In Oklahoma, “Yet Another Broken Promise” to Native Americans

How Governor Stitt teamed up with the head of the EPA to keep tribes from regulating fracking and industrial pollution on their own lands.

Emerald Vista in the Choctaw Nation

Credit: Image courtesy of The Choctaw Nation

Last week, millions of people across the country observed Indigenous Peoples’ Day. In addition to commemorating the cultures and achievements of Native Americans, the holiday recognizes the incalculable losses they have suffered since Christopher Columbus first dropped anchor in the Caribbean back in 1492. Those include, of course, the legacies of genocide, broken treaties, and governmental indifference that have been an indelible stain on North American history for more than 500 years.

Just one week earlier, news emerged detailing the U.S. government’s latest affront to the Indigenous nations that preceded it. Reporter Ti-Hua Chang of the online news outlet The Young Turks disclosed that the U.S. Environmental Protection Agency had officially granted Oklahoma Governor Kevin Stitt his request for regulatory control over the tribal lands that make up nearly the entire eastern half of the state. This act by EPA Administrator Andrew Wheeler strips nearly 40 tribes of their ability to make fundamental decisions regarding fracking, agricultural pollution, and the dumping of toxic waste on their own lands.

One of those tribes, the Choctaw Nation, encompasses more than 10,000 square miles in southeastern Oklahoma. “The EPA ruling is a major attack on our sovereignty,” wrote its chief, Gary Batton, when I asked him for comment. “We oppose the decision and will do what we need to do to fight it.” Casey Davis, the director of government public relations for the Choctaw Nation of Oklahoma, added that “multiple requests to the EPA for additional time to consider this important issue were denied without adequate explanation. We are working to determine the best way to bring attention to yet another broken promise under treaties designed to protect tribal sovereignty.”

The EPA’s move comes in response to a July U.S. Supreme Court decision on a case involving the Creek Nation. The Court ruled that the Creeks’ lands constitute a reservation, as the word was originally defined by Congress in 1851, and are thus still subject to tribal jurisprudence. The 5–4 opinion in McGirt v. Oklahoma, penned by Justice Neil Gorsuch, is a strongly worded affirmation of tribal sovereignty over the lands of eastern Oklahoma.

“On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding ‘all their land, East of the Mississippi river,’ the U.S. government agreed by treaty that ‘[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.’”

Let’s step back a bit, at this point, to reflect on what Native American sovereignty actually means—or is supposed to mean. Nearly 200 years ago, as more and more people of European descent began settling in the Southeast, the U.S. government under President Andrew Jackson forcibly relocated around 50,000 Indigenous people—members of the Creek, Choctaw, Cherokee, Chickasaw, and Seminole nations—to lands west of the Mississippi River, hundreds of miles away from where they had been living for centuries. On these involuntary marches, which collectively came to be known as the Trail of Tears, thousands of people died of exposure, disease, and starvation. Those who survived were promised sovereignty over the newly designated “Indian territories,” pursuant to the terms of various treaties and Supreme Court decisions.

Over the next 60 years, the U.S. government gradually but steadily eroded that sovereignty through acts designed to usurp tribal land and limit the legal authority of tribes to enter into treaties with the United States. And in the century-plus since, while tribes have retained some rights to self-governance, tribal sovereignty has continued to be attacked and weakened.

While the Supreme Court’s recent decision made explicit reference only to a tribe’s prosecutorial authority, it very much opened the legal door to broader interpretations affecting civil and regulatory issues. And in a state so wedded to fossil fuels—a towering oil derrick actually sits right in front of the Oklahoma capitol building, which rests atop an oil field—the prospect of losing regulatory control over all that land was too much to bear for the governor and his friends in the oil and gas industry.

That’s why the ink had barely dried on Gorsuch’s majority opinion when Governor Stitt asked the EPA to make sure that scenario never came to pass. The ace up his sleeve was a remarkable rider that had been slipped into an otherwise unremarkable federal transportation bill back in 2005 by Oklahoma Senator James Inhofe (who had clearly been anticipating a situation exactly like the one his state now faces). The rider stipulates that Oklahoma’s tribes can administer air or water quality regulations only under a “cooperative agreement” with the state. Furthermore, it requires the EPA to defer to the State of Oklahoma should there ever be a dispute between the state and the tribes over who possesses regulatory authority. Stitt pulled Inhofe’s rider out of his sleeve and quickly achieved his desired result: an assurance from Wheeler (who once worked for Inhofe) that he could resume regulatory control over all shale plays, toxic sites, and massive factory farms on tribal lands, effective immediately.

Yet another broken promise. If ever there was a phrase that summed up the relationship between the United States government and Native Americans since the days of Andrew Jackson and well before, it’s this one. That the Supreme Court has opened the door for a new legal conversation about the rights of tribes—specifically, their rights to protect the health of their land, water, and people—doesn’t matter to Kevin Stitt. With oil and Big Ag money on the line, that’s a conversation the state of Oklahoma doesn’t seem interested in having.

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