Feds argue “Indian Country” ruling as grounds for mine regulation takeover

Collaborator: Brittany Harlow
Published: 04/19/2021, 1:45 PM
Edited: 04/19/2021, 1:48 PM

Photo Courtesy: Oklahoma Conservation Commission

(OKLAHOMA CITY, Okla.) After the Supreme Court decided in McGirt v. Oklahoma last year that American Indian reservations have never been disestablished by Congress, many questions as to how far this expanded jurisdiction extends have yet to be answered.

One of most pressing questions: Does McGirt affect just criminal cases, or everything?

According to a recent letter from the Office of Surface Mining Reclamation & Enforcement, they think the landmark decision applies to coal mining, too.

The OSMRE, a bureau of the U.S. Department of the Interior, notified the Oklahoma Department of Mines and the Oklahoma Conservation Commission earlier this month that under McGirt, “the State may no longer exercise regulatory jurisdiction under the Surface Mining Control and Reclamation Act of 1977 (SMCRA) on Indian Lands within the State.”

Read the letter here: https://www.osmre.gov/resources/newsroom/News/2021/OK_OCC_Notification.pdf

The State of Oklahoma denounced the claim publicly on Friday, with Oklahoma Attorney General sending a letter of his own in which he said the attempted takeover “appears to have no adequate basis in law”.

“I am advising that no state agency comply with this ill-advised power grab by the Biden administration,” Attorney General Hunter said in his letter. “Courts ruled a long time ago that reservation lands are not categorically exempt from state jurisdiction for all purposes. The McGirt ruling was about criminal jurisdiction, not all state regulations of industries. Further, we have supervised mines and reclamation operations in Oklahoma for decades and there is no legal basis for us to stop this practice now.”

Read the letter here: https://bit.ly/2QqoSF3

VNN reached out to OSMRE for a follow up and are waiting to hear back.

Surface mining includes strip mining and open-pit mining. Basically, every kind of coal mining in which the top of the land is removed to get to the coal, as opposed to underground mining, in which it is removed through shafts or tunnels.

Despite ongoing reclamation projects since 1989, as of 2019 there were still more than $132 million in abandoned mine sites to reclaim in 16 eastern counties.

The state got about $3 million from the federal government to clean up abandoned coal mines last year.

That federal assistance was already set to expire in 2021 if a new bill isn’t passed to extend it. U.S. Rep. Matt Cartwright (PA) introduced a bill in 2019 that would have extended the reimbursements and the Interior Department’s ability to collect reclamation fees through 2036.

It would have also increased the federal government funds to Oklahoma and American Indian tribes for their approved abandoned mine reclamation programs from $3 million to $5 million.

That bill never made it out of committee, but Cartwright introduced three bills with similar names this year:

HR 1733 - To amend the Surface Mining Control and Reclamation Act of 1977 to provide funds to States and Indian tribes for the purpose of promoting economic revitalization, diversification, and development in economically distressed communities through the reclamation and restoration of land and water resources adversely affected by coal mining carried out before August 3, 1977, and for other purposes,

HR 1734 - To amend the Surface Mining Control and Reclamation Act of 1977 to allow the Secretary of the Interior to delegate certain emergency reclamation activities to the States and Tribes, and for other purposes, and

HR 2505 - To amend the Surface Mining Control and Reclamation Act of 1977 to protect taxpayers from liability associated with the reclamation of surface coal mining operations, and for other purposes.

U.S. Rep. Liz Cheney (R) also introduced a bill relating to the act earlier this month, HR 2462 - To amend the Surface Mining Control and Reclamation Act of 1977 to make modifications to the Abandoned Mine Reclamation Fund, and for other purposes.

As of April 17, none of the text for those proposed bills was available online.


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