In light of its newly recognized reservation, Cherokee Nation, and all of Oklahoma’s 38 tribal nations, finds themselves in the crosshairs between tribal sovereignty and Trumpism, between protecting the environment and Big Oil.
In the July 2020 McGirt decision, the US Supreme Court affirmed that much of eastern Oklahoma was reservation land, under the jurisdiction of the Creek, Cherokee, Choctaw, Chickasaw, and Seminole. While many were thinking about jurisdiction over criminals on various parcels within reservation lands, the Washington Post noticed the elephant in the room: Big Oil. Their headline said it all: “Now that half of Oklahoma is officially Indian land, oil industry could face new costs and environmental hurdles: The landmark Supreme Court decision give the five tribes a say over oil and gas wells, refineries, and pipelines—including those running to the Cushing hub of the Keystone XL, legal experts say.” Cushing, the “center of the oil universe” lies just outside the reservation area. At the very least, the oil industry would now need federal as well as state permits for new wells and pipelines.
Oklahoma, controlled by a large Republican majority with support from the oil industry, reacted quickly. There were (and still are) calls for the Senate to immediately terminate the treaty and abolish the reservations. The former mayor of Tulsa and prominent oil executive said “It’s going to be total chaos.” He asked the tribes to give up their rights.
Chaos did ensue when the state quickly got several tribes to sign an Agreement-in-Principle that would shift most civil jurisdiction from the Tribes to the state, thereby freeing the oil industry from any tribal requirements. The Five Tribes faced immediate internal backlash and quickly backed away from the agreement.
In response, Oklahoma Governor Kevin Stitt asked the US Environmental Protection Agency (EPA) to grant Oklahoma jurisdiction over environmental regulations on reservations. He was relying on an old 2005 law, created when Senator James Inhofe (R) attached a midnight rider to an appropriations bill, that allows the EPA to grant Oklahoma control over environmental issues on the lands of all of Oklahoma’s 38 tribes.
In late September 2020, Attorney General William Barr paid a visit to Tahlequah, ostensibly to discuss criminal law enforcement. We don’t know what was discussed during the closed-door meeting with Cherokee leaders. We do know that, the next day, Principal Chief Chuck Hoskin Jr. made a statement in support of tribal sovereignty. And we also know that, that same day, the EPA chief announced that the Inhofe rider was granted. The Trump Administration had stripped all 38 of Oklahoma’s tribes of their sovereignty over environmental issues and given it to the state of Oklahoma. Principal Chief Hoskin condemned the move.
So that’s where we are. The Biden Administration can reverse this. But even then, would the Cherokee or other tribal nations pick up the baton?
Across much of Indian County, Native reservations and communities are blue islands amidst a red prairie. Not so in Oklahoma where, at most, Native areas are purple islands in a state that went 2/3 for Trump in the 2020 election. In the Cherokee Nation even the most Native counties, Cherokee and Adair, went 65% and 80% for Trump respectively. The majority of people in these counties are not tribal citizens; there is no data regarding how Cherokees within these counties voted.
The irony is that Cherokee Nation provides public services with the efficiency of a modern democratic-socialist European state. Its $608 million budget in 2019 allocated 56% to healthcare, 37% to education and other community services; only 7% went to administration. (Most of their revenues come from federal grants treaty obligations, but 35% are from taxes and fees.)
Principal Chief Hoskin, as well as the previous Principal Chief Bill John Baker, are officially non-partisan but generally associated with Democrats. This puts Hoskin in a tight spot. He seems to be defending Cherokee sovereignty on principle, but it’s not clear he would be able to do anything with it, constrained by his own constituents. He also faces challenges by Republican-dominated Oklahoma, which is increasingly attacking tribal sovereignty.
Even with a Biden reversal of the Inhofe Rider and re-establishment of tribal sovereignty, will the Cherokee work with the Standing Rock Sioux and other tribal governments to forestall the Keystone XL pipeline and implement environmental regulations in a state that has almost none? Will they push for a conversion to alternative fuels, such as renewable diesel? Will they regulate well injection and fracking? The Supreme Court just affirmed the rights of tribes to regulate corporations doing business on tribal lands. Will they demand that industry clean up pollution from releases? Will they require compensatory restoration to make the environment whole?
The state of Oklahoma, in addition to lax regulation on industry, is also reticent to tax Big Oil in a meaningful way. Instead, they seek “revenue sharing” from tribal casinos, essentially taxing the tribes for the revenues that the state refuses to seek from the oil industry. The tribes are now in a position to challenge that, but will they?