The U.S. Supreme Court Justices will meet in conference Feb. 18 to decide whether or not to hear the Nation’s case against the Oklahoma Tax Commission. Their decision will be made public Feb. 22.
If the High Court grants certiorari, or the right to hear the case based on merits, the Nation will proceed in a round of briefs, opinions and oral arguments to win the case. If the High Court denies the case then the 11-year battle is over.
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.
The main argument from the OTC is that the case does not bring a strong question of federal law to be heard by the High Court, which is the basis for the court to hear cases. 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.
"In any event, the question at this juncture is not whether the Tenth Circuit’s . . . test of congressional intent is correct. The question is whether there should be one test for disestablishment or a variety of them that change with circuit- and state-court boundaries,” according to the Nation’s brief. “If [state courts] are wrong . . . and the other governmental and private entities affected by reservation determinations in those jurisdictions need and deserve the same unified national standard that the Osage Nation seeks here.”
The case began 11-years-ago when the Nation sued the OTC 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 10th Circuit Court of Federal Appeals twice, in which the federal court denied to hear a rehearing of the Nation’s case.
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.
Osage Nation v. Oklahoma Tax Commission
The Oklahoma Tax Commission filed a 44-page response to the Nation’s brief Jan. 11. Its argument against the Nation remains much of the same – the 1906 Division Act and the 1906 Enabling Act demonstrates the U.S. Congress’ intent to disestablish the Osage Reservation. The OTC cites historians whose interpretations of those acts and the events that followed were further proof of Congress’ intent to disestablish the Osage Reservation.
The Nation maintains that the language in the 1906 acts never made a clear statement of disestablishment and referenced past court cases where a clear statement was mandatory to disestablish a reservation.
At stake if the Nation’s case should be denied by the High Court are three casinos that aren’t currently on trust land, a requirement for any tribe to operate a gaming facility. At risk are the Tulsa, Skiatook and Ponca City casinos.
Land-into-trust applications submitted
On Jan. 31 the Chief’s Office announced they had submitted the final land-into-trust application for the Tulsa based Osage Million Dollar Elm casino. Now they will wait for approval from the U.S. Department of the Interior for all three casinos.
“We continue to receive very good news from the Department of Interior about the progress of our land-into-trust applications,” Principal Chief John Red Eagle said. “The Department’s approval process, in this instance, may be a matter of weeks rather than months, barring any unforeseen problems. That is unprecedented. The Osage Nation is extremely grateful to Secretary Salazar and his staff at all levels for this speedy process.”
According to a prepared release from the Chief’s Office, the Tulsa and Ponca City applications are currently being reviewed by the Bureau of Indian Affairs’ regional office in Muskogee prior to being forwarded to Washington, D.C. for approval. The Skiatook application is currently under review in Washington, D.C., and the Ponca City application could be forwarded there as early as this week.
The Supreme Court considers about 10,000 cases per year and of those chosen approximately 100 are selected to hear oral arguments from attorneys, according to the Supreme Court’s official site. In only about 80 to 90 are formal written opinions delivered. Approximately 50 to 60 additional cases are disposed of without granting plenary review.