Who is responsible for fixing the environment in eastern Oklahoma

This story was created in collaboration with Newsy

One of the largest Superfund sites is located in Oklahoma’s Picher, which is located on the Quapaw Reservation. Tar Creek, which flows into the Neosho River and then on to Grand Lake is rich in zinc. Underground reservoirs leak lead-tainted water as well as other toxic chemicals 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. The landscape is littered with gray piles of dolomite, limestone and silicone waste, some as high as three stories. In 1994, the Indian Health Service was established. reportedThe federal limit for lead was exceeded by 34 percent of Native American children living in the area. This is a lasting legacy from more than 100 years of mining for lead and zinc at multiple sites across the reservation.  

It’s everywhere, according to Guy Barker (Quapaw Nation Secretary Treasurer). “Trace amounts of lead within drinking water, groundwater   it’s also in the air. It’s blowing around, it’s in the ground soils in the sandbox that the kids are playing in.

The 1970s saw the end of mining. In 1983, the Environmental Protection Agency designated the 40-square-miles around Picher as a Superfund site. The state of Oklahoma began offering buyouts of homes in 2005 to help families relocate, including many Quapaw residents, to safer areas. In 2010, the EPA began buyingouts and contracting with companies for 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, both the Supreme Court and the Supreme Court agreed hearing McGirt v. OklahomaJimcy McGirt was accused of sex crimes. He challenged his conviction and said that Oklahoma didn’t have the right to prosecute him because his crimes occurred within the Muscogee Nation. McGirt is a Seminole Nation citizen who claimed that only the federal government could pursue his cases as they occurred on Indian territory. The main issue in the case was whether or no Muscogee Nations reservation existed. Oklahoma, which became a state in 1907 believed that the reservation had been disestablished. The Supreme Court disagreed and found that Congress, the only body with the authority to terminate the tribe’s reservation, had never disestablished it even after Oklahoma became a state. 

The decision was viewed by tribal sovereignty as a victory and was later applied to Cherokee, Chickasaw and Choctaw nations in 2021. In a subsequent case, a lower court applied McGirt’s ruling and found that Quapaw Nation 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. 

A Recent reportThe Indigenous Environmental Network, an Indigenous-led non-profit that focuses on protecting the environment estimates that Indigenous people have stopped or delayed greenhouse gas emissions equivalent to at least one quarter of annual U.S./Canadian emissions. The United Nations estimatesWhile Indigenous people live in areas with approximately 80 percent of the planet’s biodiversity, they still 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 authority does the tribal environmental office have to enforce regulations and take on compliance? Craig Kreman, Quapaw Environmental Agency Director. McGirt might be able to see that.

The McGirt ruling only affects Oklahoma in its narrowest interpretation. But Cherokee citizen Dylan Hedden-Nicely, the University of Idaho’s Native American Law Program Director, says the detail in the McGirt case is in the courts interpretation of federal Indian law and what it could mean for broader environmental movements led by Indigenous nations.

“On its face, McGirt is only about Oklahoma,” Hedden-Nicely said. “But what it signaled, at least in my mind, was that the Supreme Court was saying, ‘We’re open for business for tribes.’”

Historically, The Supreme Court has been hostileto Indigenous nations. According to Joel Williams, a staff attorney with the Native American Rights Fund and citizen of the Cherokee Nation, from 1969 to 1986, when Warren Burger served as chief justice, tribal interests prevailed about 58 percent of the time, but under Burger’s successor, William Rehnquist, tribes saw success only 23 percent of the time. When Chief Justice Roberts assumed the reins in 2005, Indigenous peoples only saw their interests prevail 11 percent of the times. 

The court has added justices who have experience in Indian Law, and legal minds that seem to be focused on Indian law founding principles rather than rehashing old court opinions. Its what experts compare to a “reset” of court values in regards to Indigenous peoples and Indigenous rights, brightly illustrated through McGirt. 

“Since roughly the mid-’80s, the odds were just greatly stacked against tribes and tribal interests at the Supreme Court, and we’ve seen a shift,” said Williams. “Tribes, in more recent years, have prevailed at the U.S. Supreme Court about 85 percent of the time. Almost a 180-degree turnaround.” 

