My generation is coming to accept two notions as both true: first, that corporations wield too much power, and are responsible for a host of problems from climate change to student debt. Second, that America’s treatment of Native Americans was a state-orchestrated land grab, whose colonialist principles still operate today.

The success of the film “Killers of the Flower Moon” shows that the time is ripe for other stories of theft and deception endured by my people. Disturbingly, these stories go well beyond the 1920s murders depicted in the film. They are ongoing. 

Understanding these phenomena in tandem, though, can be challenging. Corporate greed and colonialism can get lost in abstraction, especially in academic legal spaces. The history of my Tribe, the Osage Nation, illustrates the relationship between these forces. The success of the film “Killers of the Flower Moon” shows that the time is ripe for other stories of theft and deception endured by my people. Disturbingly, these stories go well beyond the 1920s murders depicted in the film. They are ongoing. 

Two accounts of the oil and gas industry on the reservation – the 1980s royalty theft by Koch Industries and the alarming number of uncapped oil wells today– demonstrate that the mechanisms enabling corporate greed are particularly insidious when wielded within colonized communities. 

A decorative oil derrick sits outside the Osage Tribal Museum, symbolizing the industry’s impact on the Tribe. Photo from Wikimedia Commons.

Before the Koch brothers achieved infamy on the national stage, they were villains in Osage county.

In 1987, investigators began to suspect that big oil companies were stealing from Native oil wells. Senate hearings validated these concerns. One company, in particular, emerged as a standout culprit. A Senate report read: “Koch Oil…a subsidiary of Koch Industries and the largest purchaser of Indian oil in the country, is the most dramatic example of an oil company stealing by deliberate mismeasurement and fraudulent reporting.”

That the Koch brothers could orchestrate such dastardly plots isn’t shocking today. But that they schemed so close to home was unknown to me until recently. Their names are synonymous with infamous deeds. The Koch brothers: the shadowy architects of the Tea Party movement. The “kingpin[s] of climate science denial.” The Koch brothers, through their organization Americans for Prosperity, achieved corporate tax cuts and killed Medicaid expansion across the U.S. But years earlier, they cut their teeth by stealing from the Osage people’s subsistence, from a lifeline for so many in my family. I followed the now thirty-year-old story with the same suspense and anger as federal investigators did at the time. 

The plan’s lead manipulator, Ron Howell, knew to get the Tribes on their side. In 1990, he facilitated a meeting between the Koch brothers and Osage Nation leaders.

Nancy S. Jones, an assistant U.S. Attorney in the Oklahoma office, took up the case in the 1980s. Believing that the crime went “all the way to the executive suit,” she embarked on a lengthy investigation.

Her findings sketched out the nature of the theft: high-level managers instructed oil field employees to engage in the “Koch method”: “a method for stealing oil in which gaugers intentionally misreported the amount and quality of oil they collected at well sites.” For background, a gauger validates the numbers of barrels collected on the field. Their role involves reading gauges, checking tank levels, and comparing this data to numbers reported by transporters and lease owners.

Photo of an Indian Country well drilled by Cudahy Oil Co. in Bartlesville, Oklahoma, taken on April 15, 1897, from the Oklahoma Historical Society.

Accuracy is especially important here. The Tribe is owed a portion of the lease profits as the owner of the subsurface minerals. At the time, the industry employed an honor system for reporting oil production. As a result, Koch could report back to its Tribal partners with a deflated number that they owed, thanks to their falsified reporting. 

As the investigation intensified, Koch devised a plan: “Koch’s first tactical goal was to change the political landscape around the issue of oil theft.” The plan’s lead manipulator, Ron Howell, knew to get the Tribes on their side. In 1990, he facilitated a meeting between the Koch brothers and Osage Nation leaders.

Their message was simple and convincing: when it comes to measuring crude oil extraction, there is always uncertainty. The company claimed it was doing its best to truthfully report production. Any inaccuracies resulted from the technologies limitations, and at the end of the day, Osage headright holders always received their checks in the mail. 

Osage county holds the highest concentration of uncapped oil wells per square mile in the United States.

Shortly after, the Chief Charles O. Tillman released a public statement supporting Koch’s innocence. This arguably deflated the federal investigation’s momentum and killed its public perception. 

Despite the investigation’s demise, a 1999 case in the Northern District of Oklahoma offered the potential for accountability. US ex rel Koch v Koch Industries arose from evidence offered by Bill Koch. Since 1983, Bill and Frederick stood on terse grounds with heir brothers Charles and David, who were now majority owners after a bitter disagreement over the company’s future.

The civil complaint alleged violations of the False Claims Act, which imposes penalties on anyone who “knowingly submits… false claims to the government” or “improperly avoids an obligation to the pay the government.” Trial testimony revealed the extent of the Koch’s theft. The method first speculated by Jones was confirmed: through a simple act of misreporting, the company reaped another $10 million each year.

