The chief judge for Osage County expects to rule by Sept. 8 whether Osage County should be considered a reservation for the purpose of prosecuting Native Americans within its borders.
The battleground is set in a criminal case against Dustin Colby Phillips, a 34-year-old member of the Cherokee Nation who is accused of domestic assault, kidnapping and protective order violations that took place in Osage County in Skiatook. The assault occurred in early January of 2019, but the Osage County District Attorney’s Office did not file charges for 10 months. Phillips has a felony drug record and served a few years in prison. He has also had numerous protective orders filed against him but the state has not filed domestic assault charges against him – including in a Vinita case in April in which he allegedly fractured a woman’s eye socket.
The state of Oklahoma has made much fodder of the “cataclysm” and alleged chaos it says befell the state after the U.S. Supreme Court issued its decision in McGirt v. Oklahoma, a ruling that affirmed the existence of the Muscogee (Creek) Nation reservation and declared the state had no jurisdiction to prosecute Native Americans who commit crimes within the reservation boundaries, which encompass much of Tulsa.
“Subjecting an entire county to Indian country laws for the first time in over 100 years creates a seismic shift in jurisdiction that ripple through every aspect of life in Oklahoma,” wrote Assistant Attorney General Bryan Cleveland in a brief in the Phillips case. “The immediate result of such a finding in a criminal case like this one is that some crimes go unprosecuted as the federal government scrambles for staff and resources. The cataclysm does not end with criminal jurisdiction, either: questions over authority over everything ‘from zoning and taxation to family and environmental law’ are raised in an Indian country decision.”
In the Phillips case, however, justice has been delayed by the state and might be better served by U.S. District Court, said Olivia Gray, an Osage who until last year ran the Nation’s domestic violence prevention program and counseling center – and worked with the victim named in the Phillips case. Gray said that domestic violence cases in the Osage tend to be treated lightly, sentences are deferred and plea agreements hashed out without input from victims – as required under Marsy’s Law, which ensures victims certain rights.
Reservation status at heart of case
On July 11, Assistant Attorney General Cleveland faced off with lawyers for the Osage Nation and before Osage County District Court Judge Stuart Tate, trying to persuade him of their diametrically opposed views: Cleveland argued that the Osage Reservation was disestablished in 1907 by the Oklahoma Enabling and Osage Allotment acts; and the Nation countered that its reservation was never dissolved and that an adverse ruling by the federal 10th Circuit Court of Appeals in 2010 was a misguided decision that has been displaced by the U.S. Supreme Court’s 2020 ruling that affirmed the existence of the Muscogee (Creek) Nation reservation.
The McGirt case reversed the state’s longtime habit of prosecuting crimes involving Native American defendants within the historic boundaries of the Creek reservation; the ruling was subsequently extended by the Oklahoma Court of Criminal Appeals to the reservations of the Five Civilized Tribes. Pre-McGirt, federal prosecutors handled major crime cases against Natives when the crime occurred on restricted or trust land and tribal courts generally prosecuted misdemeanors on such land.
Thus far, the changes have not been applied to the historic Osage Reservation because of the 2010 ruling by the 10th Circuit in Osage Nation v. Irby. In that case, the Nation unsuccessfully sought a judgment that its reservation had never been disestablished, and that state therefore did not have power to levy income tax on tribal members who lived and worked within the reservation’s borders.
“Irby’s foundation has been changed by McGirt,” one of the Nation’s attorney, Eugene Bertman, told Judge Tate. “Today, the facts are different.
“The court has to look at the new rules under McGirt.”
The Nation has long had a consistent refrain in arguing that its reservation still exists: Congress has never expressly disestablished it, as required.
Bertman pointed to five treaties that the United States had with the Osage as the tribe ceded land in 1808, 1818, 1825, 1835 and 1865 as settlers infringed on their homelands in present-day Missouri, Kansas, Oklahoma and Arkansas: Every one contained explicit language that it was giving up land, using the words “cede,” “cession,” “forever quit claim,” and “relinquish.”
State hangs hat on McGirt precursor
Cleveland, however, pointed to another 10th Circuit case, Murphy v. Royal. That case paralleled McGirt but hung in the Supreme Court with a 4-4 vote because Justice Neil Gorsuch recused himself; he had heard the case before he was elevated from the 10th Circuit to the Supreme Court.
Murphy predated McGirt by nearly two years. In 2017, the 10th Circuit ruled that Congress had never disestablished the Creek reservation but mentioned the Osage Nation, harking back to the 2010 Irby case: “In Osage Nation [v. Irby], we concluded Congress had disestablished the Osage Reservation, despite an absence of clear textual evidence, because we found ‘the legislative history and the negotiation process [made] clear that all the parties at the table understood that the Osage reservation would be disestablished by the Osage Allotment Act.’”
Cleveland said that ruling stands, and that the Osage Nation is barred from relitigating the same issues. “McGirt affirmed Murphy, which drew a line between the Five Tribes and the Osage,” Cleveland said. “… They are attempting to eviscerate state jurisdiction over an entire county.”
A county, not a reservation
To boot, Cleveland said that the Oklahoma Enabling Act specified that the Osage Indian Reservation would be a separate county. “In 1907, the U.S. Census flipped from Osage Reservation to Osage County,” he said. “It’s a county under Oklahoma law.”
Hogwash, responded the Nation through its attorneys. Irby’s findings as well as those in a 1984 case called Solem v. Bartlett that addresses the disestablishment of Indian reservations, Bertman wrote in the Nation’s brief, have been “repudiated” by McGirt.
For instance, Solem directed that determining whether a reservation had been dissolved required a three-step process. The first step was to determine if Congress had explicitly disestablished (or affirmed) a reservation and, if not, a court could look at legislative history and the treatment of a reservation following the enactment of law.
Steps two and three have been obliterated by McGirt, Bertman wrote:
“McGirt does not mince words: there is only one step – the text of the statute … The United States Supreme Court explains that any use of extratextual considerations outside the statute passed by Congress is mistaken.
“Bluntly, the United States Supreme Court explains: ‘To avoid further confusion, we restate the point. There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome these terms. The only role such materials can properly play is to help “clear up … not create” ambiguity about a statute’s original meaning.’”
In Irby, court found language ambiguous
In its Irby decision, the 10th Circuit found that the Osage Allotment Act was ambiguous as to whether the reservation had been disestablished. In fact, it said that Osage act had three clear indicators of continued reservation status, clauses that said: The Secretary of the Interior was authorized to set aside land for tribal purposes; tribal members could obtain individual allotments before non-Indian settlers could; and the mineral rights were reserved for the tribe as a whole. In fact, the Osage allotment opened no land for settlement by non-Osages.
Because it could cite no specific language in the allotment act, the 10th Circuit turned to steps two and three under Solem, the very steps that McGirt said are barred, according to Bertman.
In Irby, the 10th Circuit also wrote about the allotment process for the Creek Nation and Five Civilized Tribes, a process it said extinguished those reservations – the very reservations that McGirt and the Oklahoma Court of Criminal Appeals now recognize as extant.
Irby went on to cite anecdotal statements by Osage leaders suggesting that allotment would dissolve “the reserve.” Some of those statements came from the historical record, some from scholarly articles written well after allotment.
Irby also noted that Osage County over the years had lost “its Indian character,” thus supporting the nation that the reservation had been diminished.
That same is certainly true for the Creek reservation the Supreme Court ruled in McGirt is intact; it comprises a large swath of Tulsa.
Judge Tate asked lawyers in the case to submit proposed findings of facts in the case by Aug. 11 and said he would issue a written decision by Sept. 8, when he will hold another hearing at 2:30 p.m.
