Tulsa Attorney BlogMcGirt Expands to Mining Regulation in Northeast Oklahoma

Muskogee Creek Nation Was Never Disestablished

Video Transcribed: McGirt expands to mining operations in Oklahoma. I’m McGirt attorney James Wirth. Got a little bit of an update regarding the ongoing repercussions from the McGirt decision from the United States Supreme Court. They found the Muskogee Creek Nation was never disestablished.

So there are some things that have been going on behind the scenes. Obviously, this had a huge effect on a criminal procedure in Oklahoma, where and who can be tried in what courts, but there are also repercussions going on in all other or many other areas of law, including taxation and regulation. This case particularly deals with mining, coal mining reclamation, and regulation.

attorney in OklahomaThe case is a state of Oklahoma versus the United States Department of the Interior. And that is filed in federal court. And essentially what happened is after McGirt, the federal government had made a request that the state of Oklahoma turn over all of their information related to regulation and reclamation of coal mining in the state of Oklahoma that is covered by the historic boundaries of the Muskogee Creek reservation, saying that now that we know now from the United States Supreme Court that the nation’s reservation was never disestablished, that doesn’t fall within the purview of regulation by the state of Oklahoma. And it goes back to the federal government.

In response, the state of Oklahoma did not want to turn all of that over, did not want to allow the state, I’m sorry, the Feds to start those proceedings and essentially to kick the state out of that. So they refused to comply, didn’t turn that information over, but it’s not the Feds that filed suit.

The Feds then cut the purse strings and said, well, we’re not going to give you the federal funds related to the reclamation if you’re not going to comply with what we’re saying.

So the state of Oklahoma filed suit against the federal government and the appropriate regulatory agency that handles coal mining reclamation in the states and wanted an injunction saying that you should be prohibited and stopped from taking over the control of those. And you should be doing business as usual, regardless of what the United States Supreme Court said in McGirt, that’s a criminal case. This is coal mining regulation.

And we have a decision from the district court. It’s actually the Northern, or I’m sorry, not the Northern district, but it’s the Western district of Oklahoma federal court. And that is judge Stephen Friot. And what he provided is he denied the state’s request for an injunction. Finding that Oklahoma has not shown a likelihood of success on the merits of the case. And therefore it is not entitled to preliminary relief.

What the court found is the contentions advanced by Oklahoma, in this case, collide directly with the plain language of federal legislation governing surface mining on the newly recognized Creek reservation. So it’s actually a pretty harshly-worded opinion by that judge finding that this is that we’re talking about, its Indian country and therefore it needs to be treated as such and it’s under the jurisdiction of the Feds.

And although this is not a final decision, it’s just a decision on the preliminary injunction. It certainly gives you an idea of where they’re headed on this. So this comes down to, I mean, a lot of people, state of Oklahoma, a lot of people say, well, it’s very specific based on the language of McGirt that it was relegated, just not only to the Muskogee Creek Nation, not only to criminal cases but also to the Major Crimes Act.

And because the case of McGirt involved the Major Crimes Act is a major crime and it was in that tribal jurisdiction. And that’s the argument that they say. Moving forward well, the court only found that it was disestablished for this purpose, but ultimately there are no different purposes for establishing whether a reservation has been disestablished or not.\

Either the reservation still exists or it does not. And if the court McGirt finds that it does not exist, that is implications all over the place that decides how things happen when there is a tribal reservation, as far as taxation.

So, people, a lot of people are not paying their state taxes, because they say they don’t have to now because they live and work on the tribal reservation. The state of Oklahoma is fighting those issues as well. And again, they’re trying to say, well, McGirt is relegated to all these things.

But either your reservation exists or it doesn’t. And it’s existing laws, not new laws after McGirt. It’s existing laws based on what happens if somebody is on a reservation or something occurs on a reservation that’s being used.

So it’s really hard to say the reservation exists for criminal defense, but it does not exist for taxes. So the United States Supreme Court decision in McGirt is far-reaching. It didn’t mean to be far-reaching, but it’s difficult to say the reservation exists for this and not something else. We’re seeing all of these consequences come about based on that. And this is just one more related to mining regulations.

So we do have a decision now from a federal court saying that a preliminary injunction is denied by the state, that they do not have a likelihood of meeting their burden in the case to say that they should retain a jurisdiction to handle the regulation and reclamation of these coal mining sites within the boundaries of the Muskogee Creek Nation.

So if you’ve got any questions about this, you’re going to want to talk to an attorney about that particularly confidentially. To get that scheduled with somebody in my office you can go online to makelaweasy.com.

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