Twenty-four years after it was filed, and 14 years since it was decided against the Osage Nation, a federal lawsuit in which the tribe challenged Oklahoma’s power to levy income tax upon its members who live and work on the tribe’s reservation is stirring back to life.
At the end of March, a federal judge gave the go-ahead for the U.S. Department of Justice to weigh whether it should file a friend-of-the-court brief in the case known as Osage Nation v. Irby, Constance Irby having been the chairman of the Oklahoma Tax Commission when the original suit was filed in 2001.
The United States, says a notice from Adam Gustafson, an acting Assistant Attorney General with the DOJ, has a clear interest in the case, but “due to the change in personnel and the press of other matters, including those associated with the recent change in administration,” it needs until late May to decide whether to jump into the case and to get permission to do so.
On March 27, U.S. District Court Judge John D. Russell gave the United States the OK and set a deadline of May 30 for the DOJ to file a friend-of-the-court or amicus brief.
The Nation took aim at the state in 2001, claiming tribal members were not subject to paying income tax if they lived and worked on the reservation, a case the tribe lost badly when, 10 years after the case was filed, the 10th Circuit Court of Appeals flatly ruled that the Osage reservation had been implicitly disestablished even though the U.S. Congress had never voted to dissolve it.
Fast forward nine years to 2020, when the U.S. Supreme Court issued its ruling in McGirt v. State of Oklahoma, a case that drastically altered the previous status quo.
The High Court ruled in McGirt that the Muskogee (Creek) Nation reservation still existed because Congress had never explicitly dissolved it. Without a clear and unequivocal vote by Congress, Justice Neil Gorsuch wrote in McGirt, disestablishment didn’t happen.
The Irby and McGirt decisions were nine years and worlds’ apart for the Osage Nation, which saw them as contradictory: McGirt said disestablishment could only occur with a vote of Congress, while Irby glossed over the lack of a congressional vote disbanding the Osage Reservation and relied instead on modern-day historians to opine about what was intended decades earlier.
The Nation tried to challenge what it saw as a flawed decision in Irby by filing amicus briefs in Osage County criminal cases involving Native Americans that it hoped would prompt the Oklahoma Court of Criminal Appeals to recognize that the Osage Nation’s reservation remained intact – contrary to Irby.
“Irby cannot be reconciled with the Supreme Court’s subsequent decision in McGirt …” the Osage Nation argued in court filings. “In McGirt, the Supreme Court held that disestablishment requires ‘explicit’ statutory language expressing a ‘clear and plain’ intent to disestablish a reservation, and that reliance on ‘extratextual [sic] sources’ for purposes beyond clarifying the meaning of ambiguous statutory terms is improper.
“Under McGirt, ‘there is only one place we may look: the Acts of Congress.’”
The Osage Nation argues that its reservation is more clearly a reservation than the Creek reservation because the Osage Allotment and Oklahoma Enabling acts, both dating to June 1906, contain specific mentions of the Osage Reservation – and never hint at disestablishment.
To boot, federal courts and Congress have repeatedly reaffirmed since 1906 that the reservation existed, including a stipulation of fact in the massive 2011 Osage trust case against the government that “the Osage Reservation encompasses all of present-day Osage County, located in northern Oklahoma, and covered approximately 1.47 million acres.”
In Irby, the Nation adds, “The Tenth Circuit … did precisely what McGirt now forbids – it usurped congressional authority.”
The Osage Nation also points out that since McGirt, the Oklahoma Court of Criminal Appeals – the highest appellate court in Oklahoma for criminal matters – has extended the ruling to the benefit of several other tribes in Eastern Oklahoma, leaving the Osage siloed because of Irby and a legal doctrine called stare decisis – which dictates that courts adhere to precedent, or rulings and decisions that have already been established. Some 43 percent of Oklahoma is tribal reservation land, a fact that the Supreme Court has acknowledged, according to the Nation’s brief.
“Oklahoma has no basis to contend that it is surprised by the obvious argument that the Osage should be treated on a par with other tribes in Oklahoma,” the tribe’s brief says. “… In McGirt, Oklahoma told the Supreme Court that its ruling would extend to other tribes in Oklahoma, relying on that expectation as a basis for arguing that the Court should not rule in favor of the Creek Nation.
“The Court squarely rejected that argument, [noting]: ‘the magnitude of a legal wrong is no reason to perpetuate it.’”
In its response to the Osage Nation, the state argues primarily that the tribe’s efforts to reopen the Irby case are unreasonably tardy, coming 16 years after final judgment was entered against the Nation.
While the Nation did raise its arguments in state cases, it failed to do so in U.S. District Court, the state argues.
“Whether raising the same argument in other forums was a deliberate strategic decision or otherwise is irrelevant,” the state wrote. “Plaintiff [the Nation] not only knew of the alleged grounds for relief asserted in its motion for several years, but also articulated ‘essentially the same arguments’ in multiple unrelated proceedings while neglecting to raise such arguments in this Court. This establishes that Plaintiff’s motion was not filed within a reasonable time in this court.”
The state also raised the specter of Osage County’s criminal justice system being disrupted by an adverse ruling for the state. According to an affidavit from First Assistant District Attorney Brett Mike, more than 800 criminal charges have been processed against Native Americans in Osage County since McGirt was decided in 2020. Fifteen of those cases were referred to the District Attorney’s Office by the Osage Nation Police Department, Mize said.
The Nation dismissed the state’s accusations of tardiness as “unconvincing”:
“[C]laims of prejudice from a four-year filing ‘delay’ pale in comparison to the profound prejudice the Nation will suffer if the Irby judgment permanently deprives it of a congressionally established Reservation that was never congressionally disestablished.”
Tribal lawyers write that without relief from the District Court, “the Nation will be deprived in perpetuity of its Reservation not because of congressional action, but because of a judgment contrary to law.”
