Columns , Minerals Council

The Constitution and the Mineral Estate Part II

In continuing to think about our evolving relationship with the mineral estate and constitutions, I reviewed three documents. My understanding of these three documents is summarized herein. These references outline the Wah-Zha-Zhi’s continuing journey back to self government. 

These documents include: “The Osage Timeline,” a book of information and dates of Osage events and court cases, compiled by former Osage Nation Museum employee Lou Brock; the Act of June 28, 1906, 34 Stat. 539, as amended; and Fletcher v. US Court of Appeals (1997).

‘The Allotment Act of 1906’ … passed by the U.S. Congress, provided that leases for oil, gas and other minerals be made by the Osage Tribal Council. And, the OTC was to be chosen by individuals whose names appear on the roll at that time.   

In 1979, Logan v. Andrus, seven Osages filed a lawsuit alleging that the OTC was created solely to dispose of certain tribal assets and to manage mineral resources. It was not intended to be a general governing body. The Court affirmed that the Osage Tribal Council is the general governing body. 

In 1992 Tulsa District Courtfour individuals of Osage ancestry brought … suit challenging franchise restrictions. (Fletcher et.) In this case, the judge required the formation of an Osage Commission to conduct public hearings on the formation of a new government.

On July 17, 1993, The Referendum Conducted“voting to form a constitution but leaving the Minerals Council in place.

On February 4, 1994, The Electorate Voted to adopt the new Constitution, under court order. 

October 6, 1995: Osage Tribal Councilfiled a notice of appeal in District Court to reverse the lower court order.

I was a member of the Osage Tribal Council in 1995. I remember our legal council, Browning Pipestem, advising us that allowing a Court to dictate our form of government weakened tribal sovereignty. Such action, rather inaction, by the Tribal Council could conceivably set precedent for future courts and other tribal governments.   

June 10, 1997 U.S. Court of Appeals for the 10TH Circuit in Denver,overturned Fletcher, et. al. returning all governing power to the Osage Tribal Council; National Council and its constitution are officially dissolved.”

Pipestem’s lawyering was proven correct as seen in the following quote from the U.S. Court of Appeals for the 10th Circuit.

“The principle that only Congress has the power to amend an otherwise proper federal statute is well settled. Congress prescribed the form of government in the 1906 Act as amended, thereby restricting the Tribe's power to create a form of government inconsistent with the statutory form.” (Fletcher v. United States No. 95-5208, VI Remedy, B. Appropriateness of Relief) 

I think it was a good thing that the OTC acted when they did to maintain and strengthen tribal sovereignty. I do not think the loss of the 1994 Constitution, expansion of membership and voting rights was a good thing. In my opinion it was a bad thing. Not everyone on that 1995 Osage Tribal Council agreed that loss of membership, voting rights and the1994 Constitution was a bad thing.