Weeks after the U.S. Supreme Court affirmed that the Muscogee (Creek) Nation's reservation was never disestablished, the Environmental Protection Agency has granted Oklahoma's governor the authority to oversee environmental programs on Tribal lands.
Normally, a state has no jurisdiction on Indian lands. That's something left between the Tribes and the federal government. But Friday, the EPA granted Oklahoma Governor Kevin Stitt environmental oversight. It was something he asked the EPA for on July 22nd, just three weeks after the McGirt v. Oklahoma decision.
Stitt said he wanted consistency in the rules when he was pressed on his request at a Monday afternoon press conference.
"I believe we have to have one set of rules to be a healthy state with one set of regulations,” Stitt told reporters. “And so, this letter and Andrew Wheeler, who responded back to me just kind of clarified we're going to have one set of rules in Oklahoma whether it's the state or its the EPA administering those regulations."
Wheeler is the administrator at the EPA, but he used to work for Senator Jim Inhofe. In 2005, Inhofe authored an obscure amendment to a federal transportation bill that allows the state of Oklahoma the right to request oversight of environmental programs.
The rider on the Safe, Accountable, Flexible, Efficient Transportation Equity Act (SAFETEA) was created because Tribes were exploring getting state status to implement environmental programs on Tribal trust land. That was at odds with oil and gas industry interests, prompting Inhofe to add the rider into the SAFETEA bill.
What Does The Rider Actually Do?
Basically, the Oklahoma Department of Environmental Quality, not the federal Environmental Protection Agency will be issuing and enforcing federal environmental permits on fee lands within Oklahoma reservation boundaries.
Fee land refers to reservation land that is no longer held in trust by the federal government. The act excludes Tribal trust lands or lands held in restricted fee.
The EPA’s action doesn't mean Oklahoma can disregard or change the federal statutes under those permit systems. Oklahoma can choose to have stricter standards, but they cannot go lower than federal standards.
The McGirt v. Oklahoma decision will not displace the state's administration of federal programs on non-Indian fee lands.
This new ruling by the EPA doesn't give the state authority over the Tribes, it's just the state continuing its authority to issue permits, notwithstanding McGirt.
Dylan Hedden-Nicely is the director of the Native American Law Program at the University of Idaho and a Cherokee Nation citizen. He said the state of Oklahoma is maintaining the status quo. It's neither expanding or contracting it's authority over environmental statutes.
But, he questions whether the status quo is a good thing.
"This rider is unique to Oklahoma," said Hedden-Nicely. "Tribes throughout the United States have treatment in the same manner as a state and as a result of that are able to promulgate their own air, water and other environmental quality standards. And conversely, be free from state regulation within the boundaries of their reservations. And it works pretty well."
Tribes can also qualify to administer EPA programs, but the application process is extensive.
The SAFETEA rider requires that any Tribe wanting to administer those programs have an agreement with the state of Oklahoma before it can be approved by the EPA.
"This rider really is a major infringement on Tribal sovereignty within the state of Oklahoma," said Hedden-Nicely.
Tribes reacted over what they view as the latest in a series of moves by Stitt to undermine their Tribal sovereignty and overstep his authority.
Last year, in an op-ed published in the Tulsa World, Stitt announced he was seeking to negotiate new gaming compacts with Tribes to increase the share Tribes pay to the state.
Earlier this year, Stitt negotiated new gaming compacts with four Tribes. The Oklahoma Supreme Court ruled Stitt overstepped his authority. Two of the compacts were deemed invalid and the others are still pending before the court. A federal judge ruled that the gaming compacts Tribes signed with the state of Oklahoma in 2005 automatically renewed.
Stacy Leeds, a Cherokee citizen and district court judge for the Muscogee (Creek) Nation, tweeted out Cherokee Principal Chief Chuck Hoskin Jr.'s statement along with her own take.
"Two words," Leeds tweeted. "Environmental Racism."
Hoskin Jr. said it was disappointing the Cherokee Nation's request that EPA consult individually with affected Oklahoma Tribes was ignored.
"Unfortunately, the Governor's decision to invoke a 2005 federal law ignores the longstanding relationships between state agencies and the Cherokee Nation," wrote Hoskin Jr. "All Oklahomans benefit when Tribes and state work together in the spirit of mutual respect and this knee-jerk reaction to curtail Tribal jurisdiction is not productive."
Kenneth Wagner, Oklahoma's secretary of energy and environment sees Governor Stitt's request differently.
"All we want to do is maintain the status quo and continue to work with the tribes," said Wagner. He thinks some of the reaction has been misguided and unfortunate.
"We want to continue regulating what we've been regulating for the better part of a century."
Muscogee (Creek) Nation also released a statement expressing disappointment.
"Like the SAFETEA Act itself, this was a swift move meant to circumvent the appropriate time and available information to adequately respond. The Muscogee (Creek) Nation 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."
Some Tribes, including the Muscogee (Creek) Nation, were consulted before the EPA ruled, but they sharply criticized the process saying it was too short and should have been opened up to Tribes beyond Oklahoma.
The first consultation happened at the end of August and was concluded on September 25th.
In a letter released by the EPA that details the consultation period, Tribes respond with pointed criticism on the process.
"The EPA cannot satisfy its statutory and policy obligations to the Cherokee Nation by merely engaging in a limited three-week consultation process."
"This issue should be presented as a national consultation process. Providing opportunities to engage Tribes in all of EPA regions, since the proposed Agency action implicates long-standing EPA Indian Policy and consultation practices that will impact all Tribes across the United States."
Casey Camp-Horinek, the environmental ambassador for the Ponca Nation and the drum keeper for the women's society, said no government-to-government consultation happened.
"They failed in every single area. And then when we said no, they used that no, as saying consultation happened with the Ponca,” said Camp-Horinek. “Consultation did not happen. It's all lies. It's a hundred percent attack on sovereignty."
Horinek says they're considering their options to fight this rule, which could include ongoing protests or a legal battle.
Tribes also asked about the process EPA would use to review and approve the State’s request.
"Whether the State’s request affects a Tribe’s ability to obtain EPA inspector credentials and whether the State programs and inspections 'rank higher' than federal credentials," said Camp-Horinek.
"[Stitt] has been on the attack against the Native people here in Oklahoma since he's been in office."
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