Give It Back to the Indians

Tom Finnerty26 Jul, 2020 5 Min Read
The end of the Trail of Tears?

You'd think that the Supreme Court's recent decision in McGirt v. Oklahoma, which effectively cleaved the Sooner State in half, would be considered a very big deal, but you can hardly find any worthwhile analysis of it. Perhaps this is because the case has been lost in a sea of other major decisions issued around the same time -- including Bostock v. Clayton, which redefined the word "sex" for the purposes of the Civil Rights Act of 1964; June Medical v. Russo, which held that requiring abortion clinics to have admission agreements with local hospitals is unconstitutional; and DHS v. Regents of the University of California, which asserted that the Trump administration could not undo the Obama Administration's DACA order.

Another possibility is that Americans (unlike our cousins in Canada) are used to thinking of "Native issues" as having purely regional import, with little-to-no effect outside of a few dusty states in the south and west. But McGirt v. Oklahoma has the potential to be among the most significant decisions in years.

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For some background: Jimcy McGirt, a member of the Creek nation, or Muscogees, was tried and convicted in 1996 in Oklahoma for raping a four-year-old girl. While serving a life sentence, he appealed the decision, his legal team arguing that the state of Oklahoma had no right to try him for the crime, since the 1866 treaty which the Federal government signed with the Creek nation establishing a reservation in that territory was not abrogated when Oklahoma became a state in 1907.

In a 5-4 decision (which saw Trump appointee Neil Gorsuch join with the four liberal justices), the court agreed, declaring that, despite a century of behaving otherwise, much of eastern Oklahoma is legally "Indian country," and as such McGirt (and hundreds of other Indians currently imprisoned for crimes in the area) should have been tried in federal court, which has jurisdiction over Indian affairs.

Writing for the majority, justice Gorsuch conceded the potential for this decision to have wide ranging and unpredictable effects:

In reaching our conclusion about what the law demands of us today, we do not pretend to foretell the future and we proceed well aware of the potential for cost and conflict around jurisdictional boundaries, especially ones that have gone unappreciated for so long.

In his dissent, chief justice John Roberts added some more specificity to Gorsuch's point, while pointing to the mind-boggling scope of this decision, which, although ostensibly dealing with criminal law, will necessarily in an over-lawyered America bleed into other areas of governance.

Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma. The rediscovered reservations encompass the entire eastern half of the State—19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians. Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.

On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma. The decision today creates significant uncertainty for the State's continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.

While all of these points of uncertainty are worthy of further discussion, it is the last one -- environmental law -- to which we will turn our attention.

Oklahoma is our nation's fourth largest producer of oil and third largest producer of natural gas. But according to Dino Grandoni of the Washington Post, after this decision, roughly "a quarter of Oklahoma’s recent oil and gas wells and around 60 percent of its refinery capacity" is now within the confines of Indian territory. "Perhaps more importantly," Grandoni continues, "the network of pipelines pumping crude to and from Cushing, Okla. — a crucial oil terminal for the Keystone XL — spider-web across the redrawn reservation borders."

Andrew Jackson, call your office.

No industry likes uncertainty, and the potential for disruption to the oil and gas industry here is almost unprecedented. Relationships between regulators and producers, established over decades, might ultimately be worthless. The same could be said for the familiarity companies have with the minutiae of local government, and the responsibility that elected officials in Oklahoma have towards constituents effected by regulatory decisions. As Grandoni explains,

Instead of dealing with business-friendly regulators from the state of Oklahoma... producers may soon have to contend with both tribes and the federal government, which often manages land for Native Americans.

This is unfortunate, since, as we've seen, native groups are often susceptible to manipulation and outside interference, either because their governance structures aren't designed to deal with problems at this scale (a particularly acute problem in this case, as the governance of what Roberts called the "rediscovered reservations" hasn't had jurisdiction over this territory in over a century) or because the activist and media narrative diverge from the interests and preferences of the Indians themselves.

Moreover, in instances where the federal government manages territory on behalf of the native population, there is a world of difference between politicians and bureaucrats in Washington, D.C., overseeing the environmental regulations and politicians and bureaucrats in Oklahoma City doing the same. While berating bureaucrats is something of a national past time in America, especially on the right, many of Oklahoma's regulators will have grown up in the area, and will know something about the issues and the land, on top of being familiar with the producers. That isn't necessarily the case for bureaucrats at the EPA or the Bureau of Indian Affairs sitting at a desk 1,300 miles away.

And that doesn't even touch upon taxation, which could see the tribes in charge of eastern Oklahoma begin to collect taxes from producers on top of the state taxes which they already pay.

For those reasons and more, its no wonder that producers in Oklahoma are feeling apprehensive. According to Grandoni, "at least one company — Houston-based producer Alpha Energy Inc. — is warning investors it faces potential legal risks in its leasing of 3,400 acres in the state." And former Tulsa mayor Dewey Bartlett, who now runs an oil and gas company, said he "worries investors may be less interested in working with drillers in eastern Oklahoma — especially when similar opportunities exist in the western half of the state and across the border in Texas."

Now, it must be said that hope isn't necessarily lost for the oil and gas industry in Oklahoma. As Gorsuch pointed out in his majority opinion, "Oklahoma and its Tribes have proven they can work successfully together as partners," and that hundreds of agreements already exist between the state and its natives. There is, in fact, already a preliminary agreement between the Five Tribes with authority over this territory and the state of Oklahoma, signed within a few days of the decision.

But that agreement is general in nature, and it is likely that the interested parties will be hammering out the details of this new arrangement for years to come.

Hopefully there will still be an oil and gas industry -- including the jobs it provides to Oklahomans of all ethnicities -- on the other side.

Tom Finnerty writes from New England and Ontario.

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