OPINION

The US is undermining a Supreme Court ruling on Native rights

And threatening to turn our lands into a toxic waste dump.

The 1790 Treaty of the Muscogee (Creek) Nations and the United States on display. The Supreme Court ruled in July that Oklahoma cannot pursue criminal cases in much of eastern Oklahoma, which remains Native land [File: Kevin Wolf/AP Photo for Smithsonian's National Museum of the American Indian]
The 1790 Treaty of the Muscogee (Creek) Nations and the United States on display. The Supreme Court ruled in July that Oklahoma cannot pursue criminal cases in much of eastern Oklahoma, which remains Native land [File: Kevin Wolf/AP Photo for Smithsonian's National Museum of the American Indian]

Native American tribes in the United States rejoiced when the US Supreme Court issued its landmark decision in McGirt vs Oklahoma in July. The judgement, which reversed a lower court ruling, is best summarised by the last two sentences on the first page of the opinion of the Court: “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”

In McGirt vs Oklahoma, the Supreme Court determined that territory in Oklahoma reserved for the Muscogee (Creek) Nation remains tribal land for the purposes of the Major Crimes Act.

To Native Americans, the McGirt judgment was an acknowledgement. It was a declaration that said: Honour the treaties. Not only did the ruling provide the tribes with an affirmation that treaties – binding nation-to-nation agreements forged between the US and tribes – are still the supreme law of the land as defined by the US constitution, it also upheld tribal sovereignty, or the tribes’ inherent authority to self-govern, and verified the legitimacy of tribal landholdings. For these reasons, tribes retain jurisdiction over their own members on their own lands. Jurisdiction also means the tribes possess the power of taxation and regulation within their territory.

Yet our joy was tempered by history. The McGirt opinion, authored by Justice Neil Gorsuch, a US President Donald Trump appointee to the Supreme Court, is hardly emblamatic of Trump’s rapport with Native American communities. The Trump administration consistently takes an adversarial stance towards Native Americans and tribes. And the federal government’s track record in regards to its tribes is fraught with broken promises, so we all suspected it would not be long before they attempted to diminish the precedent set forth in McGirt vs Oklahoma ruling.

Sure enough, just three months later, the Environmental Protection Agency (EPA) sent an official letter to the State of Oklahoma giving it jurisdiction on environmental matters in tribal lands. The Trump administration used Public Law 109–59 to justify it. The transportation bill allows Oklahoma to assume environmental control over tribal land upon the request to the administrator of the EPA. The pro-fossil fuel Republican governor of Oklahoma, Kevin Stitt, had done exactly that only 13 days after the McGirt ruling. By granting his request, the EPA has turned back the clock in Oklahoma as far as the environment was concerned, and, in the process, behaved as if McGirt vs Oklahoma had never come to pass.

In the approval letter, the EPA granted all of Oklahoma’s requests and even added extra ones. They gave Oklahoma control over the implementation and regulation of The Resource Conservation and Recovery Act (RCRA), Clean Air Act (CAA), Clean Water Act (CWA), Safe Drinking Water Act (SDWA) Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and Toxic Substances Control Act (TSCA) on tribal lands within state boundaries.

Thanks to the Trump administration, Oklahoma now has permission to dump hazardous waste, including formaldehyde, mercury, lead, asbestos, toxic air pollutants and toxic pesticides, oversee underground injection control for fracking, and shelter corporate livestock farms that release enormous amounts of urine and faeces that contaminate land and water on tribal lands.

The EPA has essentially given Oklahoma carte blanche to poison the homelands of Indigenous Nations within its borders and turn them into uninhabitable dumping grounds and toxic wastelands unsuitable to live upon.

Andrew Wheeler, Trump’s EPA administrator, admitted in his letter to Governor Stitt that “the impetus for the State’s request” was the McGirt decision. By granting Oklahoma environmental regulatory control over tribal lands, Wheeler is undercutting the ruling by aiding Oklahoma in reestablishing the geographic scope it had prior to McGirt.

There are 39 Tribal Nations in Oklahoma and nearly half a million people in the state who identify as Native American and are affiliated with at least one federally recognised tribe. The purposeful subversion of McGirt vs Oklahoma by the Trump administration is a blatant attempt to undermine tribal sovereignty. It will cause irreparable harm to the Oklahoma tribes. Besides diminishing their quality of life and stealing potential tax revenue and resources such as fresh water, it poses a serious threat to their health and safety that is downright genocidal.

Casey Camp-Horinek, an environmental activist and member of the Ponca Tribe of Oklahoma, said the following about Wheeler’s letter in a recent statement:

“After over 500 years of oppression, lies, genocide, ecocide, and broken treaties, we should have expected the EPA ruling in favor of racist Governor Stitt of Oklahoma, yet it still stings. Under the Trump administration, destroying all environmental protection has been ramped up to give the fossil fuel industry life support as it takes its last dying breath. Who suffers the results? Everyone and everything! Who benefits? Trump and his cronies, climate-change deniers like Governor Stitt, Senators Inhofe and Langford, who are financially supported by big oil and gas. I am convinced that we must fight back against this underhanded ruling. In the courts, on the front lines and in the international courts, LIFE itself is at stake.”

They are not done yet, either. William Barr, head of the Justice Department, visited Oklahoma to discuss the ways in which legislation could be used to effectively quash the jurisdictional ramifications of McGirt altogether. He snubbed the Muscogee Nation, the tribe directly impacted by the McGirt ruling, while there.

While appalling, this is not the first time a US presidential administration has refused to abide by a Supreme Court decision. Andrew Jackson, a former president (from 1829 to 1837) who Trump greatly admires, defied treaty law and a Supreme Court ruling in Worcester vs Georgia. His disregard for the law led to the Trail of Tears, where thousands of Cherokee died of starvation, disease and exposure while being forcibly relocated to Oklahoma.

Colonial governments have proven time and again that they are incapable of maintaining ecosystems. Their greedy, reckless, myopic, fatalistic, violent non-approach to managing land, air and water has driven the planet into a climate emergency that has put the very survival of humanity in peril. Even Western scientists are acknowledging that the sustainability practices of Indigenous peoples are superior and benefit everyone. They now encourage adopting Indigenous conservation methods or returning land to them outright.

Whether Oklahoma tribes will sue the Trump administration over this or attempt to persuade Congress to repeal the law that the EPA used to grant Oklahoma environmental regulatory control over tribal lands remains to be seen. No matter what, these actions set a dangerous new precedent that should alarm all Native Nations. Destroying our ancestral lands is an act of war. Our children cannot survive in a toxic waste dump, drinking poisoned water and breathing noxious air.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.



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