ACLU of Oklahoma supports the argument the Osage Reservation, co-extensive with Osage County, still exists. This argument is a natural and seemingly an inevitable conclusion from the Supreme Court’s decision in McGirt v. Oklahoma. In McGirt, the Supreme Court held the Muscogee Reservation, which includes most of Tulsa County, still exists. The Supreme Court also discussed the mode of analysis to reach a determination of whether a reservation still exists.
Based on McGirt, the Oklahoma courts have so far said the Choctaw, Cherokee, Chickasaw, and Seminole reservations also still exist. That is, at least, all the Five Tribe reservations remain extant per McGirt analysis. Granted, some of these cases are stayed for the time being but the logic of McGirt plainly applies to these other reservations and not only to them.
The Osage Reservation is another to which the logic of McGirt applies to show the reservation remains extant. It must be acknowledged, however, that the Tenth Circuit said ten years ago - in a tax challenge case - that the Osage Reservation had been disestablished. The State of Oklahoma contends the tax case settled the matter forever and even for those uninvolved. However, the ruling in the tax case is entirely inconsistent with the Supreme Court’s subsequent decision in McGirt. It is inconsistent, and incompatible, with McGirt in two ways. First, after determining there was no plain language diminishing or taking back the reservation promised to the Osage, the Tenth Circuit proceeded to consider other circumstances. McGirt held that the plain language, or absence thereof, is controlling. Second, when the Tenth Circuit considered other circumstances, it emphasized its impression that the Muscogee reservation had been disestablished driving the logic the Osage Reservation had been disestablished too. Given McGirt’s holding the Muscogee Reservation was actually never disestablished, the Tenth Circuit ruling was based on a false premise. Indeed, the prior Tenth Circuit ruling was thus both based on an improper analysis and this false premise.
The Osage circumstance, the treaty promise the Osage Nation was given in exchange for other lands and the subsequent history, is actually quite similar to the Muscogee and the other Five Tribes. Per McGirt the conclusion the Osage Reservation has not been disestablished is quite compelling; it is just not yet decided by an Oklahoma appellate court.
There is, however, a case currently pending before the Oklahoma Court of Criminal Appeals in which Oklahoma is holding in its custody a person, as in McGirt and as in the Five Tribes cases mentioned, over whom it lacks jurisdiction. Obviously, there are other such cases but in this particular one the claim is briefed before the Court of Criminal Appeals. This person is represented by a pre-eminent Oklahoma law firm, Brewster and DeAngelis, and ACLU is consulting on the matter. The Osage Nation itself is participating as a friend of the court (amicus) and has provided, as one might expect, a fascinating illumination of its history to include the treaty history.
The merits arguments mentioned above are, in a nutshell, those before the court.