U.S. Solicitor General advises Supreme Court not to hear Osage reservation case

The acting U.S. Solicitor General filed an amicus curiae brief May 27 to the U.S. Supreme Court advising the justices not to hear the Osage Nation’s reservation status case.

“The Acting Solicitor General notably did not state that our reservation was disestablished,” said Osage Nation Principal Chief John Red Eagle in response to the brief. “It says that ‘it is unclear whether Congress went so far as to disestablish the Osage Reservation.’ The Acting Solicitor General, however, stated that the tribal members living on fee lands are not entitled to tax immunity, recommending that the [High Court] deny certiorari. The Osage Nation will file its brief in response on June 6.” 

“We expect that the [Supreme Court] will act on the petition by the end of June,” Red Eagle said.

The Supreme Court called for the opinion of the Solicitor General in February on the Nation’s case. The acting Solicitor General is Neal Katyal who is filling in for Elena Kagan, who now serves on the Supreme Court. Often called “the 10th justice,” the solicitor general is the government's representative at the Supreme Court, advising the attorney general on legal matters and deciding whether the government will appeal adverse lower court rulings.

If the High Court denies the Nation certiorari then the 11-year battle is over.

Osage Gaming Enterprise reacts

At the May 31 Gaming Enterprise Board meeting in Tulsa, the Nation’s gaming officials reacted to the Solicitor General’s brief filing.

Osage Million Dollar Elm Casino CEO Neil Cornelius described the brief as, “not in support of us,” even though the Supreme Court hasn’t ruled on hearing the Nation’s appeal. He referred to Gaming Enterprise Board Attorney Elizabeth Homer, who spoke via speakerphone to the board.

“Basically it is the position of the Solicitor General that the Supreme Court should deny (the Nation’s petition) in this case,” said Homer. “The Supreme Court follows the recommendation on denials about 99 percent of the time, which is not good for us and it means that the Supreme Court could make an order forthwith – it won’t be long.”

“I have been following what’s been happening with our trust applications – it is urgent, urgent now that the United States act on this as that decision from the court is now likely to be imminent,” she said.

Homer, who said she read the Solicitor General’s opinion, said she found it, “very disappointing. They basically are saying that the Oklahoma Enabling Act is basically an expression, taken together with the 1906 Act, was an expression of an intent to diminish or disestablish the reservation . . . I suspect that the court will likely accept the government’s recommendation and deny cert. (short for the Nation’s petition for a writ of certiorari).”

“The Chief has assigned Wilson (Pipestem) to do communications with the Bureau of Indian Affairs on our trust applications,” Homer said of the ongoing efforts to put the Tulsa, Skiatook and Ponca City OMDE casino locations’ lands into federal trust status. She had yet to visit with Pipestem after the Solicitor General’s office brief was filed.

Regarding the trust applications, Homer said the applications are still being processed in (the U.S. Department of the Interior’s) Tulsa Field Solicitor’s Office for the Ponca City and Tulsa casino lands. 

Homer said, “the plan right now is to get an email transferring everything . . . we’ll have the Solicitor’s Office (in Washington, D.C.) finish up whatever work is remaining on their end, try to get everything to D.C. so they can get the (trust applications) package together.”

Oklahoma Tax Commission

The case began 11-years-ago when the Nation sued the Oklahoma Tax Commission for taxing Osage tribal members on land that the Nation claimed was still, and had always been, Reservation land, also known as the boundaries of Osage County. Since that time the case has been to the 10^th Circuit Court of Federal Appeals twice, in which the federal court denied to hear a rehearing of the Nation’s case.

The Nation appealed to the Supreme Court in October of last year. The Nation makes the argument that because of existing conflicts in opinions from circuit and state courts, the Supreme Court needs to make a defining rule to determine whether Native American Reservations were intended to be disestablished by the U.S. Congress when allotment-era legislation did not specifically say so.

The main argument from the OTC is that the case does not bring a strong enough question of federal law to be heard by the High Court, which is the basis for the court to hear cases.

The justices were given all the supporting court documents in the case Jan. 26. The documents include two briefs by the Nation, a brief in support of the Nation from the National Congress of American Indians and a brief by the Oklahoma Tax Commission.

Representing the Nation is Patricia Millett of Washington D.C.-based firm Akin Gump Strauss Hauer & Feld LLP. Millett co-heads the firm’s Supreme Court practice and has argued 28 cases before the Supreme Court and briefed more than 50, according to the firm’s Web site.