FAILED PROTECTORS: THE INDIAN TRUST AND KILLERS OF THE FLOWER MOON.

• Author: Fletcher, Matthew L.M.
• Position: Book review

KILLERS OF THE FLOWER MOON: THE OSAGE MURDERS AND THE BIRTH OF THE FBI. By David Grann. New York: Doubleday. 2017. P. 291. Cloth, $28.95; paper, $16.95.

INTRODUCTION

David Grann's Killers of the Flower Moon: The Osage Murders and the Birth of the FBI (1) details a story that is widely known in Indian country (2) but that has never before penetrated mainstream American culture: (3) the mass-murder conspiracy that haunted the Osage Indian Nation in the 1920s and that was known by newspapers at the time as the Osage Reign of Terror. (4) Grann's tale focuses on the family of Mollie Burkhart--including her mother, Lizzie Q. Kyle, and her sisters--all of whom were murdered except Mollie. Shedding light on a series of American tragedies is admirable, but Grann's focus on the Osage murder investigation as the "Birth of the FBI" is a sad joke. All along, it was the United States that held the threads of the lives of the Osage people. In a very real sense, it was the United States that was the criminal mastermind.

Worse, while Killers of the Flower Moon is a story of the federal government's broken promises to Indian people and Indian nations, a horrific part of American history, that story is not over. The conditions that the United States implemented that led to the Osage Reign of Terror remain in place in twenty-first-century Indian country. Law and order in Indian country in the twenty-first century is broken. Each year, thousands of women and children are victims of violent crime, (5) perhaps the greatest omission in Killers of the Flower Moon.

Broadly speaking, the federal government is the primary reason Osage people suffered and continue to suffer these outrages. The United States' encroachment on the Osage Nation's traditional homelands in what is now Missouri and Arkansas forced the tribe to undergo a series of migrations that ultimately placed the Osage Nation in Oklahoma. (6) The United States created the conditions that allowed local business interests and law enforcement to conspire to murder dozens of Osage people--and steal from many more-for years without consequence. The United States' limited response to these murders was too late and far too incomplete. All these failings derived from the government's failure to fulfill the federal-tribal trust relationship, the modern label for the historic legal obligation called the duty of protection.

This Review uses Killers of the Flower Moon as a starting point to highlight how Indian people in Indian country continue to be subjected to high crime rates. And yet, however horrible the Osage Reign of Terror was, the reality for too many Indian people today is much worse. This Review shows how policy choices made by all three branches of the federal government have failed indigenous people. Part I establishes the federal-tribal trust relationship that originated with a duty of protection. Part II explains how the United States' failure to fulfill its duties to the Osage Nation and its citizens allowed, and even indirectly encouraged, the Osage Reign of Terror. Part III offers thoughts on the future of the trust relationship in light of the rise of tribal self-determination. This Review concludes with a warning about how modern crime rates against indigenous women and children are outrageously high in large part because of the continuing failures of the United States.

1. PROTECTION

   Long ago, the United States undertook a legal obligation to Indian people and tribal nations called the "duty of protection." (7) Killers of the Flower Moon offers merely one example of how the federal government failed to meet that duty. This Part details the origins and scope of the federal government's duties to Indian people generally and to the people of the Osage Nation specifically.

   The federal government established the Osage reservation in 1872 through the Osage Act. (8) In 1906, the Osage Allotment Act severed the surface estate and mineral estate, resulting in the unusual circumstance in which the owners of the land on the surface do not own the minerals or other resources below. (9) The Act authorized the allotment of the Osage reservation, which transferred much of that land in fee to tribal members. (10) But the Osage Nation's ownership of the reservation's severed mineral estate was preserved--to be held in trust by the United States for the benefit of the tribe. (11) Oil and gas is plentiful on those lands (pp. 53-55). Each of the 2,229 Osage people at that time owned an equal, undivided interest in the mineral estate (p. 243).

