Martin Scorsese’s haunting true crime film, Killers of the Flower Moon, named for the book of the same title by David Grann, depicts the murders of members of the Osage nation in Oklahoma for their lands and mineral rights during the Reign of Terror in the 1920's.
This week marks the anniversary of Oklahoma statehood (November 16, 1907) so it seems fitting to focus some time and energy to that part of the country - and that awful time period related to the Osage and their headrights. First, let’s jump back a little bit to get a framework in regard to how indigenous people have fared in American courts.
Early in this nation’s founding, the Supreme Court noted that the Cherokee Nation possessed a fully formed government and its people were wholly capable of governing themselves, yet “[t]heir relation to the United States resembles that of a ward to his guardian.”
They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion [sic] with them, would be considered by all as an invasion of our territory, and an act of hostility.
Okay, Justice Marshall.
The Court expounded on that idea and averred that the Cherokee Nation was under the protection of the federal government and therefore the state of Georgia had no authority to enforce state laws in that region. Worcester v. Georgia, 31 U.S. 515 (1832)(overruled in Oklahoma v. Castro-Huerta, 142 S.Ct. 2486 (2022)).
Worcester v. Georgia rabbit hole: We will certainly revisit Worcester v. Georgia and Oklahoma v. Castro-Huerta in the not too distant future. These cases – as with all issues related to indigenous people – are complex and have significant ramifications. In brief, the defendant in Worcester v. Georgia – a non-Indian - was tried, convicted, and sentenced to years of hard labor in the state of Georgia for living on Cherokee land without a license. The Supreme Court’s decision overruled that noting a lack of jurisdiction by the state. In Oklahoma v. Castro-Huerta, the defendant, a non-Indian - was convicted of child neglect in regard to his stepdaughter who lived in Indian Country. He was sentenced to 35 years of imprisonment in the state of Oklahoma. he appealed due to a lack of jurisdiction. The high court of Oklahoma vacated his conviction for the reasons he stated. The Supreme Court reinstated it determining that the state and the federal government both had jurisdiction to prosecute crimes by non-Indians against Indians in Indian Country.
This fragile legal existence – where, like the Cherokee, the Osage Nation was fully capable of governing itself and yet was also a ward of the federal government created the backdrop for the notion of headrights so integral to the driving force behind W.K. Hale’s conspiracy to murder members of a family in order to gain their land and money. Two things are important to note: (1) as terrifying as Killers of the Flower Moon makes life seem for the Osage, reality was a lot worse with dozens more people slaughtered and fear mounting daily, and (2) in 1925, it became unlawful for anyone not a member of the Osage Nation to inherit headrights which, along with the imprisonment of the main conspirators in this particular serial murder plan, did seem to draw a close to the murders.
One other sad sidenote to the homicides elucidated in the film – the husband and young son of Nettie Brookshire, the 19 year old domestic servant in the employ of the Smiths whose house was blown up at the direction of W.K. Hale, sued Hale, Ernest Burkhart, and John Ramsay for wrongful death. A portion of the claim rested on the fact that the family could not file within the 2-year statute of limitations due to obfuscation of the facts related to the explosion by those who perpetrated it. Nettie’s husband was denied any recovery. But the case was remanded in regard to the young child, Roy, and I just could not discover if he was able to obtain any remuneration from those responsible for murdering his mother. Brookshire v. Burkhart, 141 Okla. 1 (1929).
In addition to callous and brutal crimes, there were also other ways non-Osage sought headrights and access to money belonging to members of the Osage nation.
In Everidge v. State, 50 Okla.Crim. 144 (1931), the defendant forged the signature of an Osage woman in order to get a deed to her property. He was sloppy, though and was convicted. The only help he got from the court was a reduction in sentence from 18 years to 10. It does appear that the Osage woman got to keep her property.
In Arms v. State, 49 Okla.Crim 34 (1930), the non-Indian defendant was married to an Osage woman with 3 children from a prior marriage (with the implication that these three children were all full-blooded Osage as well). He was convicted of killing a man who paid a little too much attention to his wife. In many ways this was an unremarkable case. It is curious, though, that the prosecution submitted evidence to suggest that the victim made a reasonable living and was not in need of money. Ostensibly, this evidence demonstrated that even if the victim paid attention to the defendant’s wife it had nothing to do with going after her and her children’s headrights. Clearly a prosecutor that does not understand the love of money is an endless cycle.
