The Fourth Osage Nation Congress voted down a bill Nov. 5 that would have expanded jurisdiction to prosecute non-Natives on the Nation’s former reservation lands.
ONCA 15-03 (sponsored by Congresswoman Alice Buffalohead) asked the congress to expand jurisdiction over non-Indians within the Osage Reservation and former reservation lands. If the bill had been passed, Principal Chief Geoffrey Standing Bear said he would have filed a court order in Osage Nation Trial Court against Enel Green Power North American, Inc., currently constructing wind turbines north of Highway 60 and send the Osage Nation Police Department to stop construction.
“The Osage Congress has chosen not to allow the Osage Nation courts or the police to protect our minerals estate. That is their choice,” Standing Bear said. “I have confidence in the Osage Court and our Osage Police. They deserved the opportunity to try to halt the wind farms.”
But would it have worked? And what would the repercussions to the Nation have been from ENEL and other non-Indian landowners? Those were the questions and uncertainties expressed by two Osage Minerals Council members and the Speaker of the Congress Maria Whitehorn at the Government Operations Committee meeting Nov. 4.
Minerals Councilwoman Cynthia Boone said the OMC wasn’t “sitting on their hands” when it came to stopping the wind turbine construction.
“On Oct. 29 we had a special meeting with our attorney … we requested the United States to take action in this emergency situation, and since our trust responsibility is a federal fiduciary trust responsibility, this resolution was passed 8-0,” Boone said.
Minerals Councilwoman Stephanie Erwin said there are currently too many legal cases involving oil producers, land owners and Osage headright holders and the passage of expanded jurisdiction for the Nation would only cause confusion and possible harm at this point.
“I feel like this is an experiment to see if we have jurisdictional authority over non-Osages,” said Whitehorn. “I’m concerned with the ramifications. We’re going into this unknown territory, we try it, and it doesn’t work – either we’ll be involved in litigation in other courts, or we’ll have to say, oops, we were wrong … I just want to know what you think will happen to us?”
Buffalohead said she didn’t have a crystal ball to see what will happen but she felt that the Nation should exercise its sovereign rights and that the legislation wasn’t aimed at affecting the minerals estate or minerals council issues, it was to encompass non-Indians who commit crimes against Osages.
She said she’s seen too many cases where non-Indians committed crimes against Osages and county and state courts didn’t care to take the cases.
“Saying you have sovereignty and exercising it are two different things,” said Congressman RJ Walker. “This would be an action of sovereignty. This was something that was initiated by Chief Standing Bear … and I respect him (and his career in law).”
Voting “no” on ONCA 15-03 were Congress members Shannon Edwards, John Jech, John Maker, Archie Mason, Ron Shaw, William “Kugee” Supernaw and Maria Whitehorn. Voting “yes” were Congress members Alice Buffalohead, Otto Hamilton, Angela Pratt, RJ Walker and James Norris.
BIA silence
The first wind turbine has gone up north of Highway 60 and the Bureau of Indian Affairs has done nothing to stop it.
BIA Osage Agency Superintendent Robin Phillips sent a letter to Enel Green Power North American, Inc., on Sept. 29, ordering the Italian company to halt construction after a pit 60 feet wide and 30 feet deep was discovered and the limestone underneath the surface had been crushed and piled around the wind turbine foundation. The Osage Nation owns all the minerals under the surface to make up the Osage Minerals Estate.
Without a Sandy Soil Permit granted from the Osage Agency, construction cannot proceed, according to a letter sent to Francesco Venturini, ENEL president.
“Failure to comply may result in this matter being forwarded to the Office of the Field Solicitor for further action,” according to the letter.
Since Sept. 29, no letter or action has come from the BIA in stopping ENEL from further construction.
Three lost cases
Currently, the Nation has lost three court cases in the wind farm fight. One at the federal level two years ago and two at the state level. Standing Bear said that the only option congress has given him is to appeal three lost cases. He said he was hoping to open up other avenues against ENEL with ONCA 15-03.
“I guess they don’t like self governance either,” Standing Bear said. “I wish these people (congress) would look at other tribes like the Chickasaw, Choctaw, Cherokee, see what they do. They (congress) just want to live in the past. I want to move forward … I will be resubmitting this legislation, I won’t be giving up.”
[Editor’s Note: This story was updated to reflect the congressional vote count on Nov. 6]
By
Shannon Shaw Duty
Original Publish Date: 2014-11-05 00:00:00