Mining rights battle hinges on one definition

Collaborator: Brittany Harlow
Published: 12/08/2021, 3:50 AM
Edited: 12/27/2021, 9:14 PM

(MUSCOGEE NATION) UPDATE: On December 22, Judge Stephen Friot denied the State of Oklahoma’s Motion for Preliminary Injunction in the case, saying the state did not show a likelihood of success on the merits of its claims. 

“In reaching this conclusion,” Friot wrote, “the court is mindful that SMCRA has become one of the federal civil statutes McGirt suggested could be “trigger[ed]” by its finding that the Creek Reservation persists today. 140 S.Ct. at 2480. But it bears repeating what was said at the outset: this is a narrow ruling interpreting a single federal statute.” 

ORIGINAL STORY: Federal Judge Stephen Friot heard arguments from the State of Oklahoma and the federal government over who has jurisdiction over mining rights on tribal lands last week. 

In the end, it all came down to the definition of “federal Indian reservation” on the U.S. Department of the Interior’s Indian Affairs website

Here’s the definition behind the scrutiny: 

“In the United States there are three types of reserved federal lands: military, public, and Indian. A federal Indian reservation is an area of land reserved for a tribe or tribes under treaty or other agreement with the United States, executive order, or federal statute or administrative action as permanent tribal homelands, and where the federal government holds title to the land in trust on behalf of the tribe.”

Attorney for the State Ryan Leonard argued the mining land in question has to be held in trust by the federal government on behalf of the tribe in order for the feds to have jurisdiction, and that currently 1/100 of 1 percent of the Creek Nation Reservation recognized in McGirt is held in trust.

The State's biggest argument, of course, was that the Supreme Court’s McGirt decision does not affect their jurisdiction over mines in eastern Oklahoma. 

Leonard also argued the United States is subject to laches, which basically means they took too long to assert the rights they’re claiming. 

He said granting the feds jurisdiction would set a bad precedent for other civil issues and described “Indian law” as its own animal, one that Congress has treated as unique and differently than other states in the past. 

During his presentation, Leonard cited 5,000 tax protests and exemption applications Native Americans have filed with the Oklahoma Tax Commission saying they don't owe income taxes, echoed the state’s emphasis on negative justice system impacts following McGirt and referenced the Environmental Protection Agency’s effort to require the State to obtain tribal consent before spending our superfund dollars. 

“There are some who have already provisionally proclaimed the State of Sequoyah, a concept that was firmly rejected by President Roosevelt and Congress in 1907 when Oklahoma became a state,” Leonard said.

Leonard said about 45 petitions for cert have been filed and are currently pending that ask the Supreme Court to revisit the McGirt ruling. He said they expect a decision regarding their principal case Oklahoma v. Castro-Huerta in mid-January.  

The Oklahoma Department of Mines and Oklahoma Conservation Commission are currently being funded with state funds. Their prior federal funding source is on hold while jurisdiction is being argued in court.

Attorney for the State Elbert Lin said the federal government has limited their access to certain systems, but they are still attempting to regulate with the state funds. 

He said employees have either been let go or have retired since the federal government stepped in. 

“We can't put that Humpty Dumpty back together again once they've left,” Lin said. “And, of course, we will incur expenses, we already are, that we cannot recover.” 

Lin said the federal government’s concern the State will release $7 million in bonds that are not yet environmentally safe is not valid. 

But the feds aren’t willing to take that chance and are asking the State to put up $8 million in bonds in the interim. 

“Oklahoma continues to purport to be able to release those bonds and has forfeited one of the bonds despite over 20,000 gallons of acid mine discharge seeping into the environment and continuing to do so,” U.S. Dept. of Justice Attorney Arwyn Carroll said. “There are other environmental harms that could occur if the bond is released and it hasn't yet been reclaimed to the environmentally required standard and so on. And so that's why we're asking for the bond.” 

Carroll said it is the federal government’s position that the McGirt ruling effectively shifted mining jurisdiction to the Office of Surface Mining, a federal program for Indian lands under the U.S. Department of the Interior, ending the state’s jurisdiction. 

“OSM can't provide funding without conceding jurisdiction that Oklahoma simply doesn't have,” Carroll said.

The judge ordered the State to file a supplemental brief on the issue of the definition of a "federal Indian reservation" within a week and gave the defendants another week to file a response to the State’s supplemental brief. 

This story is a part of the Oklahoma Media Center’s Promised Land collaborative effort, which shows how the landmark McGirt v. Oklahoma decision will affect both tribal and non-Indigenous residents in the state. It is a project of the Local Media Foundation with support from the Inasmuch Foundation, the Walton Family Foundation and the Democracy Fund.


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