In the fallout of the U.S. Supreme Court's McGirt vs. Oklahoma ruling, in which the court held the Muscogee (Creek) Nation's reservation was never disestablished, Oklahoma Gov. Kevin Stitt quickly tried to wrest jurisdiction over environmental issues in Indian Country. Recently, he got approval from the U.S Environmental Protection Agency, but the tribes plan to fight back.
In July, Stitt sent the EPA a request to allow Oklahoma to maintain authority over environmental programs within the historical boundaries of the Five Civilized Tribes, which have contended the Supreme Court's ruling extends to all of its members - Creek, Cherokee, Choctaw, Chickasaw, and Seminole Nations. Such programs included initiatives of the Oklahoma Water Resources Board, Department of Environmental Quality, Department of Agriculture, Food and Forestry, and more.
EPA Administrator Andrew Wheeler cited a provision in the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 that obligated the agency to approve Stitt's request. Introduced by Sen. Jim Inhofe, R-Okla., at the time, the provision prevented tribes from implementing environmental regulation within their boundaries.
"… EPA generally excludes Indian country from its approvals of state environmental regulatory programs. However, where a federal statute expressly provides for state program administration in Indian country, EPA must apply that law and approve a proper request for such state administration," said Wheeler in his letter of approval to Stitt.
Wheeler said the agency invited Oklahoma tribes to provide their views regarding the state's July request. According to Wheeler, the EPA conducted a meeting that was open to all the state's tribes, and held meetings with seven tribes individually to receive their input.
Cherokee Nation was one of several tribes to criticize the EPA's decision and the state's request.
In a September Resource Committee meeting of the Cherokee Nation Tribal Council, Secetary of Natural Resources Chad Harsha said the tribe had requested consultation with the EPA to discuss the state's request. He said the initial window of time to discuss with the agency specific issues with the request was about three weeks, and felt that was not an appropriate amount of time to allow the tribe to fully consider the situation.
Some of the programs the state will continue to oversee are included within the Clean Water Act, like National Pollutant Discharge Elimination System Programs, Disposal of Biosolids and Sewage Sludge, and Water Quality Standards and Implementation plans. Other programs included are contained within the Federal Insecticide, Fungicide, and Rodenticide Act; the Safe Drinking Water Act; the Resource Conservation and Recovery Act; the Clean Air Act; and the Toxic Substances Control Act.
Principal Chief Chuck Hoskin Jr. was quick to rebuke the decision.
"It's disappointed the Cherokee Nation's request that EPA consult individually with affected Oklahoma tribes was ignored," Hoskin. "Unfortunately, the governor's decision to invoke a 2005 federal law ignores the longstanding 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."