Love you, Martin Scorsese but ....

.... Your epic film "Killers of the Flower Moon" missed a major historical point.

      Loved the movie. But director Scorsese failed to explain to his audience why, just five minutes into the film, an Osage Indian woman named Molly Kyle (wonderfully portrayed by actress Lily Gladstone) sits before a pompous white man and declares herself to be “incompetent,” utters the phrase “282 allotment,” and asks the man for money to pay her medical bills. It was her money, as we quickly learned, so why was she forced to beg this man to release it?

Almost lost in this cinematic retelling of the tragic history of the Osage Indians is the defining role the U.S. government played in financially crippling the tribe and setting the stage for what the Osage would come to call the murderous “Reign of Terror” waged against them. It occurred in the early 1920’s and marked the nation’s first horrific misuse of the legal system to conscript into guardianship an entire group of people. Today the guardianship system continues to trap citizens and allow their appointed guardians to financially exploit them. Some grieved families of the guardianized insist the murders continue to this day.

In the 1870’s the Osage people were forced to relocate to a desolate area of Oklahoma. They lived peacefully there for a couple of decades and then, in 1894, oil was discovered. Massive amounts of oil. Suddenly the Osage became the wealthiest people on earth. The tribe devised a system called “head rights” to insure each adult member would get an equal portion of the riches. Royalties on the black gold swelled to nearly $30 million at one point, equivalent to some $414 million today. The head rights were to be passed down within families, ultimately bequeathed to all Osage children.

What occurred instead was the systematic targeting of tribe members for their wealth. Scathing newspaper articles reported on the flamboyant and luxurious lifestyles of the Osage. They had built mansions! They rode in fancy cars driven by chauffeurs and they sent their children to schools in Europe! They had become so lazy they had hired white servants! Many Caucasians became resentful that people they saw as being ethnically inferior would reap such a bounty from gifted land.

A secret solution was devised in Washington D.C. whereby the Osage were declared to be “mentally incompetent” and in need of government “protection.” In 1921 Congress passed a law requiring any full or half-blooded Osage member to be appointed a guardian until they could prove their own “competency.” Minors who were heirs to the land were also required to have guardians, even if their parents were still living. The appointed guardians were, of course, white attorneys and businessmen who were supposedly protecting the Osage from their own foolish spending.

No member of the tribe was ever able to prove they were not incompetent and, as the Scorsese movie so compellingly portrays, the Osage were forced to rely on stingy guardians to dole out their money. Then they watched helplessly as their fellow tribesmen and women were murdered in alarming numbers. The lucrative head rights of the dead were systematically transferred to white outsiders.

I so wish Mr. Scorsese had taken just a moment in his script to explain this astonishingly unconstitutional government intervention in the lives of people who had already suffered agonizing forced displacement.

 Today the guardianship system (called conservatorship in some states like California where Britney Spears lived as a “ward of the court” for nearly 14 years) continues, but on a much larger scale. Currently, some two million Americans live under guardianship control. Like the Osage of yesteryear, today’s ward is stripped of their civil rights and all their money, property and investments are immediately confiscated by the court and transferred into the name of the appointed guardian or conservator. Wards exist in a world where someone else – often a total stranger – decides how their money is spent, where they live, who they can communicate with, whether they can travel, go to church or synagogue, even what doctors they can see. A ward can no longer sign a contract, hire their own lawyer, cast a vote or marry. Today a death row inmate has more rights than someone in guardianship. 

The Osage were controlled via deadly poison or a bullet to the head. These days numerous relatives of the guardianized, nationwide, say they believe their loved one’s death was hastened by either deliberate neglect or overmedication ordered by the guardian to insure the ward’s submission. Consider the case of Angela Woodhull, a licensed private detective in Gainesville, Florida. After her guardianized mother’s suspicious death she immediately confiscated the bedside urine bag and submitted it for laboratory testing. The result was shocking. Louise Falvo, an elderly woman who wasn’t even five feet tall, had three opioids in her system when she died: morphine, propoxyphene, and norpropoxyphene. “I phoned the lab for an explanation and spoke with the man who certified the report,” Woodhull said during a phone interview. “He told me there were enough drugs in my mother’s body to kill an entire football team.”

In Las Vegas, Nevada a notorious duo of guardians is alleged to have caused the deaths of several wards. That cannot be confirmed at this late date, but numerous aggrieved relatives wrote in an anonymous internet chat room where they felt safe to vent.  The autopsy of one elderly ward reportedly concluded he died of starvation; another distressed family member wrote that her deceased aunt suffered from malnutrition. A third person wrote from Utah, “Dad killed himself. He slashed his wrists.”  The note he left behind stated “he couldn’t stand what (the guardians) had done to him and his family.”

Why would a court appointee resort to such awful treatment of a vulnerable person? Family members believe that once the guardian’s name has been put on all of a ward’s financial holdings there is no incentive for them to be kept alive. Mandatory audit reports are required to account for where a ward’s money has been spent but frequently they are never filed. If the forms are submitted there is usually no staff to check them. Guardians and conservators can (and frequently do) keep an estate open long after the ward’s death and continue to charge fees for their services.

In Florida, state investigators discovered a guardian named Rebecca Fierle had routinely issued Do Not Resuscitate orders on all her wards. She had hundreds of them simultaneously. In the case of Steven Stryker, Fierle also demanded that his vital feeding tube be capped, a device he needed to combat a serious swallowing issue. Stryker died in May 2019 while hospital staff stood by. Fierle was originally charged with multiple felony counts, but once in court she faced only one misdemeanor charge of neglect. She was sentenced to just four years’ probation.   

To understand the scope of today’s system, and the draw for the criminally minded working within it, realize that state courts seize a collective $50 billion in ward’s assets—every single year. That is a crystal clear motive for bad actors within this ill-regulated and largely unsupervised system. Overworked, understaffed and/or compassionless judges simply don’t have time to police their court appointees. Informed critics of the system estimate that predatory players illegally divert multiple billions of dollars from the monstrous $50 billion cache each year.

As a society we need a system that takes care of our at-risk citizens, those who truly cannot care for themselves. What is not needed is the current court system that routinely ignores trusted family members who seek to become the legal guardian of a vulnerable loved one. In case after case, it was revealed that judges routinely bought a lawyer’s argument that the family was “dysfunctional” and they accepted the attorney’s suggestion to appoint a professional guardian. The financial devastation being perpetrated today mirrors the injustices done to the Osage people a century earlier. 

The public doesn’t understand how easy it is for someone (anyone!) to guardianize another, or that the system operates under strict secrecy. Courtroom doors are closed to the public, court records are sealed and judges frequently impose gag orders on all those involved. No wonder most of us have little knowledge of how emotionally abusive and financially exploitative guardianship can be when the wrong person controls the life of another. And after a lawyer, guardian or conservator recklessly spends a ward’s money there is often little or nothing left for intended heirs. Wills, trusts and powers of attorney are routinely ignored.

Why haven’t state or federal lawmakers moved to pass meaningful laws to regulate this often out-of-control system? Likely because its either too big a problem, or they’ve been persuaded by lobbyists from the legal, guardianship, conservatorship, judiciary and nursing home industries that the status quote is working just fine. It decidedly is not.

It’s so unfortunate that director Martin Scorsese didn’t insert just one or two lines of dialogue to explain that it was guardianship that so weakened the Osage and made them easy targets for the system’s earliest predators. Scorsese missed a golden opportunity to spark a public conversation about how this obviously unfair system must be reformed.     

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