William S. Fletcher, third from left, is the lead plaintiff in Fletcher v. U.S.. He is seen here in January 2016 with Osage Congressman Otto Hamilton, far left, Principal Chief Standing Bear, Osage Congressman R.J. Walker and Assistant Principal Chief Raymond Red Corn. Photo: Osage Nation Communications

Law | National | Trust

Osage Nation beneficiaries still fighting for accounting despite setback in court

Thursday, May 4, 2017

Citizens of the Osage Nation who are seeking a long-overdue accounting of their trust funds have suffered a setback in their historic lawsuit.

But while attorneys aren't planning to take the case to the nation's highest court at this stage, they continue to fight for justice on behalf of thousands of Osage beneficiaries. They note that 5 of the 6 original named plaintiffs in Fletcher v. U.S. have passed on without seeing the promised accounting.

"Fletcher is the last one standing," said attorney Jason Aamodt, referring to Osage elder William S. Fletcher, the lead plaintiff.

On behalf of Osage citizens whose oil, gas and other resources have been extracted in Oklahoma for more than a century, Fletcher secured a landmark victory that required the federal government to account for the payments associated with those activities. But the Bush administration, and then the Obama administration, balked at providing the information, which would help beneficiaries determine whether they have been paid everything they are owed.

By the time the Trump administration inherited the lawsuit in January, the 10th Circuit Court of Appeals had already scheduled arguments for the third time in the case. But the change in power didn't affect much -- government attorneys representing Secretary Ryan Zinke, the new leader of the Department of the Interior, sought to curtail Fletcher's win.

A sign on the Osage Nation in Oklahoma. Photo: Jimmy Emerson

At the hearing in Denver, Colorado, on March 22, they insisted that Fletcher is not entitled to an accounting that goes back to 1906. That's when Congress broke up the Osage Nation and ordered the underlying mineral estate to be held in trust for individual tribal citizens.

The court agreed. In an April 21 decision, a panel of three judges ruled that the accounting need only go back to 2002, when Aamodt and co-counsel Amanda Proctor, who is an Osage citizen, filed the lawsuit.

The reason? Going back to 1906 would take too much time and cost too much money, according to the unanimous decision.

Some of the documents may no longer exist, Judge Paul Joseph Kelly Jr. observed, so "requiring the government to sift through more than 100 years of records does not achieve the balance we envisioned" when the court, in an earlier stage of the case, upheld Fletcher's right to the accounting.

While Fletcher has the option of asking the 10th Circuit for a rehearing before a larger panel of judges or taking the case to the U.S. Supreme Court, Aamodt and Proctor said they aren't going to pursue those avenues. The accounting, despite its limited scope, is due in six months and the results will help determine what happens next in the case.

"The Osages have been waiting 108 years for an accounting," Aamodt said.

Leaders and citizens of the Osage Nation at the October 11, 2011, announcement in Washington, D.C., of a $380 million settlement to the tribe's trust fund lawsuit. Photo: U.S. Department of the Interior

Going forward, some guidance might be found in the $380 million settlement that the Obama administration reached with the Osage Nation back in 2011. The payout was one of the largest of the 100-plus tribal settlements that were reached during the Obama era.

It's also one of the reasons why the Obama administration and, at one point, the Osage Nation, tried to derail Fletcher's case. The government essentially argued that the accounting was not required because the settlement put that issue to rest.

The 10th Circuit disagreed. In a unanimous decision authored by Neil Gorsuch -- who is now serving on the Supreme Court after being chosen by President Donald Trump -- said the trust duty owed to the tribe extends to its citizens.

Regarding the settlement, Gorsuch offered some thoughts in the September 17, 2013, ruling. "Indeed, one can’t help but wonder why the government hasn’t already offered to give the plaintiffs what it has given the Nation," he wrote.

The 1921 murder of Osage Nation citizen Anna Brown was one of the most complicated investigations in the history of the Federal Bureau of Investigation. Photo: FBI

As they wait on the promised accounting, attorneys say their clients are open to settlement talks with the new administration. Fletcher, who is 77 years old, "would like to see a just and good result," Aamodt said.

"The results of this litigation will really be meaningful to citizens of the Osage Tribe," he said. An estimated 5,000 could see accountings for the first time in their lifetimes.

"We're still proud of the results that we obtained on the previous two appeals," added Proctor. The 2013 decision was preceded by a 2005 ruling from the 10th Circuit that also went in Fletcher's favor on the accounting issue.

The latest decision comes amid renewed focus on the tragedies suffered on the Osage Nation after mineral extraction began in the early 1900s. A new book recounts the dozens -- and possibly hundreds -- of tribal citizens who were murdered in an attempt to claim their trust payments.

Killers of the Flower Moon: The Osage Murders and the Birth of the FBI has seen critical acclaim and a lucrative payout for author David Grann. According to Deadline Hollywood and Variety, he sold the film rights for the Osage story for $5 million even before he finished writing it.

Among the original Fletcher plaintiffs, Charles Pratt passed away in 2015 at the age of 71. Cora Jean Jech died in 2012 at the age of 80. Juanita West passed on in 2010 at the age of 83. Betty Wood died in 2009 at the age of 95.

10th Circuit Court of Appeals Decision:
Fletcher v. U.S. (April 21, 2017)

Prior 10th Circuit Court of Appeals Decision:
Fletcher v. U.S. (September 17, 2013)