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In wake of McGirt, Nation maintains argument for reservation status

The Osage Nation is quietly pressing the case that its reservation has never been disestablished ­– by helping lawyers in criminal cases raise the issue.

Among tribes in Oklahoma’s former Indian Territory, Osage stands apart in the wake of the U.S. Supreme Court’s 2020 ruling that declared the Muscogee (Creek) Nation’s reservation had never been disestablished – and that for decades the state of Oklahoma had been wrongly prosecuting Native Americans who commit crimes within historic Creek boundaries.

Because of a 2010 federal decision that the Osage reservation had been dissolved, the Nation has been unable to directly assert its own reservation status and instead has to back-door arguments through criminal cases.

The Nation’s latest foray into a criminal case prompted Oklahoma Attorney General John O’Connor last week to file an appearance in the prosecution of an Osage man charged with kidnapping, domestic assault and protective order violations in Skiatook.

“We’re getting into Constitutional issues here,” said Principal Chief Geoffrey Standing Bear. “These are not just criminal cases, these are signature U.S. and State of Oklahoma constitutional issues.”

In the wake of the McGirt v. Oklahoma ruling that affirmed the existence of the Creek reservation, the Oklahoma Court of Criminal Appeals has deemed that the reservations of the other four of the Five Civilized Tribes were also never disestablished. That means that any Native American who commits a crime within those historical borders should be tried in federal or tribal court. 

The decision is also expected to have consequences outside criminal matters, including over the state’s power to tax and to regulate such industries as mining.

The Osage Nation has long maintained that its reservation, which comprises all of Osage County, was never disestablished – something that the Supreme Court ruled can only happen by an explicit act of Congress.

Osage Nation v. Irby

In 2010, the Nation lost a federal court battle, Osage Nation v. Irby, in an effort to exempt tribal members who live and work in Osage County from paying state income tax.

Ultimately, the 10th Circuit Court of Appeals ruled that the Osage reservation had been disestablished – even though there was never any Congressional act to do so. That decision was effectively upheld when the U.S. Supreme Court refused to hear the case on appeal by the Osage Nation.

In Irby, the 10th Circuit found that neither the 1906 Osage Allotment Act nor the Oklahoma Enabling Act, which formed the state from the Indian and Oklahoma territories, addressed the continuation or end of the reservation.

The appellate court found the language “ambiguous,” then said it would “infer” disestablishment “despite statutory language that would otherwise suggest unchanged reservation boundaries.”

The 10th Circuit based that inference on what folks back in the early 1900s believed would happen after allotment, the changing demographics within the reservation boundaries, the sale of allotted land to white settlers, and the general goal of the United States at the time to dissolve Indian reservations.

Although the McGirt decision never mentioned Irby, some of the language Justice Neil Gorsuch used in the majority McGirt opinion seems spot-on for Osages.

“…Oklahoma resorts to the State’s long historical practice of prosecuting Indians in state court for serious crimes on the contested lands, various statements made during the allotment era, and the speedy and persistent movement of white settlers into the area,” Gorsuch wrote. “But these supply little help with the law’s meaning and much potential for mischief.

“While there can be no question that Congress established a reservation for the Creek Nation, it’s equally clear that Congress has since broken more than a few of its promises to the Tribe.”

In a passage that evokes much of the grief cast upon Osages in the 1910s and ‘20s, Gorsuch added: “Maybe, as Oklahoma supposes, it suggests that some white settlers in good faith thought the Creek lands no longer constituted a reservation. But maybe, too, some didn’t care and others never paused to think about the question. Certain historians have argued, for example, that the loss of Creek land ownership was accelerated by the discovery of oil in the region during the period at issue here. A number of the federal officials charged with implementing the laws of Congress were apparently openly conflicted, holding shares or board positions in the very oil companies who sought to deprive Indians of their lands. … And for a time Oklahoma’s courts appear to have entertained sham competency and guardianship proceedings that divested Tribe members of oil-rich allotments.”

Notwithstanding the parallels between Creek and Osage, the 2010 decision has hobbled the Nation’s pursuit of a new ruling that would reverse Irby and declare Osage County a reservation.

Friend of the Court

Under a legal doctrine called “stare decisis,” the Nation itself cannot relitigate a decision that has already been made – no matter how wrong that decision might have been.  In effect, the Nation needs to take a back-door approach rather than risk having two impenetrable locks put on the front door.

Last month, the Nation sank its legal teeth into the case of Dustin Colby Phillips, a Skiatook man accused of kidnapping and domestic abuse.  The charges against him are pending; he has not been convicted.

The Nation entered the case to file a friend of the court brief defending its reservation interests.

