Native American Victory Leaves Questions for Oil and Gas

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The nation’s highest court has historically delivered rulings intentioned to provide justice and clarity to important issues. Although victory was served on behalf of Oklahoma’s Native American community, it countered effectiveness with land use and regulation questions. Consequently, these questions have gone unanswered for Oklahoma’s oil and gas community.

Nearly Half of Oklahoma is Native American Land

By a ruling of 5 to 4 in McGirt v. Oklahoma, the United States Supreme Court echoed and honored the Muscogee Creek Nation decision of 1866 that 19 million acres, nearly 47% of Oklahoma, remains Native American land.

“On the far end of the Trail of Tears was a promise,” wrote Justice Neil Gorsuch, “Today we are asked whether the land these treaties promised remains an Indian reservation for purpose of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”

The case’s criminal law factor focused on the petitioner being tried in Oklahoma state court under the Major Crimes Act for crimes committed on Native American land. The Supreme Court reversed McGirt’s conviction because he is a member of the Seminole Nation, and his crimes were committed on Native American land that was never disestablished. Oklahoma, therefore, lacked jurisdiction.

Court ruling consequences in the energy world

Rules and regulations are likely to be changed, negotiated or altered after the McGirt decision. The state’s energy sector was left with vast uncertainty on when and how to move forward with both current and future projects at hand. In an attempt to categorize the decision’s consequences, it can be seen as simply regulation and taxation. 

The state’s energy industry could experience overlapping or conflicting regulation. Where the Oklahoma Corporate Commission (OCC) had authority over everything oil and gas, that is no longer the case as they have no jurisdiction as the land in question is now being recognized as a reservation.

Since the McGirt decision, oil and gas companies have predicted and feared potential increases in costs to conduct business in eastern Oklahoma. The branding of the “Indian Country” label allows tribes the ability to tax non-tribal activities on Native American land. In response, energy businesses could incur additional taxes incurred by the tribes.

Stitt seeks clarification

According to the Petroleum Alliance of Oklahoma, Oklahoma Governor Stitt sought swift clarification after the McGirt decision. With the state’s water, land and air interests being of significant concern, he requested the Administer of the U.S. Environmental Protection Agency (EPA) prompt a federal law allowing state agencies primacy on environmental regulations within the McGirt protected Indian Country.

“Governor Stitt delivered for all Oklahomans regardless of whether they are tribal members or non-Indians,” said Brook Simmons, President of the Alliance. “He acted to make sure trusted and experienced state agencies like the Oklahoma Department of Environmental Quality; Oklahoma Corporation Commission; Oklahoma Water Resources Board; and Oklahoma Department of Agriculture, Food and Forestry can continue to enforce regulations delegated to the state by EPA in Indian Country.”

Simmons stated that Stitt’s actions were a brilliant move in providing a clear understanding for all Oklahoma citizens. Establishing clear regulations for all to adhere to would provide for an equal playing field for businesses. 

This act would also result in significant funds saved by all businesses in a post-McGirt decision world. Established regulations honored by all would allow for equality of all Oklahomans conducting business everywhere within the state, but more specifically, the land affected by the McGirt outcome.

 

Nick Vaccaro is a freelance writer and photographer. Besides providing technical writing services, he is an HSE consultant in the oil and gas industry with eight years of experience. He also contributes to Louisiana Sportsman Magazine and follows and photographs American Kennel Club field and herding trials. Nick has a BA in Photojournalism from Loyola University and resides in the New Orleans area. 210-240-7188 [email protected]