Quapaw Descendants File Appeal With Tenth Circuit Over Industrial Tailings

Quapaw Descendants File Appeal With Tenth Circuit Over Industrial Tailings

Carol Berry
9/29/12

Two piles of mingled industrial tailings—known locally as “chat”—have triggered a conflict in northeastern Oklahoma between Quapaw Tribe descendants who are the chat’s partial owners and a sand and gravel company that the descendants contend has been unlawfully taking mixed chat despite their repeated calls for the Bureau of Indian Affairs to stop the practice.

The three Quapaw descendants brought their case before the U.S. Tenth Circuit Court of Appeals September 4 after the U.S. District Court for the Northern District of Oklahoma dismissed their case against the BIA and Department of the Interior for failure to exhaust possible administrative remedies.

The descendants’ demanded for an accounting of chat already removed from the mixed piles by Bingham Sand & Gravel Company (BS&G), a partial owner, which was also dismissed for lack of jurisdiction.

The federal appeals court upheld the District Court’s dismissal of the case against the federal officials for not having exhausted administrative remedies but reversed the lower court’s contention that it lacked jurisdiction over claims against the private defendants.

The case brought century-old federal Indian law into issues related to the convoluted ownership history of the two intermingled chat piles, known as the Sooner and Ottawa piles, left over from lengthy lead and zinc mining and now valued as fill and gravel.

Some of the chat is owned by descendants of members of the Quapaw Tribe “who were deemed incompetent to manage their own affairs,” according to the court record, and they now have federally-restricted lands ownership. After Congress allowed chat-producing mineral development in 1897, the restricted Indian owners retained their proportional interest in the residual chat, the court said.

Not all of the chat is restricted and the private owners of chat in the mingled restricted/non-restricted piles have been hauling chat away without regard to what proportion is restricted and what part is not restricted, according to the Quapaw descendants who requested an accounting and reimbursement for their portion.

Restricted ownership interests have been apportioned among Tonkawa heirs so that numerous individuals hold fractional shares, the court noted. The BIA estimated ownership at about 76 percent to BS&G in the Ottawa pile and a similar proportion to private interests in the Sooner pile, estimates the Tonkawa plaintiffs dispute.

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