Osage Wind, LLC, et al. v. Osage Minerals Council

This suit was filed by the United States as trustee for the Osage Nation. Neither the Osage Nation nor the Osage Minerals Council intervened or otherwise participated in any capacity in the district court proceedings. The United States opted not to appeal the district court’s adverse judgment. The first question presented is: Whether the court of appeals had jurisdiction over the appeal filed by a nonparty when the nonparty did not participate in any capacity in the district court proceedings.

The “Osage Act” divided the surface estate from the mineral estate in what is now Osage County, granting the former to individual tribe members and the latter to the Osage Nation. Act of June 28, 1906, ch. 3572, §§ 2-3, 34 Stat. 539, 540-544. Although both estates were intended to benefit Indians, the Tenth Circuit invoked the Indian canon of construction to benefit only the Osage Nation by distorting the clear regulatory definition of “mining” to include the removal and non-commercial manipulation of dirt and rocks in order to construct a structure on the surface. The second question presented is: Whether the Tenth Circuit improperly invoked the Indian canon of construction to deprive surfaceestate owners who are members or successors-ininterest to Indian tribe members of important property rights by overriding clear regulatory language for the express purpose of favoring the economic interests of an Indian tribe without examining congressional intent.