Last week, the Oklahoma Court of Criminal Appeals ruled the Osage Nation’s reservation remains disestablished. The ruling came after Dakoda Aaron McCauley was denied post-conviction relief after he claimed the district court lacked jurisdiction to try his case.
McCauley is an Osage citizen and his crime occurred within the boundaries of the Osage Nation. McCauley raised this claim when he put forth a motion for a new trial in February of 2022.
McCauley was tried and convicted of manslaughter in the first degree, also known as a heat of passion, when he fatally stabbed Frankie Cotto in McCauley’s home in Barnsdall, Okla. The jury sentenced him to 22 years in prison.
Osage County District Court Judge Robert L. Hudson denied post-conviction relief because of a federal ruling in 2010 in a case known as Osage Nation v. Irby, which said the Osage Nation’s reservation was disestablished when the Osage Allotment Act passed and the surface lands of the tribal nation were allotted to citizens. McCauley’s defense team argued the 2020 U.S. Supreme Court decision in McGirt v. Oklahoma, which overruled the 10th Circuit’s prior decision. Hudson said it didn’t.
After the decision, the Osage Nation released a statement that they were disappointed but not surprised by the District Court’s ruling.
“The decision in Osage Nation v. Irby was wrong in 2010, but since the U.S. Supreme Court’s landmark ruling in McGirt, Irby has been completely indefensible,” Osage Nation said in a statement.
In a concurring opinion, District Court Judge Scott Rowland said ruling in favor of McCauley on his post-conviction relief would create a vacuum of jurisdiction in Osage County.
“In this case, it is not only prudent, but also essential to follow Osage Nation unless and until it is overruled by a federal court with authority to reinstate federal jurisdiction, lest there be a jurisdictional gap over this piece of Oklahoma,” Rowland wrote.
“Were this Court to grant the relief McCauley seeks and find as a matter of state law that there is currently an Osage Reservation, it would divest state authorities of criminal jurisdiction. Because the crime at issue here is covered by the Major Crimes Act, the tribe would also be without criminal jurisdiction. 18 U.S.C. § 1153(a). The result is that no sovereign authority would have criminal jurisdiction over this land,” Rowland concluded.
Osage Nation said Congress never explicitly disestablished the reservation, which the tribal nation purchased with its own money from the Cherokee Nation after being moved from their Kansas reservation in the 1870s.
ON Attorney General Clint Patterson said he knew it would be difficult to get a positive ruling in an Oklahoma criminal court.
“We have a federal court decision out there, so it’d be a little difficult to get a state appellate court to issue an opinion that was adverse to that,” Patterson said
Does McGirt overrule Irby?
“The trial court disagreed as does this Court … McGirt did not expressly overrule Osage Nation,noris the binding precedent established in Osage Nation incongruent with the Supreme Court’s decision in McGirt,” wrote Judge Hudson in his opinion last week.
The Osage Nation v. Irby was a tax case involving the late Mary Jo Webb and her husband Marvin Webb and Oklahoma Tax Commissioner Constance Irby. The Webbs lived in Fairfax and Mary Jo Webb worked for the Osage Nation. During her 1996 tax filing, Webb excluded state income taxes because she lived within the boundaries of the Osage Nation and worked for the tribe. The case made its way to the 10th circuit. The OTC later assessed fines and fees for excluding that tax. She protested.
This same scenario is also playing out in the Oklahoma Courts today in the case of Alicia Stroble, who also protested paying state income taxes because of her status as a Muscogee Nation citizen.
Stroble claimed she lived and worked within the Muscogee Nation from 2017-2019 and should not have to pay state income taxes for those years.
This isn’t the first time the Osage Nation has gone before a district court to try to undo Irby only to walk away unsuccessfully. In August of 2022, Osage County Judge Stuart Tate denied post-conviction relief to Dustin Phillips, who was charged with kidnapping, domestic assault and violating a protective order in 2019. Phillips argued the county court lacked jurisdiction to try him because he is a citizen of the Cherokee Nation, and his crime took place within the Osage Nation’s reservation boundaries. Judge Tate also cited Osage Nation v. Irby.
For a reservation to be disestablished, the U.S. Congress must explicitly say that it is. Legal scholars Osage News spoke to about both the Phillips and the McCauley case said they never did.
The 2020 U.S. Supreme Court ruling in McGirt, which said the Muscogee Nation’s reservation had never been terminated, undid more than 100 years of prosecutorial power on behalf of the state of Oklahoma.
“What has not happened is nobody has been able to get a case back up to the 10th circuit for the 10th circuit to re-review it and say, in accordance with the analysis provided to us by the U.S. Supreme Court, Irby is no longer good law,” criminal defense attorney Robert Gifford said. Gifford represents many Indigenous clients seeking post-conviction relief because of the 2020 McGirt v. Oklahoma decision.
“…The Osage Nation should be getting its reservation back too,” he said.
When the McGirt decision came out in 2020, Supreme Court Justice Neil Gorsuch wrote that Congress must explicitly disestablish a reservation, or it didn’t happen. This writing is at odds with the 2010 Irby decision, which justices said they intended to disestablish the Osage reservation when they passed the Oklahoma Enabling Act and the Osage Allotment Act.
“…[I]t’s no matter how many other promises to a tribe the federal government has broken. If Congress wishes to break the promise of a reservation, it must say so,” Gorsuch wrote.
In their arguments before the U.S. Supreme Court, lawyers for the state of Oklahoma used the same argument used in the 2010 Irby decision that Congress intended to disestablish the reservations in Oklahoma when they passed the Oklahoma Enabling Act. Gorsuch rebuked that argument soundly.
Gifford thinks Oklahoma’s tactic is to delay getting this case in front of a federal court.
“The state of Oklahoma has done extremely well about keeping this case …from being litigated. They will extend it, delay it, reset it,” Gifford told Osage News.
“What’s happening is, we’re trying to raise an issue and the state does not want this to go any further.”
What’s Next
The Osage Nation can’t be a party to the case before a federal court to get their reservation reaffirmed – even though it’s something that deeply affects the Nation. They can only file as an amicus, or friend of the court brief.
Gifford said there are some options to take the case back to the federal level.
“File a certiorari to the U.S. Supreme Court – they could accept or deny the case. Or, wait one year and file a federal habeas to get it before the 10th Circuit Court of Appeals,” he said.
Right now, it’s in the hands of Dakoda McCauley’s attorneys as to where they want to take the case next. Patterson said they have met with McCauley’s legal team and they are trying to digest the opinion. But, Patterson said he is confident this case will go before a federal court to undo what he believes is the wrong analysis the 10th circuit used in Irby.
“The Osage Nation has probably the best case out there … we bought our own lands and got the deeds to our own lands. We own the subsurface estate, you know, through federal legislation,” Patterson said.
“All we’re asking is for McGirt analysis. Once we get that, it’s pretty clear the reservation’s never been disestablished.”
