(Editor’s note: This story was created in collaboration with Newsy. This story was published in its original form on February 22, 2022 by Newsy. Grist. You can Subscribe to the weekly newsletter here. It is republished with permission. Creative Commons photo courtesy Ron Colemon/Flickr)
One of the largest Superfund sites is located in Oklahoma’s Picher, which is located on the Quapaw Reservation. Tar Creek, which flows into Grand Lake via the Neosho River, is rich in zinc. Underground reservoirs are able to leak lead-tainted and other toxic chemicals into the water when it rains. Near their roots, trees along the waterway have become orange-colored. This is because a steady flow chemical has oxidized and crusted. Gray piles of dolomite, limestone and silicone waste are visible on the landscape, which can reach up to three stories in height. The Indian Health Service reported that 34 per cent of Native American children lived in the area with lead levels well above the federal limit in 1994. This was a lasting legacy of more than a century’s worth of lead and zinc mining on multiple reservations.
It’s everywhere, said Guy Barker, Secretary-Treasurer of Quapaw Nation. There are trace amounts of lead in drinking water and groundwater. It is blowing around, it is in the ground soils in their sandbox.
The 1970s saw the end of mining. In 1983, the Environmental Protection Agency designated the 40-square-mile area around Picher as a Superfund site. Oklahoma offered to buyout homes in order to relocate families, including Quapaw citizens, into safer areas. By 2010, the EPA had also begun buyouts, while contracting with companies to complete the cleanup.
The EPA awarded the Quapaw Nation a multi-million-dollar contract in 2012 to take over soil remediation and cleanup. It removed large amounts of mining waste from the land and rehabilitated it. Last year, a decade later than the Quapaw took over the cleanup, the Supreme Court ruled Eastern Oklahoma was almost entirely an Indian reservation. This raises questions about environmental jurisdiction in the area.
In 2018, and 2019, the Supreme Court accepted McGirt (v. Oklahoma) as a case. It involved Jimcy McGirt and he was convicted of sex crime. Oklahoma had no right to prosecute McGirt because he was a Muscogee Nation citizen. McGirt, a Seminole Nation citizen said that only federal authorities could prosecute his cases because they were on Indian territory. The central question in this case was whether the Muscogee Nations reservation is still valid. Oklahoma, which became a state in 1907 believed that the reservation had been disestablished. The Supreme Court disagreed. They found that Congress, the only entity with the authority to end the reservation for tribes, had never disestablished the reservation even after Oklahoma became an independent state.
The decision was viewed by tribal sovereignty as a win and was applied to the Cherokees Chickasaw, Choctaw and Seminole Nations for 2021. In a subsequent case, a lower court applied McGirt’s ruling and determined that the Quapaw Reservation was not disestablished.
McGirt’s focus was on Indian Country’s criminal jurisdiction, but there are wider implications, particularly around environmental jurisdiction. The six tribes whose reservation land is eastern Oklahoma have the power to determine environmental policy, including clean air, water, remediation plans, and strip mining.
The Indigenous Environmental Network is an Indigenous-led nonprofit that focuses on protecting the environment. A recent report estimates that Indigenous people who have been involved in land and water defense has prevented or delayed greenhouse gas emission equivalent to at most one-quarter of U.S. and Canadian annual emissions. According to the United Nations, Indigenous people live in areas with approximately 80 percent of the planet’s biodiversity, but struggle to retain their legal rights to lands and territories. Oklahoma could soon see the possibility that Indigenous people may be able to lead environmental regulation.
What resources does the tribe and our environmental office have to enforce regulations? Craig Kreman, Quapaw Environmental Agency Director. McGirt may be questioning that.
The McGirt ruling has a narrow impact on Oklahoma. However, Cherokee citizen Dylan Hedden–Nicely, University of Idahos Native American law Program Director, said that the McGirt case focuses on the courts interpretation of federal Indian laws and what it might mean for wider environmental movements led by Indigenous countries.
Hedden-Nicely stated that McGirt’s focus is on Oklahoma. It did signal, at least to me, that the Supreme Court was saying, “Were open for business with tribes.”
The Supreme Court has always been hostile towards Indigenous nations. Joel Williams, a Native American Rights Fund staff attorney and citizen of Cherokee Nation, claims that tribal interests prevailed between 1969 and 1986 when Warren Burger was chief justice. However, under Burger’s successor, William Rehnquist tribes only 23% of the times. In 2005, Chief Justice Roberts took over the reins. Indigenous peoples saw only 11 percent success in defending their interests.
New additions to the court have brought Indian Law-experienced justices and legal minds who seem to be more focused on founding principles of Indian Law than rehashing old court opinions. Experts compare it to a reset in court values regarding Indigenous peoples and Indigenous Rights, which McGirt brightly illustrates.
