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How the EPA Is Screwing Oklahoma’s Tribes

The unholy alliance Senator Inhofe has forged between the agency, the state, and oil drillers is designed to skirt tribal sovereignty.

Senator James Inhofe

Jim Inhofe might be best known as the dipshit who brought a snowball to the floor of Congress as “proof” that climate change is not real. But the Republican senator from Oklahoma is no fool.

In 2005, Congress passed a bill ostensibly aimed at authorizing federal funds for the upkeep and creation of federally aided roads and highways. At 836 pages long, it was an impressively boring bill, reading as little more than a list of construction projects in need of funding and designations and redesignations as to what roads fall under the federal highway and interstate programs. It was, in other words, the perfect place for Inhofe to hide some equally sterile lines protecting gas and oil interests against the peskiness of tribal sovereignty and land rights, to be employed if the worst came to pass and tribes in his state were able to reclaim their lands:

Notwithstanding any other provision of law, if the Administrator of the Environmental Protection Agency (referred to in this section as the ‘‘Administrator’’) determines that a regulatory program submitted by the State of Oklahoma for approval by the Administrator under a law administered by the Administrator meets applicable requirements of the law, and the Administrator approves the State to administer the State program under the law with respect to areas in the State that are not Indian country, on request of the State, the Administrator shall approve the State to administer the State program in the areas of the State that are in Indian country, without any further demonstration of authority by the State.

In layman’s terms: If the state of Oklahoma asks, the Environmental Protection Agency wields the authority to give the state government regulatory control over all environmental issues that take place on tribal lands in Oklahoma.

Now, 15 years later, this long-dormant rider has been activated, all because the U.S. government can’t decide whether it wants tribal sovereignty, and the people entrusted with enacting it, to exist. On Monday, The Young Turks journalist Ti-Hua Chang reported that the Trump administration’s EPA, helmed by Andrew Wheeler, who worked for Inhofe for 14 years, cited the above rider in an October 1 letter granting the state of Oklahoma’s request for regulatory control.

Given the cozy relationship between Oklahoma lawmakers and the gas and oil industry, the EPA’s decision effectively hands power over hazardous waste dumping, fracking, and the purposeful diversion of industrialized farm runoff on tribal lands to a slim number of industry executives. This was not a random chess move. It was an industry reacting to the prospect of having to consult tribal governments about what happens on their land.

Specifically, it’s a reaction to the Supreme Court’s 5–4 ruling this past July that the Muscogee (Creek) Nation’s reservation, as detailed in its 1868 post–Civil War treaty with the United States, was never dissolved by an act of Congress and thus is still a legally active part of Indian Country. While the ruling only applied to the Muscogee (Creek) Nation and concerned only crimes prosecuted under the Major Crimes Act, it was clear that McGirt v. Oklahoma, as the case was called, could pave the way for a multitude of similar cases.

With the reservation’s borders and sovereignty being upheld, the other tribes in Oklahoma, most of which claim similarly ignored but still intact treaties, have since been tacitly encouraged by the positive outcome to pursue legal challenges of their own to regain jurisdiction over their lands. Should all of the tribes successfully assert their treaty rights, roughly half of Oklahoma would cease to be state land and instead be what it always has been: Indian Country.

In the months since the McGirt decision, a whirlwind of studies and papers and talks have attempted to predict what kinds of jurisdictional powers could be wielded by the Muscogee (Creek) Nation and any other tribes able to join them in upholding their reservations. Provided the right legal environment is attained, tribal governments overseeing reservations can wield the power to impose taxes and regulations on non-Native industries that want to operate within their boundaries. Most experts analyzing the legal implications agreed that the tribes would not be able to enforce regulations or tax nontribal citizens that own fee land (meaning it has been deeded to an individual and is not held in trust by the Department of the Interior) in the reservation—that is, tribal citizens would be the ones primarily affected by McGirt. But there are exceptions to this rule, namely for Oklahoma’s petroleum industry.

In the 1981 case Montana v. United States, the Supreme Court held that tribes can enforce regulations on nontribal citizens if these residents consent to it, or if the action by the noncitizens “threatens or has some direct effect on the political integrity, the economic security or the health or welfare of the tribe.” And since fracking and hog farm runoff are harmful to a citizenry’s health, Oklahoma’s extractive and agriculture industries would probably have to actually consult with tribes before taking on new projects. According to this logic, a paper published this summer argued, “roughly twenty five percent of Oklahoma’s oil and gas well and sixty percent of its oil refineries are impacted by the Court’s decision.” Barring state intervention, the authors added, the tribes would be able to enact a severance tax on any natural resources removed from the reservation. (Predicting this, the Seminole Nation of Oklahoma issued an 8 percent severance tax on oil and gas leases on its land in 2018.)

Conservative politicians and the gas and oil industry have reacted to the McGirt decision with three months of fearmongering, proclaiming that the change in jurisdiction would be wildly unjust for the state’s citizens. In fact, their biggest point of concern remains their own financial self-interests.

Oklahoma Governor Kevin Stitt, a Republican who is also an enrolled citizen of the Cherokee Nation, has spent the duration of his first term working against the tribal nations in his state, most notably on the gaming compacts that allow the tribes to operate casino and gaming operations. In the aftermath of McGirt, Stitt convened a commission to look at the projected impact of the ruling but did not tap a single tribal leader for the commission. Instead, he stuffed it with three executives from the petroleum industry. Stitt also waited just two weeks to put in the state’s request for regulatory control to the EPA, opting not to consult with tribes before he reached out to industry executives.

Wheeler, Stitt, and Inhofe, as well as their beloved petroleum executives, have been very clear about what they don’t want. They do not want tribes enforcing environmental regulations, because tribal governments will likely balk at poisoning their own citizens and push back against industry interests. This is why Stitt and Inhofe, along with Attorney General William Barr, have recommended federal legislation to address McGirt—because they want the case’s effect, and the powers of the tribes, to be as minimal as possible so that they can continue to ratchet up gas and oil production in the state.

The Muscogee (Creek) Nation, in a statement, said it was “disappointed” by the decision, language echoed by Cherokee Nation Principal Chief Chuck Hoskin Jr. It was also predictable. Oklahoma’s application for this end run around the tribes was always going to be approved. And the EPA has been so gutted and deregulated by Wheeler and the Trump administration that, even if the agency had not granted Oklahoma’s requests, few taxes or regulations could plausibly have scared the gas and oil industry away from Indian Country. While the tribal nations could mount a legal challenge to prevent their lands from being the playgrounds of the wealthy oil barons, there aren’t many options to update Inhofe’s law without flipping both the Senate and the White House. The hard truth is that Inhofe, crafty in the insidious fashion of the long-privileged, constructed his two-paragraph-long lifeboat 15 years ago. Now he and his buddies can finally tumble in.