Williams claims that one reason has been the appointment justices with strong voting records in Indian law cases. After Antonin Scalia’s death in 2016, for instance, then-president Donald Trump nominated Neil Gorsuch to take his place. Democrats Raised concernsFor tribes, Gorsuchs West upbringing and experience in Indian case law in 10th Circuit gave potential. Both the Native American Rights Fund (Native American Rights Fund) and the National Congress of American Indians (NCAI) supported the nomination. And Scalia voted in favor tribal interests Around 16 percentGorsuch voted for tribal interests in 89 per cent of the cases he has been involved in during his tenure. He also authored the majority decision in McGirt.

One of many inconsistencies in Indian Law refers to the fact that Indian Law’s liberal supreme courts judges are not always good for Indigenous communities. Justice Ruth Bader Ginsburg, for instance, voted against Indigenous interests In more than half the casesShe was a part of that generation, while Justice Breyer, who just announced his retirement, voted in favor of tribal interests Only about 40%It was at the time. “Justice Breyer was no tribal sovereignty warrior la Sotomayor,” wrote Matthew Fletcher on Turtle Talk, an influential Indian Law blog, “but he was no Indian fighter, either.” Sotomayor, incidentally, has voted for tribal interests 78 percent of the time.

“Neil Gorsuch and Sonia Sotomayor have been the two people that have taken up intellectual leadership in the field of federal Indian law within the court,” said Hedden-Nicely. “Which is sort of funny: Indian law makes for strange bedfellows.”

The law’s application is at the heart of court change. Monte Mills, a federal Indian law professor from the University of Montana, stated that in the past the court has more often than not been sensitive to concerns about disruptions caused due to tribes asserting rights. For example, A 2005 caseThe Oneida Indian Nation purchased their traditional lands in New York’s upstate. 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, writing on behalf of the majority, sided for Sherrill in the Supreme Court’s final 2005 decision. Even though the lands had never been legally acquired from the Nation, the majority found that a change in jurisdiction would disrupt the “settled expectations” of non-Indigenous residents. Mills stated that McGirt was the place where Mills found the following: ImpactThe ruling was not considered, but only the law.

”So in that sense, I think McGirt does mark a shift to recommitting to some of those foundational principles: The tribes had the law on their side all along because Congress never did explicitly disestablish these reservations,” said Mills. “So the law wasn’t ever the question it was whether or not the Supreme Court would follow the law or defer to these practical consequences.”

The Oklahoma Governor and Cherokee Nation citizenKevin Stitt claimed that the McGirt decision was a danger to public safety, and that it has caused harm to both Native- and nonnative victims. He and Attorney General John OConnor have  filed more than 40 petitions to the Supreme Court seeking to overturn the decision entirely. These petitions were rejected last month. However, the U.S. Supreme Court allowed a review to one question: Does the state have concurrent jurisdiction when nonnatives commit crimes on the reservation? This argument will be heard on April. 

Only Congress can dissolve Indian Country, end treaties and legally terminate its existence. This is a path that officials took. From 1953 to 1968. Legislatively, Indigenous power could also be limited: In 2005, Oklahoma Senator James Inhofe an outspoken climate denierA midnight rider was inserted into the Safe, Accountable, Flexible, Efficient Transportation equity Act (SAFETEA). At the time, tribes were exploring how to implement environmental programs that were at odds with Oklahoma’s oil and gas industry, and while normally, states have no jurisdiction on tribal lands, the SAFETEA rider allows Oklahomas governor to ask the EPA for that exception 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. The EPA decided to slow down roll the decision in December 2021, citing more of a commitment under the Biden administration to nation-to-nation consult. 

The McGirt ruling applies to the Quapaw Nation. This means that any company wishing to transport toxic waste or aid in the cleanup at Tar Creek Superfund Site can do so by the McGirt decisioncould Quapaws’ environmental regulations will apply to you, not the state.

Officials at Quapaw Nation claim that it will take decades for cleanup to complete and make more of Picher’s land usable. Also, to make sure that there aren’t any more piles of silicone waste and dolomite across the landscape.

After the court ruled that their reservation had never been disestablished, Guy Barker, Quapaw Nations Secretary Treasurer, and Joseph Byrd Chairman invited Governor Kevin Stitt for a visit to Picher. Stitt still hasnt visited. 

The Quapaw leadership is happy that the state is not 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 where state stewardship has gotten us.”