A recent decision by the U.S. Interior Department to remove Oklahoma’s authority over enforcement of coal mining regulations in the Muscogee (Creek) Reservation following a 2020 U.S. Supreme Court decision affected at least two state agencies.
The move, based on the justices 5-4 McGirt decision which overturned a state criminal conviction because the crime happened on Indian reservation land, yanked authority from the Oklahoma Department of Mines and the Oklahoma Conservation Commission from carrying out state missions on the Muscogee (Creek) Reservation land.
“It was a surprise,” admitted Oklahoma Energy Secretary Ken Wagner in an interview with OK Energy Today. He explained the removal of enforcement authority from the Department of Mines affected five permits.
“None are active,” he said, stating that the Conservation Commission was another matter because some reclamation activity was underway.
The Conservation Commission’s Abandoned Mine Land Reclamation Division is responsible for reclaiming surface and underground mine sites abandoned prior to August 1977. The program is 100% federally funded from tax on active coal mine production.
There remains a possibility the state might challenge the Interior Department’s decision.
“It’s still being evaluated by the governor’s legal department and the Attorney General,” added Wagner. “We disagree that McGirt applies to civil jurisdiction. We are going to abide by the decision but it doesn’t preclude the state from filing a challenge through legal means.”
A spokeswoman for the office of Gov. Kevin Stitt pointed to a recent legal offering from Noah R. Feldman, a Felix Frankfurter Professor of Law at Harvard Law School and chairman of the Society of Fellows at Harvard University.
In a paper entitled “Legal Consequences in the Wake of McGirt v. Oklahoma: An Analysis”, Feldman suggested if the state were to seek a rehearing it would likely win and the high court would reverse its original decision made before the death of Justice Ruth Bader Ginsburg.
It is Feldman’s opinion that Ginsburg’s replacement, conservative Justice Amy Coney Barrett would probably side with the state in its case. The original McGirt decision was a 5-4 vote.
“The threshold question for assessing whether the court would now overturn McGirt is whether Justice Barrett would join Justice Gorsuch, the only conservative to have been in the majority in McGirt, or whether she would vote with the Court’s other four conservatives,” wrote Feldman in his analysis.
His analysis might also embolden the state’s probability in challenging the Interior Department’s move. Feldman pointed to a previous U.S. Supreme Court decision, City of Sherrill v. Oneida Nation (2005), a case involving Indian reservation land in New York.
Generations passed during which non-Indians owned and developed the area that once was the Tribe’s historic reservation. When the Oneida Indian Nation bought significant pieces of land in open-market transactions in the 1990s, the city of Sherrill attempted to tax commercial properties on the land. The Oneida Indian Nation maintained the properties were exempt from taxation.
The matter ended up in court and eventually the U.S. Supreme Court reversed lower court decisions, ruling, “the long lapse of time, during which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and the attendant dramatic changes in the character of the properties, preclude” the remedy sought.”
Feldman opines that the elements in the Sherrill case apply to the potential post-McGirt situation.
“In both situations, “justifiable expectations” were “grounded” in long periods of the states “uncontested” exercise of “regulatory jurisdiction.” In both cases, there existed a long period of time in which the tribes did not seek regulatory jurisdiction,” wrote Feldman.