Court: Creek, Choctaw, and Cherokee nations can regulate surface coal mining in Oklahoma, not the state

The U.S. District Court for the Western District of Oklahoma has ruled that the Creek, Choctaw, and Cherokee nations can control surface coal mining decisions within their expansive historical reservation boundaries.

The ruling follows from the U.S. Supreme Court’s landmark 2020 decision in McGirt v. Oklahoma, which reinstated reservation boundaries before Oklahoma became a state. Today, under McGirt, approximately 43 percent of Oklahoma is “Indian Territory,” including much of Tulsa, the state’s second-largest city, PBS reported.

Indian Territory also includes all of the state’s coal deposits.

Indian Territory, Oklahoma, and broken promises

Result of the 1830 Indian Removal Act Image: Wikimedia Commons

To understand the decisions in both McGirt and state of Oklahoma v. U.S. Department of Interior, you need to go back to the early 1800s. The number of white settlers in the Southeast United States was growing and they wanted valuable Indian lands. They pressured the U.S. government to remove the Native Nations so they could take it.

President Jackson would sign the Indian Removal Act in 1830. Over the next decade and a half, the government would force some 60,000 members of five Native Nations — the Cherokee, Muscogee (Creek), Seminole, Chickasaw, and Choctaw — west of the Mississippi onto what was then called “Indian Territory,” Wikipedia said.

(The forced removal was brutal. For the Cherokee, it’s known as the Trail of Tears. At least 4,000 Cherokees died during the forced relocation, “one quarter of the population—and many were buried in unmarked graves,” according to a Cherokee history.)

Three decades later, the Civil War dramatically reshaped Indian Territory. Most members of the five Native Nations sided with the Confederacy. After the war, the United States forced new treaties with them, with harsh conditions.

The new treaties required the five Nations collectively to cede more than half of their lands. The U.S. government would use those lands to relocate Plains Indians, such as the Kiowa and Arapaho.

The treaties also required Native Nations to allow railroads to cross their remaining territory, a change with a huge impact. “The Missouri, Kansas, and Texas Railway, completed in 1872, was the first railroad to cross the Choctaw Nation. A rapid influx of American settlers accompanied the railroads into Indian Territory,” a Choctaw history said.

A map of the Oklahoma Territory and the reduced Indian Territory circa 1890’s. Image: kmusser via Wikimedia Commons.

The post-Civil War map of Indian Territory included unassigned lands. That area would be opened for homesteading. The 1899 Oklahoma Land Rush was the precursor to Oklahoma becoming a state in 1907.

As a practical matter, the state had long ceased recognizing the five Native Nations’ historical boundaries.

McGirt

McGirt v. Oklahoma was an effort by Jimcy McGirt to get a new trial. McGirt is an enrolled member of the Seminole Nation and was convicted of serious sex crimes in state court.

McGirt’s crime took place within the historical boundaries of the Creek Reservation. The Major Crimes Act of 1885 said that the federal government had jurisdiction over major crimes committed on reservations, not the states. So McGirt sued to get a new trial, saying the state didn’t have jurisdiction to prosecute him.

The U.S. Supreme Court ruled in his favor, concluding that Congress had never disestablished the Creek Reservation. It meant “Land reserved for the Creek Nation since the 19th century remains ‘Indian country’ under the Major Crimes Act … ” an Oyez summary said.

The McGirt decision only addressed the Creek Nation. The Oklahoma Court of Criminal Appeals would later recognize the continued existence of the historical boundaries of the Choctaw and Cherokee reservations, the District Court wrote.

Applying McGirt to surface coal mining decisions

The U.S. Supreme Court acknowledged that the McGirt decision could impact other issues of state jurisdiction.

In state of Oklahoma v. U.S. Department of Interior, the court noted that the “land comprising the Creek, Choctaw, and Cherokee Reservations makes up a huge swath of eastern Oklahoma and includes all the surface coal mining and reclamation activities in the state.”

Image: University of Oklahoma.

The question posed to the U.S. District Court in the state of Oklahoma v. U.S. Department of Interior was “whether Oklahoma may continue to regulate surface coal mining and reclamation operations” within the historical Creek, Choctaw, and Cherokee reservations.

The federal government — specifically the Office of Surface Mining Reclamation and Enforcement within the U.S. Department of Interior — regulates the surfacing mine of coal. While the federal government sets the rules, state governments can apply to administer the program, which Oklahoma did.

However, the state’s jurisdiction doesn’t apply to any federal or Indian lands.

“Indian lands” includes mineral interests, the District Court wrote. And federal law “allows an Indian tribe to prepare its own tribal program for the regulation of surface mining and reclamation operations.”

Based on McGirt, the Department of the Interior concluded that the state of Oklahoma no longer had jurisdiction to regulate surface mining on Indian lands.

The state of Oklahoma took the case to U.S. District Court and lost.

In the big picture of coal production, Oklahoma is a small player, with 0.3 percent of the nation’s recoverable coal, according to the U.S. Energy Information Administration. “In 2020, the state’s 2 active coal mines produced only about 795 tons of bituminous coal, down from almost 2 million tons produced from 10 mines in 2006,” it said.

That doesn’t diminish the importance of the District Court’s ruling in state of Oklahoma v. U.S. Department of Interior, which affirms historical reservation boundaries.

Expect an appeal.

2 thoughts on “Court: Creek, Choctaw, and Cherokee nations can regulate surface coal mining in Oklahoma, not the state

  1. A few things:

    Please keep in mind there are 39 nations that are headquartered in Oklahoma.
    Not just the Cherokee.

    In fact, the Cherokee nation was the last of the 39 nations to arrive to IT at the end of the 1830s.

    The map also shows the area in question predominantly in the Muskogee Nation and Choctaw Nation.

    Tulsa, unlike OKC, is a Rez Town.

    But after the State failures to enforce safety measures prior to the Gore supersite or the Picher supersite – I am certain the tribes will do better than Oklahoma.

    Like

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