Court clerk: Osage chances for rehearing slim
BY D. RAY TUTTLE

The Journal Record

TULSA – Chances are slim that the entire 11-member panel of the 10th U.S. Circuit Court of Appeals in Denver will hear the Osage Tribe’s request for a rehearing, said Court Clerk Elisabeth Shumaker.

The Osage Nation on April 2 filed a motion for rehearing, continuing its appeal of a federal court decision that rejected the tribe’s attempt to exempt members who live and work in Osage County from state income taxes.

However, the court only agrees to an “en banc,” or full panel hearing, about 5 percent of the time on average, Shumaker said.

“That is a general statistic that I can tell you,” Shumaker said. “Whether or not the court grants the request is up to them.”

In other action, the 10th Circuit has ordered the Oklahoma Tax Commission to file a response to the Osage Nation’s request for a rehearing.

The OTC has until Thursday to respond, Shumaker said.

“They ordered a response. Once that is submitted, then they will consider all the pleadings and make a decision,” she said.

The standards for granting a rehearing are high, Shumaker said, which is why 95 percent of the requests are denied.

Osage Chief Jim Gray has been confident that the tribe will win a rehearing.

“We are extremely confident in our petition for rehearing,” Gray said earlier this week.

The tribal nation northwest of Tulsa has contended for years that Osage County also constitutes the Osage reservation and that tribal members who live and work there should not have to pay state tax.

But the 10th U.S. Circuit Court of Appeals on March 5 affirmed a lower court decision in the tribe’s lawsuit against the OTC. The federal appeals court told the Osage Nation that its reservation was dissolved a century ago and that the court did not need to address whether its residents were exempt from state income tax.

A three-judge panel of the 10th Circuit upheld a January 2009 ruling against the tribe by a federal judge in Tulsa.

The OTC, in its original filing, said the reservation was disestablished through the Osage Allotment Act of 1906.

“Payments indicate an intent to terminate the reservation,” the OTC’s filing said.

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,” Gray has said.

“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.