   Eventually Osage citizens became wealthy, as wealthy as anyone on the planet, in Grann's telling of the story (p. 6). Historian Donald Fixico claims that companies paid at least $240 million in royalties to Osage people during this period, (12) a figure that surely would be in the billions in today's dollars. (13) The tragedy of Killers of the Flower Moon is that newly wealthy Osage Indians began to disappear or die under mysterious circumstances, seemingly murdered one by one (pp. 5-16, 31, 36, 67-69). Local law enforcement found no leads and initially prosecuted no one; the Oklahoma Attorney General charged the local sheriff with willfully refusing to enforce the law (p. 56). Local people, some of whom later would be convicted of murder, hired private investigators with Osage money (pp. 56-65). The Federal Bureau of Investigation (FBI), only recently formed, intervened (pp. 103-12). Grann tells the story of how non-Osage persons in Osage County thwarted local prosecutions, forcing the FBI to intervene in one of its first high-profile cases (pp. 92-96). Along the way, apparently due to the lack of cooperation from the locals, the FBI embraced modern law enforcement investigative work, which led to the prosecution of several non-Osage persons for the murder of several indigenous people (Chapters Nine to Thirteen, Nineteen).

   Grann is not a lawyer, so it is worth describing the legal environment in which the circumstances described in Killers of the Flower Moon arise. The foundation of federal Indian law is the legal relationship between the United States and federally recognized Indian tribes. (14) That relationship has gone through several shifts over the course of American history. For the past half century or so, the law primarily refers to that arrangement as a trust relationship. (15) For a century or more before that, the law generally referred to that relationship as a guardianship, with the federal government as teacher and protector and Indian people as the government's wards. (16) But these are merely metaphors. The relationship is best characterized as a duty of protection, which is how the United States and Indian nations first described the relationship in the earliest treaties and federal laws. (17) The duty of protection undertaken by the United States in relation to Indian nations in the early decades of the American Republic was not unheard of in international law, where it was recognized that superior sovereigns could take weaker sovereigns under their protection. (18)

   In the earliest federal Indian law decisions of the United States Supreme Court, during the tenure of Chief Justice Marshall, the Court confirmed the duty of protection the United States owed to Indian nations. The Court referred to Indian nations as "domestic dependent nations" and "distinct, independent political communities," confirming tribal nations' status as domestic, sovereign entities. (19) As domestic sovereigns, Indian tribes have the legal capacity under American constitutional law to negotiate and execute treaties with the United States. (20) Those Indian treaties and the relevant acts of Congress define, implement, and confirm the federal government's continuing duty of protection to Indian nations. (21) The treaties memorialized federal government obligations to Indian nations that Indian treaty negotiators bargained for; those obligations continue to this day as federal law under the Supremacy Clause absent a clear statement of intent from either party to abrogate them. (22) The Supreme Court later recognized that the United States additionally owed a moral obligation to Indian nations deriving from the duty of protection and the course of dealings between the federal government and indigenous people, dealings that tended to involve the betrayal, in one form or another, of the duty of protection. (23)

   Call it a trust, a guardianship, or a duty of protection, but as a matter of law, the federal government's bargained-for legal relationship with Indian nations and Indian people is a significant source of authority for federal laws even today--along with the Indian Commerce Clause, the Treaty Power, and perhaps other sources. (24) Consider any federal law or government program in Indian affairs. Each law and program can be traced to the duty of protection originating in Indian treaties. Numerous Indian treaties reference housing, health care, education, job training, law enforcement, support for tribal economies, protection of lands, and military protection. Each of these promises by the United States to Indian nations serves as a source of authority for the work of the Bureau of Indian Affairs, the Indian Health Service, and every other federal office that does Indian affairs work. But more fundamentally, the duty of protection accepted by the United States is the source of the power to perform this work.

   Indian treaties also established bargained-for property rights, typically called treaty rights in modern parlance. (25) These rights can include the right to hunt, fish, gather, and farm on and off Indian lands without interference. (26) These rights can include the right of exclusivity to land and exclusivity of government. Treaties specific to one or more tribes might even go further and protect individual Indians' right to travel (27) or an Indian tribe's right to be free from federal regulations. (28) The federal government, as a...