Several cases before the U.S. Supreme Court this term touched environmental law, ranging from jurisdictional disputes over a state’s right to ban uranium mining to whether state or federal laws apply when hunting moose from a hovercraft along an Alaskan river. An unusual amount of cases navigate the intersection of environmental regulations and tribal sovereignty, the Court so far siding with tribes on the issues of state fuel tax exemptions and hunting rights. One pending case, Carpenter v. Murphy, is not explicitly environmental, but the answer to its core question has potentially seismic environmental implications: is the eastern half of Oklahoma still, technically, an Indian reservation? While the case primarily involves criminal jurisdiction, the degree to which the Court accepts or rejects this question may alter taxation, regulation, and even ownership of one of the most energy resource-rich regions in the country.
Such a dramatic question arose from a 20-year-old murder case. Patrick Murphy, a member of the Muscogee Creek Tribe, was convicted and sentenced to death by the state of Oklahoma for the grisly murder of another Creek man in 1999. Murphy appealed, arguing that the crime occurred on land within the bounds of the Creek’s 1866 treaty, land part of which was formerly known as “Indian Territory,” an unorganized territory set aside by the 1834 Indian Intercourse Act for the “Five Civilized Tribes” forced westward by President Andrew Jackson. The 1887 Dawes Allotment Act, otherwise known as the General Allotment Act (GAA), brought a wave of settlers seeking parcels of land, claiming the majority of Oklahoma land west of Indian Territory. At the turn of the century, with pressure mounting from a steady influx of settlers, Congress used the GAA to divide up Creek land among tribal citizens too, while granting the “surplus” to settlers as “fee land,” a policy congruous with assimilationist attitudes of the time. The 1906 Enabling Act combined Oklahoma and Indian Territories into the state of Oklahoma, albeit one that may not “limit or impact the rights of property belonging to the Indians of said Territories.” The question is whether the merging of territories to form one state disestablished tribal jurisdiction on parcels within treaty bounds but allotted to non-Indians. The Tenth Circuit said it did not, overturning Murphy’s conviction and setting up a high-stakes battle at the Supreme Court, one over a century in the making.
The state argues that the reservation doesn’t exist because, in their jurisdictional view, it hasn’t; at least not for the last century. The only formal reservation that exists in Oklahoma today is the Osage’s, who in 1906 explicitly bargained to retain their own “surplus” land parcels, and later confirmed the entirety of their land to be a reservation, or “Indian Country,” in a 1926 Supreme Court case involving the infamous oil-driven “Osage murders.” While other tribes in Oklahoma have prosecuted Indians (and only Indians) on their GAA allotments, land held in trust by federal government, the state of Oklahoma has treated those “fee land” parcels as virtually no different than other state land. On these parcels, Oklahoma levies taxes, sets environmental regulations, and prosecutes Indians and non-Indians alike. The result is a checkerboard of jurisdictions, an unsteady peace developed from years of accommodation and negotiation between tribal and state authorities. Patrick Murphy’s alleged actions that night in 1999 occurred on one of these parcels, and have thrown the legs out from under this status quo. In its closing statements in oral arguments last November, the state emphasized that were the Court to side with the tribe, the sky would fall in eastern Oklahoma: local governments would cease to function, and over 2,000 Indians convicted of capital crimes would have their cases reopened.
The tribe, however, argues that the state is being overdramatic. The tribe argues that any jurisdiction restored would be minimal, mainly applying to Major Crimes Act, which gives the federal government exclusive jurisdiction over crimes committed by Indians in Indian Country. The state’s apocalyptic projections ignore the already cooperative nature of Creek and state governments. Disregarding the “chaos” rhetoric, the tribe argued its case is firmly supported by precedent. The most important case is Solem v. Bartlett, where the Court found that Congress has to explicitly and affirmatively disestablish a reservation for it no longer to exist, a notion the Court unanimously upheld in 2016’s Nebraska v. Parker. The gravest challenge is 2005’s Sherrill, N.Y. v. Oneida Indian Nation of New York that stated the Oneida Indian Nation’s purchase of former reservation land after a 200-year period of being in state possession does not automatically restore “Indian Country” status to that land, especially given the tribe did not attempt to regain title during that period. Sherrill is interesting because it simultaneously showed a commitment to Solem and reluctance to upset the status quo. Carpenter’s key difference is that the land in question was never un-acquired; the lines of control just got a little hazy. This ambiguity has led both sides to speculate on congressional intent: was this simply a clerical oversight, or did Congress never intend to disestablish the reservations?
The Court took an extraordinary measure to request two briefs following oral arguments, both of which suggest the Court has its hands tied by Solem while also trying to do (pre-emptive) damage control. It is likely that if the Court finds for the tribe, it will be on narrow grounds, a “split the difference” philosophy. Still, any kind of designation of “Indian Country” could lead the Creeks (and the rest of the “Five Civilized Tribes”) to assert jurisdiction over its mineral estate, challenging a 1924 law that explicitly excluded them from issuing mining leases. The Osage did this in 2004, affirming rights to a historically well-endowed land that brought the Osage more wealth “than all of the American gold rushes combined.” Today, roughly half of Oklahoma’s highest oil-producing counties are on Five Tribes lands, while a number of easternmost counties have begun producing oil since 2012, thanks to technological advancements. A formal “Indian Country” designation would not change day-to-day life for non-Indians, as states would retain criminal and civil jurisdiction, but would fundamentally change (and even eliminate) state control over mineral extraction. This latter point is the elephant in the room. Industry oversight would transfer to tribes and the U.S. Department of the Interior, which has recently enacted increasingly specific rules on how leasing in Indian Country operates.
It is hard to speculate just how much money the state’s oil and gas sector would lose, but the situation was deemed important enough to the Oklahoma Oil and Gas Association (OKOGA) to submit their opinions to the Court. In an amici curiae brief, OKOGA lamented the imminent decline of Oklahoma’s “iconic” oil and gas infrastructure, and warned that “consequences for the great majority of the population residing within the former Creek territory are far too significant,” a Sherrill-esque argument that emphasized the danger of disruption. According to OKOGA, at stake are not only laws, but also lives, livelihood, and culture—an irony not lost by those on the other side of the issue.
Yet, environmental implications extend beyond energy. Tribal governments could set their own water quality standards, which, if more stringent than those of the state, could have severe implications for upstream, off-reservation polluters, as the tribe’s standard could supersede the state’s. A battle over water could also proxy as a battle over fracking, a water-intensive process that has increased Oklahoma’s natural gas production steadily, making it the third top producer in the United States. The balance of power in Oklahoma would fundamentally change, as the state would now have to respond to a consolidated, substantive political entity long disregarded. The Court will release its decision in the coming days; states and tribes will be watching, and the rest of the country should be too.