Community , Government , Legal

Osage Nation and Oklahoma AG to begin talks on water rights in Osage County

Oklahoma Attorney General Mike Hunter will be meeting with Principal Chief Geoffrey Standing Bear this month to discuss the “competing claims” to water rights in Osage County. The Osage Nation issued its first water well drilling permit on Sept. 18.

According to an Oct. 5 letter sent to Standing Bear from New Mexico-based law firm Modrall Sperling on behalf of the AG’s office, the water well permit the Nation issued under the Osage Nation Water Regulations is “unlawful.”

“Unilateral claims to control of water such as represented by the Osage Water Regulations and the recent permit issued pursuant to those regulations are inconsistent with the collaborative approach necessary to address the complex issues and claims relating to the water resources vital to all Oklahoma citizens,” according to the letter. “In an effort to commence a discussion regarding the issues raised by this letter, the Attorney General requests a meeting with you as soon as possible.”

The water well drilling permit was issued to the Osage Nation Gaming Enterprise Board for the Skiatook Osage Casinos by the Nation’s Environmental and Natural Resources department. The casino sits on federal trust land belonging to the Osage Nation.

“Of course, we completely disagree with the opinion in this letter about our water regulations, but it is of no consequence to us,” said Standing Bear in an Oct. 5 release. “The Osage Nation has issued a valid permit to the Osage Nation Gaming Enterprise, which is located on the Nation’s land, and the water that it is authorized to take will be used pursuant to that permit.

“What really puzzles me about the letter is Attorney General Hunter’s decision to communicate with me through an out-of-state law firm. He should feel free to pick up the telephone and give me a call. I’m not hard to reach.”

Standing Bear said Hunter called him on his cell phone the next day and scheduled the meeting.

Reservation status

The Oct. 5 letter claimed the Nation issued the water well drilling permit because it believes they have a reservation. The letter said the Osage reservation has been disestablished and cited the case Osage Nation v. Irby (2010).

According to Standing Bear, the Osage believe the U.S. Congress protected the Osage mineral estate by federal law in 1906, and no amendments ever changed this status. The Osage believe water is also protected because it is often essential to the production of oil.

“We believe that this is our water, and we will defend our property,” Standing Bear said.

The letter referenced the recent water settlements between the state of Oklahoma and the Chickasaw and Choctaw Nations as a “successful collaborative effort.” It said the state will continue to exercise its rights over the water in southeastern Oklahoma through the Oklahoma Water Resources Board and the state “recognizes the right” of the Chickasaw and Choctaw to “develop water resources in a defined manner.”

Standing Bear said the letter shows that the AG recognizes that Oklahoma must reckon with the Osage Nation and wants to begin discussions.

“We are willing to speak with Oklahoma on a government-to-government basis. Attorney letters like the one we received are unnecessary and unhelpful,” he said.

Osage Nation v. Irby

In Osage Nation v. Irby (2010), the Nation sued the state of Okahoma, the Oklahoma Tax Commission and the Commission’s members arguing the Nation’s reservation had not been disestablished and remained Indian Country. The Modrall Sperling law firm represented the state in that case. The Nation claimed its tribal members were exempt from paying state income tax and sought an injunction to prohibit the state from collecting income tax from its tribal members. The Northern District Court of Oklahoma ruled against the Nation and said the U.S. Congress intended to disestablish the Nation’s reservation when it passed the 1906 Osage Allotment Act, even though there is no termination or disestablishment language within the act. The 10th Circuit Court of Appeals affirmed the District Court’s ruling. The Nation appealed to the U.S. Supreme Court but the Supreme Court declined to hear the case.

A recent 10th Circuit Court decision involving a Muscogee Creek man may have effects on Osage Nation v. Irby. In August of this year, in the case of Murphy v. Royal (2017), the 10th Circuit ruled that the state of Oklahoma did not have jurisdiction to convict and sentence to death a Creek man for first-degree murder because the murder happened within the historic reservation boundaries of the Creek Nation. The Court said the U.S. Congress did not disestablish the Creek Nation reservation, even after their lands were allotted to tribal members and sold for white settlement. The Court said there was no statutory language found that disestablished the Creek Nation reservation. The state of Oklahoma has appealed the decision.

Standing Bear said the Nation is watching the Murphy v. Royal case closely, “We think Irby needs to be revisited.” He said the Nation is retaining top lawyers and hydrologists for the upcoming water rights negotiations with the state

“I’m no stranger to this kind of work,” he said. Standing Bear is a former attorney and has over 30 years experience. “You have to have top lawyers and hydrologists for this kind of negotiation.”