Three lawyers – including Osage Nation Principal Chief Geoffrey Standing Bear – gathered Nov. 6 to give the long view about the U.S. Supreme Court decisions that have made Oklahoma “Ground Zero” in the national battle to assert tribal sovereignty.
The Tulsa Osage Group hosted the panel discussion, before a middling crowd of 25-30 at the Osage Casino in Tulsa. Standing Bear, Wilson Pipestem and Joe Keene discussed the aftermath of the Supreme Court’s decisions in the cases of McGirt v. Oklahoma – which established that the Muscogee (Creek) Nation’s reservation still exists – and Castro-Huerta v. Oklahoma, in which the same court, with a new justice on board, chipped away at the McGirt decision it had decided only two years earlier.
Although both decisions centered on criminal cases, their impact has rocked Indian Country: Civil issues such as taxation, mining, gaming, and child welfare are all affected by the rulings or have the potential to be affected.
So far, the Osage Nation’s reservation has not been ruled intact, although there is little doubt Congress never specifically disestablished it, as the McGirt ruling insisted it must – or that the reservation remains.
Because of a 2011 ruling by the 10th Circuit U.S. Court of Appeals in an ill-fated tax case called Osage Nation v. Irby, the Nation has been unable to directly assert the existence of its reservation. Irby said that 1906 Osage Allotment Act and the Oklahoma Enabling Act that was enacted right on its heels effectively dissolved the Osage Reservation.
Instead, the Nation has had to back-door its challenge, filing briefs as a friend of the court in criminal cases. The case that is poised to be the one the Nation will ride all the way to the U.S. Supreme Court involves a defendant named Dustin Phillips, a Cherokee member who is accused of kidnapping, domestic assault and other crimes in the Osage County part of Skiatook.
At the trial court level, the Nation’s effort failed when, in late August, District Court Judge Stuart Tate issued a ruling that because of the Irby decision, he had to conclude that the Osage Reservation no longer exists and that Phillips should be tried in state court, not federal or tribal court – which would have been the case had he committed a crime in Creek territory or the reservations of the Five Civilized Tribes to which the Oklahoma Court of Criminal Appeals expanded the McGirt standard.
“I know Judge Tate and I believe he wanted a higher-up court to decide the issue and that’s where it’s headed,” Standing Bear said. “Win or lose, we are going to ask the United States Supreme Court to become involved in reviewing the decision by the Oklahoma Court of Criminal Appeals” which is the highest court for criminal matters in Oklahoma.
Like most things legal, that will take time. After Tate ruled in August, he stayed the proceedings against Phillips so Phillips’ attorney, Douglas Dry of Tahlequah, could file an appeal with the OCCA. Last month, the OCCA rejected that appeal, saying that Phillips failed to show that he would suffer an injury for which there is no other adequate remedy. Instead of appeal mid-stream in the criminal case, the OCCA said that Phillips will have to wait until the state case is final then appeal when and if he is convicted.
All eyes on Oklahoma
Standing Bear and his two attorney colleagues on the panel were of one voice during the discussion at the Tulsa casino.
“Sovereignty: If you don’t use it, you lose it,” Standing Bear warned.
Pipestem said that in light of the McGirt ruling, “there is almost no doubt that the Osage Reservation has never been disestablished.”
“This,” Pipestem said, “is Ground Zero. Tulsa is Ground Zero for the fight across the United States over what is happening to the sovereign rights of Indian tribes.
“We’re talking about the City of Tulsa, not some remote place. Tulsa.”
After the McGirt decision, Pipestem said that Oklahoma Gov. Kevin Stitt and “other interested people” went to the U.S. Congress to try to persuade legislators to formally disband Oklahoma reservations.
“They didn’t get anywhere,” Pipestem said. “Gov. Stitt and others didn’t even get a bill introduced.
“Since that time, the state and the attorney general have been fighting every opportunity they can to try to get certain rights overturned …
“So much here is at stake. We’re not used to that here because those powers haven’t been exercised for so long.
“You don’t have to dig too far to find out that the Osage Reservation has never been disestablished. This is our homeland, and we need to protect it as such.
“It’s not just about the ability to have gaming on our land or about the ability to avoid paying state taxes. We’re talking about the exercise of sovereign rights where other governments have to follow it. And that’s happening right now.”
Fighting tooth and nail
The Stitt administration has warred with Indian Country since taking office.
“You can see the state’s fear,” said panelist Joe Keene, a lawyer who works with Pipestem Law: “Loss of tax revenue. If you live on your tribe’s reservation and you earn income on your reservation, you’re exempt from state taxation.”
Or should be, perhaps. In April, an administrative law judge for the Oklahoma Tax Commission ruled that a Creek woman who lives and works on her tribe’s reservation was exempt from paying taxes, but his ruling was rejected by the Tax Commission itself on Oct. 4, Keene said.
Keene also noted that he, who is part Osage and part Cherokee, lives on the Cherokee Reservation but worked on the Creek Reservation – and thus could not claim to be exempt from state taxes because he’d be required to live and work on his own reservation. “So, Wilson, you need to move the office,” he jokingly told his boss.
Pipestem made no such promises but noted that the state’s worries extend beyond income taxes. The oil and gas industry is also loath to grant tribes the power to regulate them, hence the reason Sen. James Inhofe introduced a “midnight rider” on an unrelated bill that effectively prevented Indian nations from having their own environmental protection agencies.
In the Osage, the Bureau of Indian Affairs takes on that role, but elsewhere in the state, the work falls to the Corporation Commission.
Pipestem noted that tribal sovereignty is something that big business – whether oil or wind or something else – doesn’t fear ignoring.
“Coming and taking our resources without our consent? That’s going on right now with the wind farms west of Pawhuska,” he said. “When wind came to Osage County, the tribe opposed it from the start. It wasn’t just oil and gas. There was a lot of opposition. The eagle population is significant. The Nature Conservancy and some of the Drummonds made for an interesting coalition of opponents.
“What the company did was to hurry up and finish (erecting) the wind turbines.”
With elections on Nov. 8, Standing Bear predicted more sparring with the state attorney general, who is certain to be Gentner Drummond, a lawyer and Osage County rancher who filed an environmental lawsuit that brought oil drilling in the county to a standstill about five years ago.
Meantime, when Scott Pruitt was the head of the U.S. Environmental Protection Agency and oilfield brine was infiltrating the headwaters of Bird Creek, from which Pawhuska drew its water supply, the tribe was left in the dark, Standing Bear said: “The EPA never notified the tribal EPA about salt water because Pruitt believed we had no rights to regulate or govern our own lands.”
Standing Bear added that Gentner Drummond wanted the Osage Nation to endorse his run for attorney general, but Standing Bear refused.
“This is a guy who is getting ready to be the highest law enforcement officer in Oklahoma,” the chief said. “We’re all going to be spending a lot of money on attorneys’ fees.
“They’re going to attack.”
Standing Bear vowed that the Nation will continue to assert its water and other rights.
Keene suggested another form of activism, too: Voting.
“It is imperative that we all vote because we have a government right now that sees tribes as enemies.
“There’s one governor who refused to acknowledge our sovereignty. If you want to do something about it, vote on Tuesday.”