I asked Osage attorney and headright holder Wilson Pipestem about this historic trial. A recent law-school graduate at the time, he remembers how Koch employees “all had the same explanation of… how they were taught the Coke method … a way to skim oil. ‘You take this much off the top.’ And deposition after deposition [featured] these workers saying, ‘This is what we were taught to do, that’s what we did… We were taught how to steal from Indians.’”

Despite the 2011 settlement, lead counsel Wilson Pipestem believes Osages were “nowhere near being made whole.”

Phil Dubose, a former gauger employed by the company before his 1994 lay-off, recounted that “the Kochs never did play by the rules. They had their own playing field… The Kochs expected us to lie and try to cover it up.” 

The Osage were not the only Tribal victim of this theft; the suit referred to other unnamed Indian leases. Ultimately, the company was found guilty of oil theft from 1981 – 1985 and the falsification of twenty-five thousand documents. 

Perhaps Koch lost this battle, but it is continuing to win the war. The company settled with the federal government for an undisclosed amount, evading fines of $214 million. More importantly, it emerged with little damage to its public perception, at least outside Northeast Oklahoma, and lessons on how to evade accountability. 

What about the Osage headright holders, whose monthly payments took a hit from this profit-seeking scheme? They later received a settlement payment based on trust accounting and trust mismanagement claims levied against the Bureau of Indian Affairs. For context, the BIA serves as the middle-man between oil extractors and the Tribe. Koch’s payment obligation technically ran to the BIA’s Osage Agency, who then dispersed the amount to headright holders. Despite the 2011 settlement, lead counsel Wilson Pipestem believes Osages were “nowhere near being made whole.”

‘This is what we were taught to do, that’s what we did… We were taught how to steal from Indians.’”

Fast-forward to today, and the Koch Oils, Exxons, and other big-name producers are nowhere to be found. Instead, “mom and pop’s” remain, producing a meager number of barrels compared to the boom days of the 70s. Although the large producers left for more active reservoirs or offshore operations, remnants of their historic presence remain. Reminders can take the form of mysterious whiffs of burnt rubber, inexplicable spells of nausea, or surprise sinkholes. These calamities occur when inactive oil and gas wells are not capped.

Osage county holds the highest concentration of uncapped oil wells per square mile in the United States. The precise number is not clear, due in part to the BIA’s mismanagement. These wells can produce a host of environmental horrors. Livestock who depend on nearby ponds may find them filled with saltwater or are electrocuted by wires that were improperly figured.

In 2017, the Pawhuska softball team was forced to move practice after discovering a methane leak beneath their field—crews determined that a well dating back to 1940 was improperly capped. Often, landowners receive no notice when a producer departs and leaves an uncapped well behind. Everett Waller, the Chairman of the Osage Minerals Council, expressed deep concern for these wells. He has prioritized capping programs in his work and views this as necessary for “future generations.”

Wells go uncapped, or improperly capped, for multiple reasons. The extraction company in charge of the well abandoned it. Or it chose not to operate the well at this time, waiting for a “boom” phase to resume production. In the case of abandonment, accountability becomes challenging. Many companies left long ago—the last major boom for the Osage reserve was in the 1970s—or dissolved after declaring bankruptcy. Landowners, who leased the plot to extraction companies in the first place, are forced to turn to the government’s coffers. Capping costs an average of $71,000 per well. It’s no surprise then, that states and Tribes across the country are barely making a dent in the number of wells.  

The BIA hasn’t raised the minimum bond rate —the amount lessee producers must set aside pre-production—since 1974 for leases on the Osage Reservation.

How are oil and gas companies able to evade accountability for orphan wells? Regulatory and contractual safeguards preventing orphan wells have been in place since at least the 1990s. The first mechanism, “decommissioning” or “surety” bonds, are standard components of leases. The relevant federal agency, depending on the type of land leased,actually requires them. 

Decommissioning bonds are simple. Before digging a new well, the company agrees to place a certain amount of funds aside to pay off any remaining costs or creditors. These obligations include reclamation costs (in other words, the expenses for well-plugging and any other labor needed to restore the surface of the land). Payment can be triggered by the end of a well’s productive lifestyle, the company’s departure, or even the company’s default.

Unfortunately, bonds have failed to prevent abandoned wells due to flaws in their regulatory design and application. The BIA hasn’t raised the minimum bond rate —the amount lessee producers must set aside pre-production—since 1974 for leases on the Osage Reservation. Producers can get away with even lower rates by opting for “blanket” bonds, which cover a number of a company’s wells as opposed to single-well bonds. At this point, an already paltry sum undergoes further dilution—these bonds are often earmarked to fulfill a number of obligations beyond environmental compliance. Other costs include royalty payouts to the subsurface owner (here, the Osage Nation) or the land’s lessor, the reclamation of any “surface disturbances” that occurred during extraction, and a number of other creditors. 

Companies are following the cues given by the system. It would be bad business to fully internalize costs, such as well capping, when a company is incentivized to neglect their environmental obligations and shift the cost to the public.

