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GENERAL MEMORANDUM 11-086

GENERAL MEMORANDUM 11-086
Supreme Court Declines to Hear Appeal in Osage Nation v. Irby

On June 27, 2011, the U.S. Supreme Court declined to review a federal appeals court decision holding that the Osage Reservation had been disestablished. Osage Nation v. Irby, No. 10-537.

In March 2010, the U.S. Court of Appeals for the Tenth Circuit decided that the Osage Reservation had been disestablished and therefore, that tribal members living within Osage County and working for the Tribe were required to pay state income taxes. The court considered the factors from the Supreme Court case of Solem v. Bartlett, 465 U.S. 463 (1984), the explicit statutory language of the Osage Allotment Act that opened the reservation for allotment, the surrounding circumstances and "subsequent events, including congressional action and the demographic history of the opened lands."

The Supreme Court's opinion in Solem stated that when the language of an allotment act does not clearly suggest that reservation boundaries are changed, diminishment or disestablishment can only be found if there is unequivocal evidence that at the time the act was passed there was a widely held belief that the reservation would shrink as a result of the act. Despite this high burden, and lack of any clear evidence that Congress intended to disestablish the reservation, the Tenth Circuit found that while there was no payment to the Osage Nation and the statutory language seemed to suggest that the reservation was not diminished or disestablished, the other factors indicated that the reservation had been disestablished.

In particular, the court emphasized the importance of events of that period over subsequent legislation concerning the reservation. While the Nation argued that the court should consider recent legislation referring to the Nation's reservation as still being in existence, the court held that greater weight should be given to contemporaneous statements made around the time that the Act was passed. Without considering any contemporaneous statements from members of Congress, the court looked to opinions of historians, and a few isolated quotations from tribal members to find that there was unequivocal evidence that the reservation was considered disestablished.

Lastly, the court contemplated the modern demographics of Osage County. After statehood, population of non-Indians and the percentage of non-Indian landowners grew considerably. The court heavily emphasized the shift in demographics and the low percentage of land held in trust for Indians in deciding that the reservation had been disestablished. The Tribe asked the Supreme Court to review the case.
Before acting on the case, the U.S. Supreme Court asked the Department of Justice for its views on whether the Court should review the case. The Department recommended against review. The Department reasoned that the Tenth Circuit had applied the proper law, but because disestablishment cases are very fact-specific, reviewing the Tenth Circuit's application of the law would be of little consequence in the future for other tribes, including tribes in Oklahoma, because the circumstances of the Osage Nation are unique. The Department of Justice did not address whether the Osage Reservation had, in fact, been disestablished, but said that the Tenth Circuit reached the proper conclusion in finding that the income of the tribal member working for the Tribe and living within Osage County was taxable because of the "unique degree of state authority within the original reservation boundaries."

There are three main conclusions resulting from the Supreme Court's refusal to hear the case. The first is that the ruling of the Tenth Circuit that the Osage Reservation has been disestablished stands, and is a final decision as far as the Osage Nation is concerned. Second, the decision was fact-specific, and while the principles applied by the Tenth Circuit in the case would apply to other tribes in the states within the Tenth Circuit, those other tribes are free to argue that their facts are not the same as those in the Osage case, and therefore those principles do not apply to them. Third, the principles applied by the Tenth Circuit in the case are not binding precedent in other circuits, so that tribes in those other circuits are free to argue that those principles are incorrect and should not be followed. Given the recent trend of Supreme Court decisions being decided against tribes and tribal sovereignty, if the Court had elected to hear the case, the outcome would not likely have been favorable for tribal interests. At least for the moment, the Tenth Circuit's unfavorable interpretation of the factors from Solem v. Bartlett is limited to the Tenth Circuit.

Please let us know if we may provide additional information regarding this important development.

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Inquiries may be directed to:
William Norman (wnorman@hobbsstraus.com)
Laura Codopony (lmcodopony@hobbsstraus.com)

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