Since the mid-80s the odds against tribes and tribal interests at Supreme Court were very strong. Weve seen a shift, stated Williams. In recent years, tribes have won about 85 percent of the cases before the U.S. Supreme Court. A 180-degree turnaround.
Williams claims that one reason has been the appointment justices with strong voting records in Indian law cases. Donald Trump, the then-president, appointed Neil Gorsuch to fill in for Antonin Scalia’s death in 2016. Democrats were concerned about his judicial record. However, Gorsuch’s West upbringing and experience with Indian case law in 10th Circuit offered potential. Both the Native American Rights Fund as the National Congress of American Indians supported the nomination. While Scalia voted in favor tribal interests approximately 16 percent of his tenure, Gorsuch has voted in favor tribal interests in 89 per cent of the cases before him. He also authored the majority decision on McGirt.
One of the many inconsistencies in Indian Law is that supreme court judges who are liberal are not always good for Indigenous communities. Justice Ruth Bader Ginsburg voted against Indigenous interests in over half of the cases before her, while Justice Breyer, who announced his retirement recently, voted only for tribal interests about 40% of the time. Matthew Fletcher of Turtle Talk, an influential Indian Law blog wrote that Justice Breyer wasn’t a tribal sovereignty warrior as Sotomayor. But he wasn’t an Indian fighter either. Sotomayor has, in fact, voted for tribal interests 78% of the time.
Hedden Nicely stated that Sonia Sotomayor and Neil Gorsuch were the two individuals who assumed intellectual leadership in the field federal Indian law within the court. This is kind of funny: Indian law can make for strange bedfellows.
The court’s ability to apply the law is at the core of any change. Monte Mills, a federal Indian lawyer professor at the University of Montana, stated that in the past the court has more often than not been open to concerns about disruptions due to tribes asserting their rights. In 2005, for example, the Oneida Indian Nation purchased their traditional lands in upstate New York. However, Sherrill, the city where most of the land was located tried to tax the nation. In an earlier case, however, the Court ruled that the law was in favor of the Nation and found that they had been illegally taken from their land. Justice Ginsberg, who wrote for the majority of the Supreme Court’s 2005 decision, sided with Sherrill. Despite the fact that the lands had not been legally acquired by the Nation, the majority ruled that any change in jurisdiction would upset the settled expectations of non Indigenous residents. McGirt, Mills stated that the law did not consider the impact of this ruling.
In that sense, McGirt marks a shift towards recommitting to some foundational principles. The law was on the side of the tribes all along, because Congress never explicitly disestablished reservations. So it wasn’t about the law, it was more about whether or not the Supreme Court would abide by the law or deferring to these practical consequences.
Kevin Stitt, Oklahoma Governor and Cherokee Nation citizen, stated that the McGirt decision was a threat to public safety and has caused harm to both Native and non-Native victims in his latest State of the State address. He and Attorney General John OConnor filed more than 40 petitions to Supreme Court to overturn the decision. These petitions were rejected last month. The U.S. Supreme Court granted a review of one question, however: whether the state has concurrent jurisdiction when a non-Native commits a crime on the reservation. This argument will be heard in April.
Only Congress can dissolve tribes, terminate treaties and end Indian Country’s existence. This is the same path officials followed from 1953 to 1968. It is possible to legislatively weaken Indigenous power. In 2005, Oklahoma Senator James Inhofe, a climate denier and outspoken climate denier, slipped in a midnight rider to the Safe, Accountable, Flexible, Efficient Transportation Equity Act. Tribes were looking at ways to implement environmental programs that were in conflict with Oklahoma’s oil and gas industry. Normally, states do not have jurisdiction over tribal lands. However, the SAFETEA rider gives Oklahoma’s governor the ability to request an exception from the EPA when it comes to environmental regulation.
Within weeks of the McGirt decision Oklahoma Governor Kevin Stitt requested that the EPA use that exception. This angered tribal leaders who were only allowed 30 days to give feedback. In December 2021 the EPA decided not to roll the decision. It cited more of a commitment to nation to nation consultation under the Biden administration.
The McGirt ruling for the Quapaw Nation means that any company that wants to remove toxic waste or help in the cleanup of Tar Creek Superfund site can be subject to Quapaws environmental regulations and not the states.
Officials from the Quapaw Nation say it will take decades to complete the cleanup and make more land around Picher usable. They also want to ensure that there are no more piles of dolomite or silicone waste scattered across the landscape.
Recently, Governor Kevin Stitt was invited to Picher by Guy Barker, Secretary Treasurer of the Quapaw Nation, and Joseph Byrd, Chairman. This was after the court ruled their reservation had not been disestablished. Stitt still hasnt visited.
The Quapaw leadership is happy that the state isn’t responsible for cleanup and that the tribal nation has the ability to increase its authority over environmental activity under McGirt. They look around and see that Oklahoma has done this for them.
Come drive around Picher, said Barker. See what state stewardship has done for us.