If the BIA were to impose higher minimum bond rates, single-well requirements, and heftier allocation requirements for capping purposes, such improvements could still fail. Companies, especially those facing insolvency, have little incentive to preserve their pre-production funds. The BIA has few means of enforcement. Instead, there is good reason for smaller producers to exhaust these funds during a well’s life cycle to meet rising production costs. To quote Chairman Waller, “it’s boom or bust here in the oil field.”

A map displaying the location of orphan wells across the United States, from the Environmental Defense Fund.

Decommissioning bonds are only part of the story of orphan wells, though. Defensive protections like bonds can do little when the larger systems of law and finance encourage “liability shedding.” A common cycle is as follows. First, larger companies sell their wells to a smaller producer when a well is about to become dry or less profitable. By transferring production and the attached lease, larger companies also rid themselves of the cleanup responsibilities. Then, the small producer often cannot afford the operating costs of an unprofitable well and declare bankruptcy. Chapters 7 and 11 of Bankruptcy Code give low priority to enviro obligations relative to the company’s creditors.

Companies are following the cues given by the system. It would be bad business to fully internalize costs, such as well capping, when a company is incentivized to neglect their environmental obligations and shift the cost to the public.

As disturbing as these stories are, they are not an anomaly in Indian Country. Colonization continues to produce messy outcomes, where uncovering harm and assigning blame gets lost as communities fight to survive. The Osage Nation does not intend to stop oil and gas production. As the Minerals Council continues working to increase headright payments, the Council and the Tribal government are simultaneously capping orphan wells across the reservation. 

For many outside Indian Country, this may come as a surprise. The “ecological Indian” stereotype persists. It enables outsiders to preference their own ideas about how Native people interact with the land. I discussed this issue with Indigenous journalist Allison Herrera, who reminds us that “Native people are not a monolith.” She described how outsiders are quick to criticize her Tribe’s use controlled burning in the hills of California, when such practices are proven to prevent destructive wildfires.

“War on the Plains,” a painting George Catlin of an Osage warrior and a Comanche Lancer, from Wikimedia Commons

“And then there’s the way that Native people view themselves,” Herrera remarked. “And I think that sometimes those things are at odds and sometimes things, those things are not.”

As an Osage and future headright holder, I don’t feel comfortable with our continued dependence on oil. Common sense demands we look elsewhere for revenue, away from this finite resource. Solidarity with other colonized peoples demands that we stop contributing to climate change. It will ruin the food systems and homelands of the most vulnerable. 

At the same time, the Tribe’s continued oil and gas extraction cannot be attributed to greed or apathy. Nor is it productive to paint us as victims of corporate capture. Instead, the forces of colonization that moved us westward, plundered our lands, and denied us equal opportunity are to blame.

And who, exactly, continues to push these colonial interests today? The large oil and gas companies implicated in these anecdotes are not the only bad-faith characters. Ask any Osage and they’ll tell you that the theft, malfeasance, and pollution was only possible because of the BIA. 

A 1909 hand-drawn map showing Osage allotments found on Wikimedia Commons.

For background, all Tribes exist at the allowance of Congress, which holds plenary power over Indian affairs pursuant to Article I, § 8 of the Constitution. And nearly all North American Tribes suffered a form of violent removal from their homelands at the hands of European powers. Today, the Osage “appear to be the only tribe in the country whose form of government is dictated by federal statute.” “The Osage government and this trust is the single most… colonized Tribal nation in the United States,” claims Pipestem.

The primacy of the federal government over everything we do makes it difficult to protect against predatory corporations. In the oil and gas context, the Tribe can approve a lease. But once signed it is essentially beyond our control and in the hands of the BIA. The Tribe becomes “passive lessors of land.” “We’re the best custodians there are,” says Waller. “Yet, we’re still denied the driver’s seat on decisions pertaining to our land.” 

For Tribes dealing with outside players, the feds will always garner more suspicion. History teaches this. When the federal government continuously fails to protect Tribes in accordance with the Trust responsibility, who can you trust? As a result, private or corporate actors seem trustworthy in comparison, or at least more predictable. 

“We’re the best custodians there are,” says Waller. “Yet, we’re still denied the driver’s seat on decisions pertaining to our land.”

Ultimately, there is a risk that calls for increased regulation from outsiders will do more harm than good. By acting unilaterally without input by both the Minerals Council and the Tribal government, the BIA will repeat the colonialist gameplan of its past. When the Osage Nation enters its next chapter and transitions away from oil, it must work with the BIA. The onus falls on the agency to rebuild the Tribe’s trust and work as a partner. 

The Osage people pass down stories about our ancestors who bought our reservation from the Cherokee Nation in 1872. The Tribe remained in Kansas as a group of men went South to survey the land. One of the men, Wah-Ti-Anka, was described as a prophet by Pipestem’s father. When he returned, Wah-Ti-Anka proclaimed that something was within the land. Something that would keep their children and elders from starving. 

Many Osages believe that “something” was oil. Instead, Pipestem believes his father’s theory. The mystery resource wasn’t oil, but the sovereignty of the Osage nation. “These resources are not forever, whereas sovereignty arguably is.”