Tulsa Attorney BlogDoes McGirt Apply to the Osage Nation Reservation?

There Are Three Factors Whether a Reservation Has Been Disestablished

Video Transcribed:  Does McGirt v Oklahoma apply to the Osage Nation? I’m McGirt attorney James Wirth and we’re talking about McGirt, and how it’s expanded beyond the original Muskogee Creek Tribal Reservation, is now expanded to the five civilized tribes.

There are numerous other tribes that are requesting, or there are criminal cases involving those nations boundaries that are requesting that it’d be found not to have been done established. And now we’re looking at does McGirt applies to the Osage Nation and its historic tribal reservation?

And Osage Nation is different, and it’s kind of interesting that the procedural history for that is very different than for the five civilized tribes, when you had the Dawes Act and all of that, the Osage Nation was specifically handled differently and separate and excluded from that.

Moreover, the issue of disestablishment and whether these tribal reservations still exist was actually decided on the Osage Nation before Murphy and McGirt came around to talk about the Muskogee Creek Nation.

So looking at a little bit of the history there, obviously, these reservations were established prior to statehood, and in the Osage Nation, they actually divested the mineral interest of the land from the land when they opened it up for allotment, where tribal members would get land that could then be resold to non-tribal members that ultimately resulted in many non-tribal members coming over and living in that region to the point where when this issue first came up before the courts in around 2010, the court described 90% of the populous being non-native.

So the same exact question that was involved in McGirt for the Muskogee Creek Nation was actually handled in a declaratory judgment filed by the tribe against the state related to a taxing issue for the Osage Nation.

And that ultimately went up to the 10th Circuit and that case was Osage Nation v. Irby, and that is 597 F3d 1117, 10th Circuit, 2010, decided March 5, 2010. And in that case, the court, the Circuit Court there actually used pretty much the same test that was used in McGirt. However, they may have balanced the three factors a little bit differently.

So the three factors that they looked at, same ones from a prior precedent, and that’s where you look at statutory language. So when these various laws were passed through Congress that allowed allotment, and in this case, divested the mineral interests did the statutory language was it clear that they’re disestablishing the reservation.

And in some tribes there’s a very clear language that notes this will cause the reservation to cease to exist, it doesn’t exist after this date, but in the Muskogee Creek Nation case, but also in the Osage case, there is no specific congressional language that says that the reservation is disestablished, just that it’s opened up for allotment.

attorney in OklahomaAnd like I said it’s an allotment of everything, in the Osage Nation it’s only partial because it’s the surface rights. The mineral rights went into a trust for the benefit of the Nations members, and the members got ahead right and then they’d get a portion of the proceeds from oil and things like that, that would go to them.

The first one like I said, is three factors in determining whether a reservation has been disestablished. The first factor, statutory language, Osage County, or Osage Nation, there was no specific statutory congressional language that indicates it was disestablished. So that favors in not being disestablished.

The second factor is the circumstances surrounding the passage. So how were people treating it at that time in Congress? What was the congressional attempt, if you can glean it from that, and what the court noted, the 10th Circuit noted is the manner in which the Osage Allotment Act was negotiated reflects clear congressional intent that Osage and Osage understanding that the reservation would be disestablished. So the 10th Circuit says that favors it being disestablished.

The third and final factor that the court looks at is post-enactment history. And what the court in this case notes is that Osage lands were repeatedly referred to as former reservations in various writings after this had occurred, after the allotment had occurred.

So ultimately looking at the same three factors the McGirt court looked at, they applied it to the Osage facts and found that it was disestablished. However, the way they balance those factors maybe a little bit different. In McGirt, the way that Gorsuch in his opinion factored it is the statutory language is almost the end all be all, that there almost has to be statutory language that specifically to establish it, and if not it requires a mountain of evidence on the second and third.

So what does that mean where we are for the Osage Nation now? We’ve got a 10th Circuit case that says that it was disestablished. The tribe appealed that to the United States Supreme Court, that court denied cert, so this was the final of it.

But now where we’ve gotten McGirt out, that’s kind of balancing these factors a little bit differently, the tribe is wanting a second bite at the apple, and there’s a criminal case that has that as a relevant issue, and the trial court determined it’s res judicata, it’s collateral estoppel, this has already been decided by a different court, we’re not going to re-litigate it now.

That is now up on appeal with the Oklahoma Court of Criminal Appeals, and the state has requested that that decision stay pending the decision in Bosse because they’re hoping that Bossie will be reversed by the United States Supreme Court so that the state can use procedural defenses to prevent defendants from getting their convictions vacated even if the state court lacks jurisdiction over it the entire time.

So long story, but the short answer is the Osage Nation disestablished based on the 10th Circuit decision, it is disestablished, however, the tribe is pursuing filing Amicus briefs in a defendant’s case that is trying to get it reevaluated.

And there are arguments, the res judicata thing is going to be tough to get around because this has already been decided by the 10th Circuit. On the other hand, if you were to re-look at this based on how they weigh the factors in McGirt, a different decision may come out, so Osage Nation is still kind of up in the air on this.

If you’ve got questions about how this might affect your cases and circumstances, you’re going to want to talk to an attorney about that privately, confidentially. To get that scheduled you can go online to makelaweasy.com.

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