Osage Nation Trial Court Associate Judge Lee Stout has ordered the ON Attorney General’s office to renew its efforts to obtain DNA samples in the membership case of Osage Nation v. Reta Marie Lintner.
On Dec. 6, he overruled the motion made by the AG to vacate the order and ordered the AG to obtain DNA samples from 11 known descendants of Paschal F. Canville, the original allottee Linter and 15 members of her family claim to be descended from. The intent of the DNA tests are to show whether Lintner shares genetic markers with Canville’s legitimate descendants, proving Lintner is Canville’s descendant and that she’s Osage.
The AG’s office has questioned whether the trial court can order DNA testing because it is the AG’s position that DNA evidence does not qualify as proof of membership under the ON Membership Act.
According to the Act, a person must prove they are of lineal descent from an original allottee from the 1906 Osage Allotment Act. Proof of lineal descent includes: “certified original birth certificates, certified death certificates, certified paternity affidavits, certified adoption records, certified marriage certificate or Bureau of Indian Affairs issued Certificate of Degree of Indian Blood [CDIB] card.”
Stout referred to a “troubling” deposition given by Membership Director Sarah Oberly. He said according to page 61, line 10, of the deposition, Oberly says the Nation accepts DNA as proof of membership. ON Assistant Attorney General Clint Patterson said that was only in cases to prove paternity.
“The membership [department] clearly accepts DNA,” Stout said.
Counsel for Lintner, Brad Hilton of the Skiatook-based Hilton Law Group, said he doesn’t know who the AG’s office has tried to contact of the 11 possible descendants of Canville, or how hard they have tried. He said he and his co-counsel are willing to write letters and make phone calls to persuade the descendants to submit to the non-invasive DNA testing. The 11 descendants live outside of Oklahoma and they would report to a facility within their city or state and provide a sample of their saliva.
“While the time that the Nation is dragging their feet, our clients have lost their rights … the expense on our clients is huge when the Nation already has their lawyers on staff and it’s built into their overhead,” Hilton said. “This has become arbitrary and capricious and you [Stout] have the power to shut it down.”
Stout said Lintner’s case is a case of first impression and he would not be shutting it down.
“The Hilton office can contact all the descendants involved,” he said.
Patterson said four descendants of Canville have said they will submit to a DNA test. He said the DNA testing lab said the results would be more accurate if they had all 11 descendants tested, instead of just four. Stout said whether it was four descendants or 11, the DNA tests are one aspect of the case and after the samples are collected and Bio-Gene DNA Testing LLC conducts the testing, they could discuss the results.
“We’re trying to clean up a mistake that somebody else forced on us,” Stout said. “And we owe it to all involved.”
The petition for Lintner’s removal was first filed in April 2016 after the membership department staff reviewed Lintner’s file, or a file of a family member, and noticed a notation that said the person was not eligible for a CDIB.
The proof of lineal descent provided by Lintner’s legal team includes affidavits over 100 years old. They claim that Lola C. Brown was the illegitimate daughter of Osage Allottee Paschal F. Canville. The affidavits are from Canville himself, the doctor who delivered Brown, a neighbor and a stagecoach driver. Brown was born in 1888.
Patterson said the affidavits provided by Lintner are not the type of affidavits accepted by the Membership Department today. According to the AG’s office, both the Oklahoma District Court for Osage County and the U.S. Department of Interior determined Brown is not the descendent of Canville.
“We don’t object to DNA,” Hilton said.