Potential Land and Natural Resources Policy Implications of McGirt v. Oklahoma

Potential Land and Natural Resources Policy Implications of McGirt v. Oklahoma

INSIGHTi
Potential Land and Natural Resources Policy
Implications of McGirt v. Oklahoma
August 21, 2020
On July 9, 2020, the Supreme Court ruled that Congress had never disestablished the Muscogee (Creek)
Nation’s (MCN) reservation, set aside for MCN in the 19th century, and thus the reservation remains
“Indian country” for purposes of criminal jurisdiction under the Major Crimes Act. According to the
dissenting opinion, the MCN’s reservation spans 3 mil ion acres. In addition, four other tribes share a
common history with MCN (Cherokee, Choctaw, Chickasaw, and Seminole Nations of Oklahoma,
together referred to as the Five Tribes), meaning nearly 19 mil ion acres in eastern Oklahoma could be
considered an Indian reservation. The McGirt decision has potential land and natural resources policy
implications discussed in this Insight.
Because this case dealt with criminal jurisdiction, the impacts, if any, to civil jurisdiction are not
immediately clear. Tribal land areas in Oklahoma often have complex histories involving treaties,
common law, statutes, and regulations. Additional y, many laws and regulations apply only to the Five
Tribes—an in-depth analysis of which is outside the scope of this Insight. This Insight provides an
overview of observer and stakeholder comments on a variety of potential impacts to land and natural
resources.
Potential Land and Natural Resources Implications
Because of the decision, some assert that much of eastern Oklahoma is an Indian reservation. Others
contend, however, that the other four of the Five Tribes might be in a position to seek a separate legal
ruling through litigation. Further, some assert the decision may impact civil regulatory authority within
MCN’s reservation.
Some observers, including MCN, state that not much wil change for most residents living in this area.
For instance, some assert land ownership wil not change in eastern Oklahoma and existing federal law
would limit tribal civil regulatory jurisdiction over non-Indians within the reservation. But some
stakeholders describe potential chal enges with jurisdictional issues. For example, following the decision,
Oklahoma’s governor formed a commission to advise the governor on civil, criminal, and regulatory
concerns.
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Concerns raised by the decision have been addressed by one of the other Five Tribes. The Choctaw
Nation issued a statement to the public that emergency services such as 9-1-1 remain in place, as wel as
al agreements the tribe has with the state, such as hunting and fishing agreements. The Choctaw Nation
stated private property ownership on its lands wil not be affected.
Other stakeholders have discussed the possibility of re-recognizing reservation boundaries for other tribes
if Congress did not expressly diminish their boundaries. Some observers discussing the potential issue
areas arising from the decision assert there could be implications for taxation and alcohol sales, expansion
of Indian gaming, and the possibility of the Five Tribes more easily bringing land into trust.
Policy Considerations
The policy considerations of the decision have many complexities and interdependencies, some of which
may take years to fully develop. However, Congress may consider potential issues in the areas of land and
natural resources. Although the rest of the Fives Tribes may be similarly situated, the below policy
considerations specifical y address MCN’s re-recognized boundaries.
Impacts to Appropriations
The Bureau of Indian Affairs (BIA) is the primary land management agency for land held in trust on
behalf of Indian tribes. Much of the MCN reservation is fee land, and BIA does not have a role in land
management activities, such as leases or rights-of-way, that include fee interests. BIA may stil have
limited responsibilities regarding fee land held by tribes, such as recording land title documents. If MCN
is able to more easily have land brought into trust within its re-recognized boundaries, it would add
additional acreage under BIA responsibility. Thus, BIA may request funding for increased land
management activities for those lands. Congress could request that BIA determine potential impacts to its
management responsibilities and budget.
Some have suggested that new water rights claims might arise as a result of this decision. Any such
claims would need to be negotiated or litigated through historical y lengthy processes. Were any such
rights awarded via settlement, Congress could be asked to consider authorizing legislation similar to prior
enacted Indian water rights settlements.
Federal Agency Considerations
One consideration is whether federal laws might apply in lieu of state laws to the land and natural
resources on the fee land within the MCN reservation. For example, the oil and gas industry and pipeline
operators have expressed concern about being subject to federal or tribal rules instead of state regulation
on operations previously considered to be on state land. Also, some laws, such as the National Historic
Preservation Act (54 U.S.C. §§300101 et seq.), are applied differently when federal projects are within the
boundaries of a reservation. Agencies have certain obligations when maintaining the federal trust
responsibility to tribes and engaging in government-to-government consultations on federal actions within
the boundaries of an Indian reservation. Depending on the scope of how the ruling is applied, federal
agencies may seek additional resources to meet their responsibilities to MCN under applicable laws and
policies.
Federal lands and facilities are located within the MCN reservation, including several Department of
Defense sites, U.S. Army Corps of Engineers reservoirs, and a U.S. Fish and Wildlife Service national
wildlife refuge. Any potential impacts to the status of federal land ownership remain to be seen. Even if
federal land status remains unaltered by this decision, how federal agencies interact with MCN could
change. For example, the Department of the Interior encourages partnerships with tribes for managing

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federal lands—such partnerships could be bolstered by being within MCN’s re-recognized boundaries.
Also, in the 116th Congress, legislation has been introduced that would restore certain federal properties to
a tribe located within its reservation boundaries for wildlife management purposes. Congress may request
federal land management agencies managing lands within MCN’s reservation boundaries report on
implications for land management policies and budgets.

Author Information

Tana Fitzpatrick

Specialist in Natural Resources Policy

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