Tax Commission files rebuttal to Osage
BY D. RAY TUTTLE

The Journal Record

TULSA – The Oklahoma Tax Commission told the 10th Circuit Court of Appeals to reject a “magic words” requirement from the Osage Nation and deny a rehearing of the tribe’s case against the state of Oklahoma.

The OTC filed its response on Friday to the Osage Nation’s request that the entire 11 members of the U.S. 10th Circuit Court of Appeals rehear the tribe’s case. The Osage sought the rehearing on April 2, following the court’s ruling in favor of the Tax Commission on March 5.

The Osage mischaracterized that March 5 decision, the OTC said.

“The Nation advances unsupported conjecture about the consequences of a sound decision fully supported by undisputed facts of record,” the OTC filing said. “The Supreme Court has never required statutory language explicitly expressing intent to disestablish reservation boundaries.”

The Osage Nation contends it has a federally recognized reservation, which makes its tribal members living and working within the boundaries of the reservation, under federal law, exempt from paying state income taxes.

The court concluded the reservation no longer exists. Therefore, judges did not address the taxation issue.

The OTC has contended that the reservation was disestablished, or terminated, a century ago.

But the 10th Circuit panel improperly inferred congressional intent to disestablish and terminate the boundaries of the Osage Indian Reservation despite any statutory language indicating that, said Osage Nation Chief Jim Gray earlier this month.

“This is unprecedented since neither the Supreme Court nor the 10th Circuit has ever found diminishment of an Indian reservation without affirmative language of that intent within the body of the statute,” Gray said.

According to Osage Nation legal counsel, the U.S. Supreme Court has consistently held that statutory language is the best evidence of congressional intent, and until now, the federal courts have always ruled accordingly.

However, the OTC said decisions made in 1906 – the Osage Division Act and the Oklahoma Enabling Act – are “rife with evidence of congressional intent to disestablish the reservation.”

The tribe is advancing “unsupported conjecture about the consequences of a sound decision fully supported by undisputed facts of record,” the OTC said. “The Supreme Court has never required explicit language expressing intent to disestablish reservation boundaries.”

In its filing, the OTC asked the court to reject a “magic words” requirement favored by the Osage that attempted to “decipher earlier intentions.”

The court’s March 5 decision does not adversely affect other tribes, as the Osage contend, the OTC said in its rebuttal.

“The decision does not threaten the broader effect the Osage predicts,” the OTC said. The tribe’s “ominous predictions” stem from a misperception of earlier Supreme Court rulings, the OTC said in its filing.

“And, perhaps not surprisingly, from a profound ignorance of the record,” the OTC said.

The decision rests on a set of facts regarding the history surrounding the Osage Division Act and the subsequent history of Osage County, the OTC said.