The latest turn in the case that questions the Osage tribal membership of Reta Marie Lintner and about 14 of her relatives may require the intervention of the Osage Nation Supreme Court.
On Oct. 4, ON Assistant Attorney General Clint Patterson asked the ON Trial Court for a motion to certify order for Interlocutory Appeal in the case Osage Nation v. Reta Marie Lintner. An Interlocutory Appeal asks the court to send an undecided issue within a case to an appellate court for review before the case is concluded in the lower court. In this instance, Patterson is asking the Trial Court to send the question of whether the court can order DNA testing to allow DNA evidence as lawful proof of membership under the Osage Nation Membership Act and requests a stay in further proceedings of the case until the Supreme Court rules on the issue.
He argues that under the ON Membership Act at 21 ONC 1-303, Rule 3(B), DNA evidence is not an accepted form of proof of lineal descent of the 1906 Roll of Osages. In fact, the membership law states that the “only accepted forms of proof of lineal descent are: 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.”
Counsel for Lintner, Brad Hilton and Aubra Drybread of the Hilton Law Group, did not respond to the motion, according to the Court Minute of Oct. 4. However, Lintner has stated in the past that she would submit her DNA for testing.
According to Patterson’s 12-page motion, he argues that a stay in the case while the Supreme Court reviews the issue of DNA will avoid costly DNA testing itself, and costs of a pre-trial and trial motions resulting from DNA testing.
The petition for Lintner’s removal was first filed in April of last year after the Membership Office staff, when reviewing Lintner’s file or a file of a family member, noticed a notation that said the person was not eligible for a CDIB.
“Upon further inquiry, the Membership Office discovered the BIA formally refused to issue a CDIB to Respondent, or their direct lineal family member. Through research dating back to the 1890’s and subsequent findings of fact, the BIA concluded Respondent cannot be determined to be a lineal descendant of an Osage listed on the 1906 Roll and does not have Osage Indian blood,” according to the motion.
So far, the proof of lineal descent provided by Lintner’s legal team does not meet the requirements of the ON Membership Act, that is why the judge turned to DNA testing. Lintner only has personal affidavits that allege her grandmother Lola Clawson Brown was the illegitimate daughter of Osage Allottee Paschal Canville, even though on Brown’s death certificate it lists J.G. Clawson as her father.
“This prompted the Petitioner, at an early stage of this case, to move for summary judgement, stating that Respondent could not prove lineal descent by any of the accepted forms of proof listed in the Membership Act,” Patterson wrote in the motion.
The summary judgement was denied because “material facts are in dispute.”
The certified descendants of Original Allottee Paschal Canville, when contacted, refused to submit their DNA to a DNA testing facility so Lintner could be tested to see if she had the same genetic markers as the Canville descendants.
DNA testing is accepted by the Nation in cases of paternity disputes and in the Nation’s Child Support Code at 2 ONC section 8-204, it “allows for genetic testing and the establishment of a Paternity Code,” according to the motion.
If the judge grants the motion, this will be the first case the Supreme Court hears on whether DNA evidence is admissible as proof of lineal descent, Patterson wrote.
The next hearing is set for Dec. 6 at 1:30 p.m. at the ON Trial Court in Pawhuska.
By
Shannon Shaw Duty
Original Publish Date: 2017-11-02 00:00:00
