The Oklahoma state Tax Commission has received a 50-day extension on its deadline to respond to the Osage Nation's appeal in the long-standing case being challenged at the U.S. Supreme Court level. In another recent development, the National Congress of American Indians is siding with the Osages in this case and filed an amicus curiae brief during the Thanksgiving holiday week.
The Nation is asking the High Court to opine on its nine-year argument with the state's Tax Commission after the 10th Circuit Court of Appeals declined the Nation's request for a rehearing of the case earlier this year.
The case against the state Tax Commission, in which the tribe alleges the state of Oklahoma does not have the right to tax Osage tribal members who work and live on the Osage reservation, didn’t go in their favor at the federal court level in Tulsa. The tribe was denied a rehearing May 25 by the 10th Circuit Court in Denver, prompting the question of appealing the case. The tribe filed its appeal to the Supreme Court on Oct. 22. A response to the Nation's appeal from the state Tax Commission is expected next month.
The state's response to the Nation's appeal was originally due Nov. 22, but the deadline has been extended to January 11, according to the Supreme Court's online docket. The extension was issued on Nov. 16.
Nov. 22 was also the day when attorneys representing NCAI filed the amicus curiae (Latin for "friend of the court") brief in support of the Nation. The brief was submitted by Richard Guest, an attorney for the Native American Rights Fund. John Dossett, NCAI's general counsel, is also listed on the 23-page brief.
"Our brief is focused on the impact" the 10th Circuit Court's ruling could bring on other tribes and reservations besides the Osage case, Guest told the Osage News. "The 10th Circuit opinion is in conflict with other courts."
According to the brief, NCAI "is deeply concerned that the legal test for disestablishment (of a reservation) adopted by a minority of the circuits will allow lower federal and state courts to ignore specific language within a statute or treaty, to overlook the contemporaneous Congressional purpose underlying an allotment or surplus land act, and to simply rely on subsequent historical events and modern demographics to determine reservation status."
The appeals process started after U.S. District Court Judge James Payne ruled against the Nation. Payne cited the Oklahoma Organic Act, the Oklahoma Enabling Act and the Osage Allotment Act as proof that the U.S. Congress intended to dissolve the Osage Reservation and leave only ownership of the mineral estate and small tracts of trust land to the Nation. Payne’s decision said that because Congress gave the State of Oklahoma jurisdiction over tribal members not living on trust land, they are not exempt from state income taxes. He declined the Nation's request to reconsider his decision.
In its Oct. 22 Supreme Court petition, the Nation argues "the only statements by members of Congress regarding the Osage Act relate to the allotment of tribal lands and monies… None of the statements even mentions disestablishment of the Reservation, much less expresses an unequivocal intention to accomplish that result."
Guest said the NCAI's brief regarding the reservation (dis)establishment issue also "stresses its importance to a large number of tribes."
NCAI urges the Supreme Court to consider hearing this case because: "The question of diminishment or disestablishment of reservation boundaries is one of exceptional importance to Indian tribes nationwide as they pursue self-determination and economic self-sufficiency. Indian self-determination has been the formal policy of the United States government since President (Richard) Nixon's Special Message to Congress on Indian Affairs in 1970, and has been affirmed by executive order or proclamation by each U.S. President since."
Three of the Nation's Osage Million Dollar Elm Casinos are at risk because they were built on lands not currently held in trust, per federal law. The Nation has filed applications to place those lands holding the Tulsa, Ponca City, and Skiatook casino properties into trust, but the process could take between six months to three years. Gaming revenue is the Nation's largest income source.
NCAI also notes that inconsistencies in reservation disestablishment analysis causes confusion when it comes to civil jurisdiction matters. "The status of a reservation not only impacts the internal governance of a tribe, but also its external relationships with a state and the federal government… As with criminal jurisdiction, an inquiry into the status of lands as 'Indian Country' strikes at the core of any determination of civil regulatory authority."
Guest said he coordinates and monitors all Indian law cases brought to NARF's attention as part of the Tribal Supreme Court Project. The project was started in 2001 with the purpose of strengthening tribal advocacy before the U.S. Supreme Court by developing new litigation strategies and coordinating legal resources to improve the win-loss record of Indian tribes at the Supreme Court level.
Based in Boulder, Colo., NARF is a nonprofit which provides legal representation and technical assistance to Indian tribes, organizations, and individuals nationwide, according to its Web site.
NCAI is the oldest and largest national organization addressing Native interests and represents over 250 tribes and Alaskan Native villages in the United States. It was started in response to termination and assimilation policies forced upon Native tribes by the United States in contradiction of their treaty rights and status as sovereigns, its Web site states.
According to its brief, "Since 1944, NCAI has advised tribes, states and the federal government on a wide-range of Indian issues, including the relevance and legal interpretation of treaties, statutes and executive orders setting aside or establishing reservations as permanent homelands for Indian tribes."
The case being appealed is Osage Nation v. Constance Irby, Secretary Member of the Oklahoma Tax Commission; Thomas E. Kemp, Jr., Chairman of the Oklahoma Tax Commission; and Jerry Johnson, Warden, Vice-Chairman of the Oklahoma Tax Commission.
To view the NCAI brief of amicus curiae: NCAI Amicus in Support of Osage Nation