Dr. Jann Hayman of the Department of Natural Resources has been strategizing on ways to protect water resources on the reservation while minimizing damage to limited potable groundwater due to ongoing fracking in the Osage.
She is not alone in thinking about water.
Bigger events like the Hominy water issue in May “bring to light that, in reality,” said Hayman, “at any point that [water] infrastructure could fail. And then where are we at? Not only as the Osage Nation, but everyone living here that’s part of it too.”
Residents can no longer rely on groundwater sources such as the vast stores inside the Ada-Vamoosa Aquifer underlying the reservation because it has been salinated due to fracking injections, as found by the U.S. Department of the Interior in a survey of water resources.
Tom Ashmore of Harvest Land, who is responsible for testing runoff into creeks and rivers throughout the reservation, said he is likewise alarmed after encountering poor water quality in Region 6 testing areas for the Environmental Protection Agency.
Principal Chief Geoffrey Standing Bear is another concerned Osage who said he does not see many in the Nation doing anything about water rights or water quality.
“It’s like people are asleep at the wheel,” Standing Bear said.
Ashmore observed, “On the most microscopic, vulnerable level, water is alive. What are we doing to it?”
If this is what three servants of the Osage Nation paying the closest attention to water are saying, what might a closer look reveal? The answers involve undefined and un-enforced water rights as well as a host of ongoing “trampled” rights, according to Standing Bear.
No Sovereign water treatment
The Osage Nation is located in the Environmental Protection Agency’s 106th water division, Region 6, where Ashmore measures the threats that exist to water in the Osage. “I check levels of e. coli, salinity, nitrates, nitrites, turbidity … pieces of what our streams hold. [The testing] will tell you whether or not there has been an oil or gas spill, runoff, etc.,” he said.
Ashmore monitors the Osage Nation Industrial Park in Hominy, which contains the Casino and Butcher House, food distribution center, child care center, archives and the Dick Conner Correctional Center. He sees the need for a sovereign water treatment facility because as it is now the Osage Nation has to answer for the state of whatever Hominy’s water quality is. “The Osage Nation line is tapped directly into and feeds into Hominy’s, so whatever [their] water quality is, is our water quality,” Ashmore said. “What happens is we’re guilty by association.”
The Nation currently has a grant that holds the tribe responsible for water quality at the industrial park, because of the number of employees there. “The EPA treats it like we need to monitor it, so essentially, ideally, it would be nice to have our own way of treating the water,” said Ashmore.
Standing Bear hopes to create a sovereign water treatment facility, too, and the way he intends to do that is through the examination, defining, and then enforcement of water rights. “If the Nation were to begin enforcing water rights from past court rulings—which establish that we own the Arkansas River—we would be able to work toward a huge water settlement with the United States, that would result in hundreds of millions of dollars for water projects to do things such as create a sovereign water treatment facility.”
Damaged groundwater
A 2014 geological survey by the U.S. Department of the Interior found that the Ada-Vamoosa aquifer contains largely unpotable water due to saline that fracking entities inject into the ground, said Dr. Hayman, which makes the need for an overall review of water issues critical.
“What the USGS study gave us was a snapshot of the subsurface resources. We know from that that there’s not a vast amount of subsurface fresh water,” said Hayman. Those saline injections into the reservation affected one of the measurements Ashmore monitors—salt content, or salinity.
As Hayman confirmed, “there’s a lot of salinated content” in the Ada-Vamoosa Aquifer, which is the aquifer underlying the Osage. Its most damaged part underlies the Osage Nation Ranch, where the water quality in the aquifer is degrading.
According to Hayman, the damaged aquifer makes it “more important to protect the areas that do have the freshwater,” said Hayman. “To identify those, protect those to the best that we can. And I’m not for sure what the strategy is going to be.”
The tribe is currently working with engineers specializing in water protection to make recommendations and help the Nation think about the best way to protect those resources.
One challenge Hayman noted is that both the Mineral’s Council and the Department of Natural Resources support mineral development at large, which includes fracking. The issue with fracking when it comes to water protection is that it actually breaks the earth’s formation so that developers can access the minerals in the formation.
This damages the aquifer, Hayman explained.
“We need to change the way we do things, going forward,” she concluded.
The current solution is damage control, said Hayman, who cited a grant the Nation has that pertains to orphan wells—or wells that are no longer being used. “Through the orphan well program there’s a lot of surface remediation,” she said. “Some plugging of orphaned wells, some surface salt scar [remediation]. There’s a lot of work being done on the back end to clean up what has been done for generations.”