Williams v. Hewitt, 74 Okla. 283 (1919) has to do with appointing a guardian for minor children after a divorce. The mother was Osage. The father was not. After the divorce, the father gained custody of all of the children including their headrights and interests. At the time, every member of the Osage nation received money from the interest on a trust from the sale of land in Kansas as well as rental income on their lands. The money for minors went to their parents until the children turned 21. In this case, a mother who just lost her children in a divorce wanted the court to appoint a fiduciary to protect her children’s inheritance for them and not for the benefit of their father. She lost.
In another case involving divorce – this time the mother received custody of the child…but the father was Osage and the mother was white. The child died without issue, spouse, or a will. The question for the court involved who inherited her headrights. The mother claimed that she was entitled to all of the rights; the father averred that their daughter’s interests should be shared equally between the parents. The trial court found for the mother. After significant discussion of the several acts of Congress and the decisional law, the Supreme Court of Oklahoma reversed and ordered that the shares be divided equally. In Re Mosier’s Estate v. Jones, 109 Okla. 228 (1925).
Illustrating some serious sexism and paternalism is the case of In Re Winnett’s Guardianship, 112 Okla. 43 (1925). There, a 24-year-old Osage woman with tuberculosis was encouraged by her doctor to move to New Mexico. Her rents and income as a member of the Osage nation would more than cover the cost for this journey and setting herself up in a new home. However, she was “restricted” (as a ward of the federal government) and required a guardian to be appointed in order to access her own money. The lower court granted her request. The superintendent at the Osage Agency appealed.
Here is the rub – it is unlikely that Nellie White Winnett was incompetent. Indeed, she appeared to be quite savvy. (The person appointed as her guardian noted she seemed “extra bright” …"for an Osage allottee"…) What seems clear is that she was entitled to $20,000 which was “restricted” money to which she could only get access if the restrictions were lifted by an act of Congress or if she had a guardian. Congress was not about to act, so she went a different route – she claimed to be incompetent in order to get a guardian appointed which would provide her with access to money that – by all rights – was hers in the first place.
The Supreme Court of Oklahoma had other plans.
… this court is of the opinion, that if the said Nellie White Winnett desires to go to New Mexico for her health, and as she has no business interests in Oklahoma save and except the renting of her farms, it would be more beneficial to the petitioner to place the renting of the farms in the hands of some reputable real estate dealer, and, in addition to this, she has a husband who she does not contemplate taking to New Mexico with her, and has a son in school.
It is therefore the opinion of this court, after carefully examining the record and reading all the evidence, the same is wholly insufficient to prove Nellie White Winnett mentally incompetent to transact the ordinary business affairs of life, or is liable to be imposed upon by artful and designing persons, and the judgment of the trial court appointing a guardian should be reversed, and this cause remanded, with instructions to the court below to vacate the order appointing Wm. Riber guardian of the person and estate of Nellie White Winnett, and to dismiss the petition praying for the appointment of such guardian.
Finally, there is Denoya v. Arrington, 163 Okla. 44 (1932). In that case, a member of the Osage nation who had been granted a certificate of competency allowing her to alienate her property (because she was half-Osage; full blooded Osage remained restricted), devised a will. As with all of the Osage, her will had to be approved by the Department of the Interior. At issue was – of course – the benefit of her headrights. Ms. Odell Denoya Bighorse died in debt to the tune of about $35,000. Her creditors wanted access to the income from her headrights and the way to do that would be to leave the estate open where the future income would be used to satisfy the debt denying her legatees access to any inheritance in the meantime. That is what the lower court decided would be fair.
The Oklahoma Supreme Court determined that while any income from her headright accrued prior to her death was part of the estate of Odell Denoya Bighorse and available to creditors; not so for future income. To allow future income from a headright to be used to satisfy past debts of a decedent would encumber the headright in a manner contrary to the federal laws surrounding the headrights in the first place.
These cases and these events are not some distant past. They are not so long ago at all. They say the Osage called May the flower-killing moon because taller plants crowded out the blooming wildflowers over the hills of Oklahoma. But, those wildflowers do not really die; they come back year after year and the story gets retold. Indeed, this American story is still being written. There is still time to acknowledge all of the wrongs and work to knit together all of the different cultures here in the United States as we continue to form a more perfect union, establish justice, and ensure domestic tranquility. For everyone.