EPA gives Oklahoma environmental oversight on Indian lands
Kolby KickingWoman
Oct 5, 2020
Ramifications stemming from McGirt decision in July seep beyond criminal jurisdiction
Kolby KickingWoman
Indian Country Today
The U.S. Environmental Protection Agency has approved the state of Oklahoma’s request to administer environmental regulatory programs in Indian Country.
Republican Oklahoma Gov. Kevin Stitt, Cherokee, made the initial request to EPA Administrator Andrew Wheeler near the end of July, 13 days after the Supreme Court ruled in McGirt v. Oklahoma.
That decision stated Congress never explicitly disestablished the Muscogee (Creek) Nation Reservation and much of eastern Oklahoma remains Indian Country.
While the McGirt case dealt with criminal jurisdiction, it appears tribal and state governments believe the ramifications of the decision extend beyond that single area.
The EPA’s letter to Stitt, dated last week, applies to more than two dozen federal environmental programs overseen by Oklahoma agencies, including the Department of Environmental Quality, Department of Agriculture, Food and Forestry, Water Resources Board and the Oklahoma Corporation Commission. It gives the state approval for a hazardous waste program, experimental use permits, Clean Air Act programs and more. The approval does not apply to lands held in trust for tribes or those that qualify as Indian allotments, the letter says.
Cherokee Nation Principal Chief Chuck Hoskin Jr. called the announcement disappointing.
“Unfortunately, the governor’s decision to invoke a 2005 federal law ignores the longstanding relationships between state agencies and the Cherokee Nation,” Hoskin said in a statement. “All Oklahomans benefit when the Tribes and state work together in the spirit of mutual respect and this knee-jerk reaction to curtail tribal jurisdiction is not productive.”
The federal law allowing states to seek environmental oversight in Indian Country was authored in 2005 by Oklahoma’s Republican U.S. Sen. Jim Inhofe, a staunch ally of the oil and gas industry.
The Muscogee (Creek) Nation was similarly disappointed and through the tribe’s press secretary said concerns brought forth by the tribe during two consultations seemed to go unheard.
“The underlying law is a one-section provision surreptitiously inserted as a midnight rider in the massive (Safe, Accountable, Flexible, Efficient Transportation Equity Act) of 2005 that treats Oklahoma tribes differently than other tribes throughout the United States,” the tribe said in a statement. “Like the SAFETEA Act itself, this was a swift move meant to circumvent the federal government’s trust, duty and obligation to consult with the tribal nations concerned.”
The Muscogee (Creek) Nation said it submitted a request for tribal consultation just two days after the governor submitted his request.
“The MCN was granted two consultations, but it seems the concerns raised did not suffice. The MCN will continue seeking remedies to the situation.”
Stitt said in a statement Monday that he was pleased with the EPA’s decision. He said it would help better protect the state’s public health and environment “by ensuring certainty and one consistent set of regulations” for all citizens of Oklahoma, including tribal citizens.
“As Administrator Wheeler’s letter correctly points out, the State of Oklahoma did not seek to expand or increase its regulation over new areas of the state, but rather to continue to regulate those areas where the state has consistently implemented these environmental programs under the steady oversight of the U.S. EPA,” Stitt said.
The EPA decision was particularly welcomed by the state’s oil and gas industry, which was concerned that the Supreme Court ruling in McGirt v. Oklahoma could ultimately lead to a patchwork of various tribal environmental regulations across the state, said Brook Simmons, president of the Petroleum Alliance of Oklahoma, an oil and gas industry trade group.
“This decision grants the state no more or no less authority than it had prior to the McGirt decision,” Simmons said. “Since 1947, the state of Oklahoma has had primacy to regulate oil and gas operations in Indian Country. This does not have any new effect on that precedent.”
Kolby KickingWoman, Blackfeet/A’aniih is a reporter/producer for Indian Country Today. He is from the great state of Montana and currently reports for the Washington Bureau. For hot sports takes and too many Lakers tweets, follow him on Twitter – @KDKW_406. Email – kkickingwoman@indiancountrytoday.com
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