The Nation’s attorneys Eugene Bertman and Brown Wallace of Norman, and Attorney General Clint Patterson argued that Osage County District Court must follow the case law established by McGirt, both by the U.S. Supreme Court and the state Court of Criminal Appeals – the highest court in Oklahoma for criminal matters.

“As recognized by the OCCA, McGirt has effectively overruled all prior cases involving state criminal jurisdiction in Oklahoma on reservation lands,” the Nation’s brief says.

“… McGirt rejects the long-standing assumptions that Indian Country in the form of reservations did not exist in Oklahoma, and overturned the OCCA’s precedent to the contrary.”

In Irby, the brief notes, U.S. District Court Judge James H. Payne ruled flatly that “There are no reservations in Oklahoma” and that “all Indian reservations (in Oklahoma) have ceased to exist.”

The Nation’s brief continues: “On appeal, the Irby Court repeated the refrain and explained that the Muscogee (Creek) Reservation, and those of other Native Nations in Oklahoma, had been disestablished. …

“McGirt teaches otherwise.”

Phillips’ attorney, Douglas Dry of Tahlequah, is equally adamant. “The 10th Circuit’s 2010 Irby decision holding that the Osage Reservation had been disestablished is simply not good law,” Dry wrote.

 “The Osage Nation is no more disestablished than the Muscogee Nation. Both are intact …

“McGirt eviscerated Irby for all practical purposes.”

Oklahoma Attorney General

Last week, an assistant to Oklahoma Attorney General John O’Connor filed a motion to intervene in the criminal case against Phillips, too, in order to argue against the Osage Nation and its reservation status. Judge Tate allowed the state to enter the case and gave it a deadline of March 15 to file a brief on the issue. A hearing is scheduled for March 29.

Last April, the Nation filed another friend-of-the-court brief on behalf of Louis R. Young, a member of the Muscogee (Creek) Nation who was convicted of murder in the 2005 roadside shooting death of Jerry Wayne Doyle in North Tulsa.

No one from the state had informed the Nation that McGirt was being raised by Young, who initially represented himself and filed neat, hand-written motions.

The Nation learned about Young’s case the day after Osage County District Court Judge Stuart Tate ruled, based on Irby, that the Osage reservation had been dissolved.

“The crimes resulting in Defendant’s conviction occurred in Osage County, not Indian Country,” Tate wrote.

In September, Young’s appeal – and the Osage Nation’s legal effort to re-establish its reservation status – hit a dead end. By then, the Court of Criminal Appeals had ruled that McGirt would not be applied retroactively, but only in cases where judgment was not yet final.

But the arguments were never ruled upon. Instead, the OCCA’s refusal to apply the law retroactively left the Nation – and Young – in the cold. 

High Court

On Monday, the U.S. Supreme Court denied hearings for three Oklahoma cases that challenged the OCCA’s bar on retroactively applying McGirt to old, adjudicated cases. That means the ruling will stand – a victory for the state of Oklahoma.

“We are hopeful that this is the first step in having the McGirt decision overturned or clarified and limited. Even without retroactive application, McGirt has opened prison doors and let violent criminals go free,” state Attorney General O’Connor said in a press release.

The high court is thus far silent on other requests the state is pressing, including for a full reversal of McGirt and whether the state should prosecute non-Indians who commit crimes against Native Americans on reservations.

Although the Supreme Court has historically been loath to revisit cases it has decided, the addition of Amy Comey Barrett to the high court could swing the case; McGirt was a 5-4 decision with conservative Gorsuch as the tiebreaker.

If the case is revisited, Gorsuch is likely to be an impassioned defender of the McGirt case and critic of Oklahoma’s stance.

“The persistent unspoken message (from the State of Oklahoma) here seems to be that we should be taken by the ‘practical advantages’ of ignoring the written law,” Gorsuch wrote in McGirt.

“How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law … “[T]he magnitude of a legal wrong is no reason to perpetuate it.”


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Louise Red Corn
Louise Red Corn has suffered from wanderlust for decades: She has lived and worked as a journalist and photographer in Rome, Italy, New York City, Detroit, Kentucky, Mississippi and Oklahoma, where she published The Bigheart Times for 12 years. She loves diving in-depth into just about any topic but is especially fond of covering legal issues, perhaps because her parents were both lawyers. She is married to Assistant Principal Chief Raymond Red Corn, who enticed her to move to the Osage Reservation in 2004. She and her husband live south of Pawhuska with one extremely large dog named Max, one extremely energetic dog named Pepper, and, if he bothers to make an appearance, a surly cat named Stinky.

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