Changing the way the Nation does things going forward is not going to be pleasant, she said, but it’s necessary because the tribe’s long-term water resources are in danger.
No water code
At the time the Osage Nation Congress first worked toward creating a water code, Ford Drummond issued the tribe a cease and desist letter from the Oklahoma Water Resource Board, telling Osage Casinos they could not drill a well on trust land in Skiatook. Due to a lack of water code, the tribe did not have recourse.
“The well was permitted by the Nation’s Department of Natural Resources,” said Standing Bear. “Then, they got a cease and desist letter from Ford Drummond. What are we doing to challenge Oklahoma?” he said.
“The Oklahoma Resource Board has been permitting wells into the Osage reservation since,” said Standing Bear, who would like to charge a toll to drillers at the least. “They’ve been using our territory. … People are asleep, but I can show you this is all real and happening.”
Not only is the state ignoring and maligning sovereignty through the McGirt case, said Standing Bear, but also by issuing wells into Osage Nation’s minerals estate without permission. “What are we doing to challenge Oklahoma?” he asked for the second time.
His question echoes.
Defining ‘Osage water’
In order to do or say anything about “trampled” water rights, said Standing Bear, the tribe must establish what rights Osages have to water. For instance, there’s no way to respond to the pipeline near Grayhorse which “could leak,” said Ashmore. “We are at the mercy of it not busting in our area.”
Being at the mercy of oil moguls is a surprising position for Osages, who long ago triumphed over oil companies in a lawsuit in the 1920s. The Brewer Case went all the way to the U.S. Supreme Court, in a ruling responding to oil companies who were battling for access to the Arkansas River.
“Because the Arkansas River was not navigable,” said Standing Bear, “the Supreme Court ruled that it could not belong to the state, and so it belonged to the Osage. Anybody that crosses the Arkansas River is going across our land,” he added. “And that means they’re trespassing.”
Yet, the Nation has been unable to do anything about it short of protesting because those in the Nation have not heeded his call to action and there is still no water code. “We have rights everywhere that are being trampled,” he said.
By way of example, he pointed out natural gas lines, coal lines and more that use Osage land along the Arkansas River, which he would like the Nation to profit from with back-rentals, leases and more.
“That’s crossing our land,” he said. “You know what else crosses our land? Kaw Dam and Keystone. And that is the Corps of Engineers,” he said. “They need our river bed, but we own it,” he said, noting that the Osage owns the river bed north of Keystone Dam.
The Osage Nation’s existing codes mentioning “water” pertain only to the contamination of agricultural water, alienation of water or water rights, and water offenses. Regarding water rights, generally, Code 2-103 states that “no water or water right of the Osage Nation … shall be alienated without the express consent of the Osage Nation Congress by resolution.” Yet, these rights are not viewable in their listing “Title 28” marked as “reserved.”
Congressman Billy Keene apologized during the 2024 Osage News Editorial Board debates that there was no water code, but the code has still not yet been updated. Keene did not respond with comments on water issues by the time of this article’s publication.
The only other existing laws in the Osage Nation code on water pertain to polluting water used for “domestic purposes” noted in code 5-165 and contaminating “agricultural water” in code 5-107.
In the absence of action by Congress, Standing Bear has been working to try and define what water is legally Osage water. He is focused on a strategy that defines water rights in regard to the establishment of the reservation, commonly referred to as the Winters Doctrine.
The Winters Doctrine, said Standing Bear, defines the rights of a tribe based on the intended use of the reservation. Because the intended use of the mineral’s estate is oil production, that means the water the tribe uses in oil production belongs to the Nation. “That means the water we use in oil production is ours under the Winters Doctrine,” he said.
To prove how much water Osages are entitled to, Standing Bear has begun to collect measurements of how much water the tribe has used for oil production since 1906. He has aggregated water usage data from 1985 to 2002 and is working on getting information for usage before 1985 from the Bureau of Indian Affairs.
Without this data, the Nation cannot go to court to defend any water rights, he said.
As the tribe remains at the mercy of various entities in regard to water, Standing Bear has been going to conferences on water rights such as the 2024 Colorado River Annual Conference, where he was during the May 6 Barnsdall tornado.
“I am learning from the best water rights lawyers working on the Colorado River and San Juan River, all the way into California and Mexico,” he said and emphasized that he will continue trying to raise awareness on water for the purpose of working toward a massive water settlement including hundreds of millions of dollars with water solutions for the three districts.
“We need a billion dollars is what we need, but we have to establish our rights,” he said.
He hopes Congress will help.
