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What Is Indian Country? Supreme Court Asked Not to Hear Osage Diminishment Case

WASHINGTON – A legal brief filed with the U.S. Supreme Court urges it not to hear a reservation diminishment case known as Osage Nation v. Irby.

Tribal officials have long argued that Osage Nation was never legally disestablished after an allotment act in 1906 diminished the reservation. Congress had previously passed a law in 1872 that created a reservation for the Osage Nation of Oklahoma, but the 10th Circuit Court of Appeals later ruled that the tribe was diminished due to the 1906 allotment act.

Principal Chief John Red Eagle said in a statement that it has never been legally proven that the Osage Nation tribal reservation was ever disestablished. The contention is important because tribal officials believe that the state of Oklahoma has no jurisdiction to assess personal income taxes on Osage citizens who live on Indian land and earn income within the original reservation boundaries of Osage County. Current law says that tribal citizens who work for the tribe and live in “Indian country,” or recognized Indian land, are exempt from state taxes.

“The court of appeals had dismissed the case on the ground that the Osage Nation’s reservation here in Osage County had been disestablished,” Red Eagle said in his statement. “The Acting Solicitor General notably did not state that our reservation was disestablished. It says that ‘it is unclear whether Congress went so far as to disestablish the Osage Reservation…’”

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The tribe originally filed suit on the matter in 2001 against the Oklahoma Tax Commission in 2001; it now seeks a Supreme Court review as to whether a court of appeals decision dismissing the case was wrong.

The state, meanwhile, contends that the reservation lost its legal status when it was incorporated into Oklahoma at statehood in 1907, and that only land held in trust by the federal government is considered “Indian country.”

Obama administration lawyers agree that it’s unclear whether Congress disestablished the reservation, but they still could have chosen to still make a legal argument that the Supreme Court should force Osage citizens to pay taxes. They chose not to go that route, choosing to argue that the case should not be heard because it could affect case law in diminishment cases.

“The unique statutory and historical circumstances of Oklahoma tribes in general, and the Osage Nation in particular, make this case an especially poor vehicle for addressing issues of reservation disestablishment, which are inherently statute-specific and fact-bound in any event,” Justice lawyers wrote in their brief, filed in May.

According to local press reports, a final resolution to the reservation question could affect thousands of members of the Osage Nation who live and work in Osage County.