MORE EFFECTS OF MCGIRT RULING
Supreme Court ruling affects Indian Country in more ways than criminal law
EPA gives Oklahoma authority to regulate key environmental programs inside Indian Country
Federal regulators have granted Oklahoma continued authority to regulate key environmental programs across Indian Country.
But at least one tribe in eastern Oklahoma and t he Democratic nominee for Oklahoma's U.S. Senate seat up for election this year are criticizing the decision.
The Cherokee Nation and Abby Broyles, the Democratic nominee in a race for Sen. Jim In ho fe' s U.S. Senate seat, characterized Oklahoma' s granted request as a “knee jerk” reaction to a Supreme Court ruling earlier this year that they asserted reaffirms tribal sovereignty across much of the state.
“It' s disappointing the Cherokee Nation' s request that EPA( the U.S. Environmental Protection Agency) consult individually with affected Oklahoma tribes was ignored,” Cherokee Nation Principal Chief Chuck Hoskin Jr. said Monday.
“Unfortunately, the governor' s decision to invoke
a 2005 federal law ignores the long standing relationships between state agencies and the Cherokee Nation. 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.”
A spokesman for the Muscogee (Creek) Nation also said Monday that tribe was disappointed by the decision.
"Like the SAFETEA Act itself, this was a swift move meant to circumvent the appropriate time and available information to adequately respond," a spokesman said Monday. "The Muscogee (Creek) Nation submitted a request for tribal consultation just two days after the Governor submitted his request. The nation was granted two consultations, but it seems the concerns raised did not suffice. The nation will continue seeking remedies to the situation."
What happened
The U. S. Environmental Protection Agency granted Oklahoma's request to continue regulating key environmental programs across eastern Oklahoma.
Oklahoma made its request seeking continued authority after the U.S. Supreme Court's 5-to-4 decision that Congress failed to dissolve the Muscogee (Creek) Nation's reservation in 1907.
While the case dealt specifically with a criminal matter that happened within the Creek Nation's pre-statehood territory, tribal and state officials interpreted its ramifications as more broadly applicable to areas of eastern and southern Oklahoma held by the Five Tribes before Oklahoma joined the union in 1907.
Some Native Americans were hoping the EPA would leave oversight of key environmental regulatory programs to tribes under such a scenario, though they still would ultimately have been overseen by the federal agency.
In a letter agency Administrator Andrew Wheeler sent Gov. Kevin Stitt on Oct. 1, the agency authorized the state's request to continue fulfilling key environmental oversight responsibilities on Indian Country lands within the Five Tribes' historical territories.
Only properties t hat are Indian allotments, held in trust by the U.S. on behalf of an individual Indian or tribe or owned by a tribe would be excluded from that authorization.
What made the request possible?
An amendment put forward in 2005 by U.S. Sen. Jim Inhofe to the $286 million highway and mass transit bill known as the Safe, Accountable, Flexible, Efficient Transportation Equity Act added authorizing language making the state's request possible, various officials said.
In a story written by The Oklahoma nat the time, officials characterized t he amendment as a response to a state agency's lawsuit against the Environmental Protection Agency, which authorized one of Oklahoma's federally recognized tribes to set its own water standards.
Then, tribes expressed disappointment, with one lawyer calling it a "grave blow to tribal sovereignty ,” noting they weren't even aware the language had been added to the measure until after it had been approved by Congress.
Inhofe, who at the time was the Senate's lead conference committee negotiator on the bill as chairman of its Environment and Public Works Committee, was targeted Monday by his Democratic opponent in the current election, Abby Broyles, for his involvement in the issue.
B roy les also sing led out Wheeler for his role, given Wheeler was the committee's chief counsel when the language was added to the 2005 measure.
“Inhofe has been actively working against our tribes since 2005,” Broyles said Monday. “It is no coincidence his longtime staffer seized the opportunity to attack tribal sovereignty and ignore the Supreme Court ruling. We should be doing more to protect our natural resources, not less.
“Our tribal nations' sovereignty should be honored, and they should be allowed to work directly with the EPA instead of having extra hurdles placed in their way. It's no surprise Jim would want to put this in front of state leaders, especially in the midst of their openly hostile relationship with the tribes right now,” Broyles continued.
Inhofe has said there is work being done to bring representatives from each party involved to come to a conclusion.
“As Sen. Inhofe and the entire delegation said in July, they are working with tribal leaders, the state and all stakeholders to develop a consensus-based solution to address questions raised by the McGirt decision," a spokesman for Inhofe's campaign said Monday. "The Supreme Court limited the McGirt decision to criminal jurisdiction and the letter from the EPA merely reaffirms it believes the status quo remains in this area of law.”
What the authorization allows
Oklahoma asked for authorization under the act to continue overseeing programs that protect the state's environment from potential pollutants.
Historically, they have been administered by Oklahoma's Department of Environmental Quality, the Oklahoma Department of Agriculture, Food and Forestry, the Oklahoma Water Resources Board and the Oklahoma Corporation Commission.
Specific programs involved include:
• Resource Conservation and Recovery Act programs, including those that govern the handling of hazardous and nonhazardous solid wastes and coal residuals.
•Underground Injection
Control oversight programs for wells that pump saltwater or other industrial wastes into subsurface formations.
• Clean Air Act programs including air monitoring and emissions standard rules and l ead- based paint oversight programs.
• Clean Water Act programs including sewage and animal feeding operations discharge standards and surface and groundwater rules and water quality standards.
• Underground petroleum storage tank monitoring and remediation programs.
Continuity, for now
Stitt said Monday that the EPA's approval keeps in place decades-long efforts between the state and tribal leaders to keep Oklahoma's lands, water and air safe for everyone who lives here.
If the current arrangement had been discontinued, they worry that could have potentially created a hodge-podge of conflicting standards that would have confused and complicated normal day-to-day business activities.
"This approval helps to better protect public health and our environment by ensuring certainty and one consistent set of regulations for all citizens of Oklahoma, including those who are also citizens of one of Oklahoma's federally recognized tribes,” Stitt said.
St it ta nd Wheeler both emphasized that Oklahoma did not seek to expand or increase its regulation over new areas of the state as part of the request, but rather only sought to continue to regulate those areas where the state has consistently implemented these environmental programs under the steady oversight of the EPA.
“Maintaining consistent regulation over the environmental programs in Oklahoma is imperative to allow those who are regulated to know what the rules are and how to comply with them. This protects all Oklahomans,” Stitt stated.