Osage Nation battles AG’s office over water
Geoffrey Standing Bear, chief of the Osage Nation, has been fighting the same battle in different arenas for four decades, carrying on a tradition of tribal sovereignty far older than himself.
“We will fight — we will always fight — to defend our land,” he said Friday.
Standing Bear’s latest skirmish began Sept. 29, when a New Mexico attorney, Maria O’Brien, sent him a letter on behalf of the Oklahoma Attorney General’s Office.
O’Brien wrote that a recent water well permit granted by the Osage Nation’s Environmental and Natural Resources Department was unlawful because the tribe doesn’t own the water of Osage County.
The letter came as a surprise to Standing Bear, not only because he did not anticipate opposition to the water well but because it came from an out-of-state lawyer, not one of the many people he knows and respects in state government. He had been working with the governor’s office for a year on a gaming compact before the letter arrived.
“Why didn’t the same people I’ve been talking to give me a call?” he asked.
A few hours later, Attorney General Mike Hunter called Standing Bear to open a channel of dialogue. The two plan to meet soon to discuss their disagreement, which goes to the heart of tribal sovereignty.
The permit
On Sept. 18, the tribe’s Environmental and Natural Resources Department issued its first permit to the Osage Nation Gaming Enterprise to drill for water west of a tribal casino. The tribe hopes to integrate water from the well into its irrigation system.
The slip of paper was historical, the culmination of more than a century of legal wrangling over Osage property rights.
In 1872, the Osage Nation purchased 1.5 million acres of land from the Cherokee tribe, creating what it considers to be a reservation, though the state disputes that designation. In 1906, federal legislation granted the tribe control of mineral resources.
“We never gave those water rights up,” Standing Bear said. “There’s no document I have seen or our lawyers have seen that says the Osage gave its water rights up. The state can’t show it because it doesn’t exist.”
The Osage argue their mineral rights extend to water in Osage County, in part because water is needed to extract oil, a mineral resource. The state argues the tribe holds only limited mineral interests that do not grant them authority over water.
Hunter, in a statement, said the New Mexico law firm is handling the matter because they worked on previous water disputes in southeast Oklahoma. The attorney general said he has great respect for Standing Bear and the Osage Nation.
“I look forward to constructive discussions with Chief Standing Bear and am optimistic that we can resolve our differences in a way that respects the correlative interests of the state of Oklahoma and the Osage Nation,” Hunter said.
‘Pattern of conduct’
In her letter, O’Brien makes an appeal to compromise rooted in recent water agreements between the state and two other tribes: the Choctaw Nation and Chickasaw Nation. She calls them models for handling water disputes in Oklahoma.
“Unilateral claims to control of water such as represented by the Osage water regulations and the recent permit issued pursuant to those regulations are inconsistent with the collaborative approach necessary to address the complex issues and claims relating to the water resources vital to all Oklahoma citizens,” O’Brien wrote.
Standing Bear calls comparisons between his tribe and the two southeast tribes “ridiculous” and says the Osage Nation “rejects them 100 percent.” Because the Osage Nation purchased its land with cash in the 1870s, it is a sovereign nation on sovereign land and is beholden only to its own environmental permits, the chief says.
“This is part of a pattern of conduct by the state of Oklahoma that we believe is illegal,” he said of O’Brien’s letter.
Standing Bear, a lawyer by training, filed his first lawsuit in 1974 and hasn’t hesitated to file others in the 43 years since. He is amassing a team of lawyers to fight the state’s effort to, as he sees it, infringe on the sovereignty and economic vitality of the Osage people.
“This sort of behavior from the state of Oklahoma is not new to me, but it is new to the Osage Nation,” he said.
He expects the latest legal battle will follow the path of previous disputes, resulting in a settlement beneficial to both sides.
“We go to battle and we fight and along the way people will realize, perhaps, that we should sit down and talk,” Standing Bear said.