Principal Chief Geoffrey Standing Bear, Oklahoma Attorney General Mike Hunter, and their legal teams met for over an hour at the Osage Nation Executive Branch in Pawhuska to begin discussions on water rights in the Osage.
“I would like to thank Attorney General Mike Hunter and Maria O’Brien for coming to Pawhuska. We had a good meeting, it’s a good start,” Standing Bear said. “The attorneys will be meeting again in about 30 days in Oklahoma City.”
The meeting is a result of an Oct. 5 letter sent to Standing Bear from O’Brien, Hunter’s attorney who is from New Mexico-based law firm Modrall Sperling. Modrall Sperling has been involved in several cases against the Osage, including Osage Nation v. Irby (2010), and the Osage County wind turbine cases the Nation has fought. O’Brien is part of Hunter’s legal team that successfully negotiated the water rights settlement with the Chickasaw and Choctaw Nations in August 2016.
The letter from O’Brien objected to the Nation issuing its first water-well permit, which the Nation issued according to its 10-page Water Regulations. The permit was issued to the ON Gaming Enterprise Board for five years on Sept. 18 in Skiatook. The Skiatook water well is located just west of the casino on federal trust land. O’Brien said the well permit was “unlawful” and was against the “collaborative approach” the state used with the Chickasaw and Choctaw Nations.
“We look forward to discussions with the Osage Nation regarding legitimate issues that exist, with regard to water rights in Osage County,” Hunter said. “But we’re confident and thoughtful there’s a well-reasoned productive way to work out a resolution to each party’s respective interest.”
When asked whether Hunter intended to negotiate a water settlement like that of the Chickasaw and Choctaw with the Osage, he said the spirit of that settlement is key. The 88-page Chickasaw and Choctaw settlement with the state of Oklahoma give the two Nations a delegate to sit on various planning and technical committees that work with the Oklahoma Water Resources Board (OWRB). Ultimately, the main source of authority lies with the state in the settlement. However, the federal court has jurisdiction over any disputes among the parties.
For example, the settlement language for the Choctaw and Chickasaw when drilling domestic wells on trust lands stipulates the two Nations “shall have no less right to take groundwater from Trust Land for domestic use than what any person has pursuant to state law.” The settlement requires a state-licensed water well driller be employed, the drilling company must comply with state law and when finished they must complete a report to be filed with the OWRB, according to the settlement.
“The spirit of that agreement is something that we would focus on or ask the parties to focus on, not so much the specific terms. When I say the spirit of the agreement, we were able to conclude those negotiations in a way that everybody felt proud, everybody felt their interest had been respected and addressed in a decisive way,” Hunter said. “So, not so much the specific terms but definitely the spirit of that agreement. We sat down, we worked together.”
According to Standing Bear, the Osage believe the U.S. Congress protected the Osage’s 1.5 million-acre mineral estate by federal law in 1906, and no amendments ever changed this status. He believes the water is also protected because it is often essential to the production of oil.
“I agree completely with what Attorney General Hunter says, it’s the spirit of cooperation that we want and we want to emulate that out of the Choctaw and Chickasaw agreement,” Standing Bear said. “The Osage position, however, is that we are unique in our history and our law, from any other tribe in Oklahoma. That is one of our starting points and that is going to be discussed in the next many meetings to come.”
For more information about the Nation's Water Regulations, visit the Environmental and Natural Resources Department website at https://www.osagenation-nsn.gov/what-we-do/environmental-natural-resources