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

Another Indian law case in limbo as high court turns to Trump again

Another Indian law case hangs in limbo as the nation's highest court once again asks the Trump administration for guidance despite a lack of leadership in key executive branch positions.

In an order list on Monday, the U.S. Supreme Court invited the Department of Justice to share its views in Osage Wind v. United States. The move marks the third time since October that the justices have delayed action on a tribal case by turning to the executive branch.

And since many of the top Indian policy jobs in Washington, D.C., remain unfilled over a year into the Trump administration, the development speaks to a larger picture of neglect. Without advocates in their corner, tribes are finding that they aren't at the table when it comes to matters affecting their interests.

"Every single executive order and tribal consultation policy requires early and often consultation on issues affecting Indian tribes, and for good reason," Cynthia Boone, a representative of the Osage Minerals Council from the Osage Nation, told key members of Congress last week.

Boone directed her comments at a controversial reorganization at the Department of the Interior. She called on lawmakers who control the agency's funding to prevent Secretary Ryan Zinke from spending any money on it until he engages in consultation with Indian Country.

"It's been more than a year since Zinke announced his reorganizational plan and not a single meeting has been held with the tribes," Boone asserted.

Indianz.Com on SoundCloud: Cynthia Boone - Osage Minerals Council - American Indian/Alaska Native Public Witnesses - May 9, 2018 PM Session

Tribes normally rely on the Assistant Secretary for Indian Affairs, a political position within Interior, to help them advance their cause amid competing and often conflicting agendas in Washington. But the Trump administration's pick for the job, Tara Sweeney, barely got her confirmation hearing last week after months of delays at the federal level.

Though she has not taken part in the reorganization or any other decisions at Interior while she awaits consideration in the Senate, Sweeney acknowledged that tribes need someone like her to speak out when necessary. She even pledged to advocate across the entire administration, after being told of a controversial decision to treat tribes as a "race" instead of governments when it comes to health policy.

"If we have to educate other departments about Indian Country," Sweeney told the Senate Committee on Indian Affairs last Wednesday afternoon, right around the same time Boone was testifying, "I am more than willing to do that."

That kind of cross-agency discussion is central to the case involving the Osage Nation. Though the federal government, during the Obama administration, filed suit on behalf of the tribe in order to address the impacts of a large-scale wind energy project known as Osage Wind, the Department of Justice effectively abandoned a portion of the original complaint after losing a key decision.

The tribe wasn't ready to give up, however. But government attorneys waited until the last minute to inform the Osage Minerals Council, which handles activities affecting the tribe's trust resources, that they weren't going to challenge that decision.

Tara Sweeney, the Trump administration's nominee to serve as the Assistant Secretary for Indian Affairs, has vowed to advocate for tribal interests if she is confirmed to the post. Photo: Navajo Nation Washington Office

"On the final day of the appeal deadline, OMC received a phone call from the United States communicating the government’s intention not to appeal," Judge David M. Ebel of the 10th Circuit Court of Appeals wrote in a unanimous ruling last September, emphasizing the late nature of the call.

"OMC then scrambled to protect its interests," Ebel continued.

Those efforts proved crucial. The decision that the government refused to appeal was wrong, the 10th Circuit concluded -- the tribe should have been consulted about the wind farm, the court said.

"The Osage Nation (acting through OMC) in fact owns the beneficial interest in the mineral estate that is the subject of this appeal," Ebel wrote in the 27-page ruling. "The district court’s decision effectively forced OMC to watch from the sidelines as Osage Wind disrupted the mineral estate, which is owned by OMC’s tribe."

The decision opened the door for the tribe to recover monetary damages from the operators of the wind farm, which produces enough power for 45,000 homes in Oklahoma. That issue is in fact at the heart the updated complaint in the case, so the federal government hasn't abandoned the Osages altogether.

"By placement of the turbine foundation and other materials, defendants trespassed on the Osage mineral estate, in violation of law and, in doing so, caused damage to the estate," government attorneys alleged in an amended complaint for damages. "The insertion and placement of materials or structures in the mineral estate is a continuing trespass and diminishes the estate or diminishes the use and enjoyment of the mineral estate."

Indianz.Com on SoundCloud: Tara Sweeney Confirmation Hearing - Assistant Secretary for Indian Affairs

But all of that is on hold as a result of the Supreme Court's deference to the executive branch because a brief from the Trump administration is likely several months away. In the meantime, the wind farm gets to operate without interference -- effectively, the developers have already achieved victory, albeit a temporary one.

Basically, what the justices did was issue a CVSG, or a call for the views of the Solicitor General, as the influential Turtle Talk blog once explained. The Solicitor General is the official at the Department of Justice -- a political post, incidentally -- who is in charge of Supreme Court litigation and strategy.

The court did the same thing last October with Washington State Department of Licensing v. Cougar Den, a closely-watched treaty rights case affecting a business on the Yakama Nation.

Seven months later, the Trump team has yet to offer its views.

At issue is whether a gas station on the reservation must pay taxes to the state of Washington. Relying on the 1855 Yakama Treaty, the state's highest court ruled that the Cougar Den did not have to pay those taxes because the government-to-government agreement guarantees a right to "free and open access" to the commercial market.

A second CVSG was issued in January in Herrera v. Wyoming, another treaty case. At issue is whether the state of Wyoming can prosecute a citizen of the Crow Tribe for hunting on treaty territory.

The Department of Justice has yet to submit a brief in that case as well.

Besides the three CVSGs, there are signs of delay with a fourth Indian law case, another one with major implications for tribal interests. The Supreme Court was poised to take action on Royal v. Murphy, a reservation boundary case affecting the Muscogee (Creek) Nation, after considering the petition at a closed-door conference on Friday.

But the petition was instead pushed to another conference this Thursday, according to Docket No. 17-1107. No reason was given for the delay.

Tribes and their advocates are closely watching the matter. At issue is whether Congress diminished the boundaries of the Muscogee Nation in Oklahoma in a way that deprives the tribe and, by extension, the federal government, of jurisdiction over the tribe's homelands.

The 10th Circuit -- the same one which ruled in the Osage case -- sided with the tribe. But the state of Oklahoma has asked the Supreme Court to overturn the victory in hopes of keeping Patrick Dwayne Murphy, Muscogee citizen who is accused of murdering a fellow tribal citizen, on death row.

Ironically, the Department of Justice rushed to express its views in the dispute -- without even being asked to do so. Oklahoma's former attorney general Scott Pruitt, whose name appeared on briefs when the case was in the lower courts, now serves in the Trump administration.

According to government attorneys, the Muscogee Nation was disestablished because "Congress was focused on a single, unique goal—to create an entirely new state—but it pursued that goal through a series of statutes that sought to dismantle the tribe, abolish its government and disestablish its national territory, and assimilate its members into the citizenry of the new state of Oklahoma."

If the petition is considered this Thursday, the Supreme Court could announce its move as soon as Friday. But there is no guarantee the justices will take decisive action -- they could in fact issue another CVSG, delaying resolution yet again in an Indian law case.

10th Circuit Court of Appeals Decision:
United States v. Osage Wind LLC (September 18, 2017)

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