When federal judge Stephen Friot denied Oklahoma an injunction against the U.S. Department of the Interior after they stripped the state's right to regulate mining inside reservation boundaries, it brought up questions about who has the right to clean up the environment on reservations affirmed by the McGirt v. Oklahoma ruling and who gets the federal money to do the work.
As the effects of McGirt move beyond criminal jurisdiction with legal challenges to tax laws, environmental cleanup regulation and how to reclaim abandoned mines within Oklahoma are coming into focus. Leaders of tribal nations say the landmark Supreme Court ruling wasn’t just a win for tribal sovereignty, it's a win for their ability to care and steward the land, a job they say they’re most qualified to do.
Tar Creek and the Quapaw Nation
Some of the most well-known abandoned mines make up the Tar Creek Superfund site, and Picher, one of the communities in the area, is known as the ‘most polluted town in America’. So, when an Ottawa County court ruled in 2021 that the Quapaw Nation’s reservation was never disestablished, tribal leaders thought it might mean they could exercise more control over the clean-up.
It’s a monumental job.
The Quapaw (O-Gah-Pah) or Downstream People were forcibly removed to northeastern Oklahoma from their home in Arkansas in the 1830s. Decades later, valuable zinc, lead and other minerals were discovered on their new reservation.
Mining temporarily created a boom in towns like Picher, Cardin and Zincville, but little was done to regulate and control the toxic waste that now makes those towns uninhabitable. In the 1960s, the mines started shutting down, but they left behind mountains of chat, a byproduct of the mining waste.
In addition, rivers in the area were polluted to the point that the water turned orange, abandoned mines left tunnels that resulted in homes collapsing and contaminated soil lead to children having elevated levels of lead in their blood.
The Environmental Protection Agency deemed the towns uninhabitable and started a voluntary buyout of homes.
Seventy-four-year-old Henry Ellick and his wife Jeann Ann raised their three children in Picher. The house they lived in is now gone, and the lot has given way to overgrown brush and weeds. Ellick remembered the sycamore tree he planted and how he stayed in shape as a boxer using the unsightly mining byproduct.
"I used to run up that chat pile right there," said Ellick as he pointed to an enormous pile of gray, silicone, dolomite and limestone waste.
Guy Barker, Quapaw Nation's secretary treasurer, can recall sledding down the large piles on snowy days. Barker's family moved to Picher to work in the mines, and his great Grandfather Victor Griffin was chief of the tribe during the height of the mining boom.
Since 2012, the Quapaw Nation has worked in partnership with the EPA to remediate and remove all the soil, so crops might grow again and cattle might be able to graze.
Craig Kreman, Quapaw Nation's environmental director, said that even though the tribal nation manages the cleanup along with the federal and state governments, they are looking at whether, under their reaffirmed reservation status, they have more authority to regulate companies that are contracted to do the cleanup inside the reservation’s boundaries.
"I think that’s coming into question with McGirt. What capacity does our environmental office and the tribe have to take on and enforce regulations?" said Kreman.
He looks at a creek that has borne the brunt of the environmental damage caused by mining. Lead and zinc have seeped up from underground pools, oxidized, and turned the trees growing along the creek orange.
That’s after the cleanup effort has been going on for nearly 40 years.
He also points to some runoff coming from piles of chat being removed by Flintrock, one of the companies removing the mining byproduct. They haul it away and sell it for use as filler in asphalt pavement.
Kreman thinks the Quapaw Nation could do a better job of regulating contractors if they had full responsibility for the work.
Shortly after the McGirt v. Oklahoma decision, tribal nations that had their reservation boundaries affirmed updated their criminal codes to account for the increased responsibility.
That’s what Quapaw Nation is currently doing with its environmental laws.
As the tribal nation writes its new constitution, they are figuring out what capacity they have to enforce environmental regulations under the McGirt ruling. They have tasked a committee with writing environmental rules to help them with the cleanup in the Tar Creek area and any future issues that might arise.
"We have dedicated scientists, engineers, geologists that work on this day in and day out. I mean, the foremost experts here work for the tribal nation" said Barker.
"We're in a position of real knowledge to be able to kind of help steer this, going forward. And if there ever is another environmental impact of similar scope or nature really would be really helpful."
It's not clear how the state of Oklahoma would react if Quapaw Nation fined companies who violate their environmental codes or what, if any, role the Department of Environmental Quality plays in Tar Creek. Quapaw Nation invited Oklahoma Gov. Kevin Stitt the opportunity to tour the cleanup recently, but he declined. The Governor, in a press release last fall, said he was, "disappointed" at the lower court's ruling to reaffirm Quapaw's reservation.
Other tribes assert environmental control
In early February, the Department of the Interior announced they were awarding nearly $3.5 million to three Oklahoma tribes to reclaim abandoned coal and surface mining within their reservation boundaries. This includes the Cherokee Nation, Choctaw Nation and the Muscogee Nation. Notably, the money will not be going to the state of Oklahoma because of the McGirt ruling. The Cherokee Nation recently completed a reclamation project in 2021, which was an abandoned coal strip mine in Porum, Oklahoma.
Cherokee Nation currently has six abandoned coal mines within their reservation eligible for funding. According to the Department of Interior’s Office of Surface Mining Reclamation and Enforcement (OSRME), Choctaw Nation’s Environmental Protection Service is aware of 33 permitted mines listed as active within its land, along with 145 listed as “Abandon Mining Land Problem Areas” which require reclamation.
Chad Harsha, Cherokee Nation's Secretary of Natural Resources, says there are a number of hazards abandoned mines pose besides the high levels of methane, which according to the EPA accounts for 10% of all greenhouse gasses.
"A lot of them are located in rural communities," said Sec. Harsha. "A number of these mines were abandoned strip mines where they're essentially, you know, open pits that were dug down to the coals veins and the coal removed."
Harsha is glad the DOI awarded the money to the tribes and not the state.
Quapaw Nation's environmental department has completed eight reclamation projects on the Tar Creek Superfund site within the reservation boundaries in Picher. Ultimately, Barker and Kreman say it is going to take decades for them to get Picher and Cardin cleaned up.
Barker says McGirt is a win with the potential impact the decision has on the environment here and with Quapaw actively managing this superfund site. They are planning on strengthening their environmental codes.
"It's really best that we be able to be in a position to hold individual actors accountable so that we're not chasing our tail wasting time creating environmental harm to not just the area, but to its inhabitants," said Barker about their renewed jurisdiction over environmental policy.
Henry and Jeann Ann Ellick now live in Quapaw in what Henry deems a "mansion."
To him, though, it won't ever be the home he had in Picher — even though it will never be inhabitable.
"Everybody knew everybody. It was just a place you felt safe," said Henry Ellick.
This story was produced in collaboration with Newsy.
