The Osage Nation Supreme Court issued a historic opinion Friday that will affect the Osage Minerals Council in relation to how they operate within Osage Nation laws.
In a 32-page opinion, Chief Justice Meredith Drent, Associate Justices Elizabeth Lohah Homer and Drew Pierce ruled minerals council members are subject to the Nation’s Ethics Law and that the council operates within the confines of the Osage Nation and its Constitution.
The opinion delved into the Nation’s governmental history, the 1906 Allotment Act, the formation of the Osage Constitution and the Osage Minerals Council.
“At its core, however, this case involves a historic conflict that has divided the Osage people since 1906 when the United States Congress enacted the Osage Allotment Act. It is a conflict that goes to the very heart of Osage sovereignty and where the power of Osage governance should lie, who should exercise it, and who should benefit from it,” according to the opinion.
Throughout the years a common thread of questions has been discussed at length on message boards, Facebook pages, minerals council meetings, of who owns the mineral estate, does the minerals council adhere to the Nation’s laws, is there still a separate Osage Tribal entity functioning under the 1906 Act – these questions have led to much debate.
In January of 2015, ON Assistant Attorney General Jeff Jones filed a complaint for declaratory judgment against five members of the OMC after they failed to file an affidavit listing gifts received during the previous fiscal year. They were OMC members Cynthia Boone, Everett Waller, Kathryn Red Corn, Joseph Cheshewalla and Stephanie Erwin. The affidavits also required the disclosure of the dollar amounts of each gift and the giver. All elected and appointed tribal officials have to do so each year.
Norman-based attorney David McCullough of Saunders, Daniel & Anderson, LLP, represented the OMC members.
They argued to the Supreme Court they did not have to adhere to the Nation’s ethics law because the ON Trial Court did not have subject matter or personal jurisdiction over the OMC because they were not a governmental body under the ethics law definition and their case should have been dismissed at the Trial Court level. They also argued they were an independent agency and they exist apart from the Nation and only follow federal statute as outlined in the 1906 Act.
The Supreme Court disagreed.
“Agency independence, however, does not mean that the OMC is separate and apart from the Nation nor free of accountability. Neither is it outside the reach of the Nation’s laws. No government official of the Osage Nation whether elected, appointed, or simply employed by the Nation is above the law or outside its reach,” according to the opinion. “This Court will not strike down the hard won effort of the Osage people to make and form their own government and determine its own membership nor will it adopt an interpretation that undermines the stated intent of the [United States] Congress to reaffirm these fundamental rights. The ultimate purpose of all these efforts was to unify the Osage Nation under one system of government, thereby righting a longstanding wrong.”
The Court said it came to their conclusions after they examined the 1906 Act, the Reaffirmation Act, and related federal decisions.
According to the opinion, the Nation has formed three constitutional governments in its past. Twice in the 19th century in 1862 and 1881, and once in the 20th century in 1994. Each time the Nation chose to have different but distinct branches of government. It wasn’t until the 1906 Allotment Act did the U.S. Congress force a form of government on the Nation that consisted of an elected Principal Chief, Asst. Principal Chief and an eight-member council, who was only elected by those who possessed a headright share to the mineral estate.
The Court said the 1906 Act has been acknowledged as legislation created to divide the Nation, to weaken its government and to lead it toward a path of termination.
During the 2004 Osage Government Reform, when the commission was searching for ways to incorporate the mineral estate into the Osage Constitution it was the most “contentious” issue discussed.
“Appellants’ assertion that the Osage Tribe is a separate legal entity from the Osage Nation fails to recognize the Osage Tribal Council’s role in facilitating the Nation’s reorganization under the 2006 Constitution and its efforts to transition from a federally-prescribed government to the form adopted by the Osage People. Appellants’ steadfast adherence to a form of government unilaterally forced upon the Nation against its will by the federal government is not supported by law or fact,” according to the opinion.
The OMC was created by the Constitution; it does not have “a quasi-federal status shielding its members” from the Nation. It is an independent agency within the Nation and has no “existence, power, or authority outside of the context of the constitutional framework of the Osage Nation,” according to the opinion.
The Court reversed in part the Trial Court’s ruling in their Journal Entry of Judgment, paragraphs 7 and 8, calling those paragraphs unconstitutional and remanded the issues back to the Trial Court to rule upon.
“Obviously, the Nation cannot interfere with the rights of shareholders to the income from the Osage Mineral estate, but the Trial Court’s finding that the Nation can dictate ‘how the Osage Minerals Council is to operate’ goes too far,” according to the opinion.
According to Article XV of the Constitution that sets up the OMC, the council can promulgate their own rules and regulations as long as they are not inconsistent with the laws of neither the Nation or with the rules and regulations established by the 1906 Act.
“The Constitution does not confer upon the Congress an overlapping or overriding authority to perform the same duty. While we find that Congress does have the authority to extend laws of general applicability to the OMC and its members, we find no similar authority for the Congress to ‘establish rules on how the Osage Minerals Council is to operate,’” according to the opinion.
Principal Chief Geoffrey Standing Bear called the opinion “a momentous ruling in the history of the Osage people” and said both he and Assistant Principal Chief Raymond Red Corn are headright owners, as are several members of the Osage Nation Congress.
“The Supreme Court opinion and decision shows once again how federal law protects the Osage headright owner’s right to undiminished income from the royalties of the Osage Mineral Estate. The Opinion goes further by showing the extra layer of protection provided by the Osage Nation Constitution of 2006,” Standing Bear said. “At the same time the opinion tells the Osage Minerals Council that they are not separate and apart from the Osage Nation. Because of this the members of the Osage Nation Minerals Council are within reach of the Osage Nation laws.”
A phone call to OMC Chairman Everett Waller was not immediately returned before this story was published. Look for updates on this story at www.osagenews.org.