Larry Echohawk’s staff and those at the Interior department’s Office of Indian Gaming have worked very hard on this matter, as well as local Bureau of Indian Affairs officials.”
On Monday June 27, White said Chief Red Eagle has scheduled a trip to Washington, D.C. during the week “and, if necessary, plans to meet with Interior department and Department of Justice officials to encourage that the land-into-trust applications are approved the week [of June 27th].”
The federal case against the Oklahoma Tax Commission began 11-years-ago when the Nation sued the OTC for taxing Osage citizens living on land that the Nation claimed was still, and had always been, Reservation land, also known as the boundaries of Osage County. Since that time the case has been to the 10th Circuit Court of Federal Appeals twice, in which the federal court denied to hear a rehearing of the Nation’s case.
The Nation appealed to the Supreme Court in October of last year.
The Nation made the argument that because of existing conflicts in opinions from circuit and state courts, the Supreme Court needs to make a defining rule to determine whether Native American Reservations were intended to be disestablished by the U.S. Congress when allotment-era legislation did not specifically say so.
In recommending the reservation status case denial last month, Katyal’s brief states: “The unique statutory and historical circumstances of Oklahoma tribes in general, and the Osage Nation in particular, make this case an especially poor vehicle of addressing issues of reservation disestablishment… The reservation question, moreover, need not be addressed in this case because the lower courts reached the correct conclusion on the ultimate question of personal-income tax immunity for Osage members living on fee land in Osage County.”
On the question of the Nation’s Reservation, Katyal writes: “It is unclear whether Congress went so far as to disestablish the Osage Reservation.” The brief later states: “Provisions of the Osage Allotment Act and the Oklahoma Enabling Act expressly authorized certain state authority within the original Reservation boundaries.”
U.S. District Judge James Payne ruled in February of 2009 that Osage Nation employees are not exempt from paying state income taxes and that Osage County is not the Osage Reservation’s boundaries. The Nation asked him to reconsider his “lousy decision,” as then-Principal Chief Jim Gray put it at the time, but Payne let the ruling stand. Payne’s decision came by summary judgement, which prevented the Nation from going to trial, prompting the appeals efforts to the higher courts.
Despite the petition denial, Chief Red Eagle is calling for for Osage County citizens, both Osages and non-Osages, to continue their efforts for unity.
“I reaffirm my pledge for reconciliation and unity for the benefit of all our tribal citizens, as well as our neighbors,” Red Eagle said in his statement. “The Osage Nation’s relationships with federal, state and local governments will continue and will become even stronger.”