“What’s Mine is Yours”: How the Supreme Court’s Decision in McGirt v. Oklahoma Has Altered the State’s Coal Mining Landscape

blog By: Jordan Kamp

Following the Supreme Court’s landmark decision in McGirt v. Oklahoma, the state of Oklahoma has endured not only a shift in its landscape, but also a shift in its jurisdiction over surface coal mining.[1] In 1997, Jimcy McGirt was convicted by the state of Oklahoma for raping and sexually assaulting a child.[2] However, McGirt challenged Oklahoma’s jurisdiction over him because his crimes took place within the original boundaries of the Creek Nation Reservation and he was a citizen of the Seminole Nation.[3] Therefore, McGirt asserted, according to the federal Major Crimes Act, “within the Indian Country, any Indian who commits certain enumerated offenses against the person or property of another Indian or any other person shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.”[4] Accordingly, the Supreme Court held that since the Muscogee (Creek) Nation’s reservation in eastern Oklahoma had never been disestablished, the state of Oklahoma lacked criminal jurisdiction to prosecute McGirt.[5]

Although McGirt turned on a question of criminal jurisdiction, its result has already found its way to the legally unavoidable consequence of the application of federal statutory law in Oklahoma v. US DOI.[6] At the heart of the matter is the Surface Mining Control and Reclamation Act (SMCRA), which implements programs in which responsibility for the regulation of surface coal mining in the United States is shared between the U.S. Secretary of the Interior and State regulatory authorities.[7] Under its approved program, Oklahoma may monitor “coal exploration and surface coal mining and reclamation operations on non-Indian and non-Federal lands within Oklahoma.”[8] However, following the McGirt decision, the federal Office of Surface Mining Reclamation and Enforcement (OSMRE) notified Oklahoma that it could no longer operate its state regulatory program on the newly confirmed Creek Reservation due to it qualifying as “Indian land” under SMCRA.[9] As a result, the federal government would assume control from the state over surface coal mining and reclamation operations on lands within the boundaries of the Creek, Cherokee, and Choctaw Nations.[10]

In response, Oklahoma challenged OSMRE’s decision and filed a motion for a preliminary injunction, contending that McGirt’s impact is limited to federal criminal jurisdiction under the Major Crimes Act and that expanding it “beyond its narrow and express limitations” would “constitute another significant threat to Oklahoma’s sovereignty and proper regulatory authority.”[11] In its opinion, the U.S. District Court for the Western District of Oklahoma immediately acknowledged that McGirt placed the state of Oklahoma and its citizens in a disadvantaged position because core functions of state government that had been relied upon by all Oklahomans for over a century are now being called into question.[12] However, U.S. District Judge Stephen P. Friot was left unpersuaded by Oklahoma’s contentions, and instead found that because “the plain language of SMCRA excludes Indian lands from state regulatory and reclamation programs, Oklahoma lacks the authority to regulate surface mining or reclamation activities on Indian land, even in the absence of a tribal regulatory program.”[13] Therefore, Oklahoma was unable to show a likelihood of success on the merits of its claims and was not entitled to a preliminary injunction.[14] Following this order, Judge Friot then granted the U.S. Department of the Interior’s cross-motion for summary judgment based on the holding that the federal SMCRA precludes states from exercising any regulatory control of surface coal mining on Native American land, barring approval from the U.S. Department of the Interior.[15] Oklahoma is now set to ask the Tenth Circuit for permission to regulate mining in Indian Country, with state officials initiating a pair of appellate cases.[16]  

Although its determination to maintain the status quo is admirable and not unfounded, Oklahoma’s efforts would be better served if it dropped this legal challenge and instead embraced its “new” normal. From its inception, the United States has recognized Indian nations as sovereign governments that are the governing entities over their territories.[17] Rather than trying to find a way to discredit the Creek nation’s right to its jurisdictional boundaries, Oklahoma and its Tribes should drop their swords and instead pick up pens to draft intergovernmental agreements pertaining to surface coal mining that would enable the State to maintain some form of regulatory control. After all, the State has already negotiated hundreds of intergovernmental agreements with tribes relating to taxation, hunting and fishing, and other fine regulatory questions, including many with the Creek.[18] By continuing this legal challenge, Oklahoma continues to push itself both further away from solving its regulatory problem and further away from peaceful negotiation with the Creek. As the saying goes, “what’s mine is yours,” and in this instance, that is surface coal mining.

[1] Janice Francis-Smith, McGirt ruling factoring into control of Oklahoma mining, The J. Rec. (Jan. 30, 2023), https://journalrecord.com/2023/01/30/mcgirt-ruling-factoring-into-control-of-oklahoma-mining/#:~:text=In%202021%2C%20about%20a%20year%20after%20the%20McGirt,encompasses%20all%20surface%20mining%20operations%20in%20the%20state. [https://perma.cc/2CZK-XLSN].

[2] Matt Irby, Why Conservatives Are Losing Their Minds Over the Supreme Court’s McGirt v. Oklahoma Decision, Balls and Strikes (Apr. 18, 2022), https://ballsandstrikes.org/law-politics/mcgirt-v-oklahoma-explained/ [https://perma.cc/E4JF-JKYJ].

[3] Id.

[4] McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020) (citing 18 U.S.C. §1153(a)).

[5] Oklahoma v. United States DOI, 577 F. Supp. 3d 1266, 1269 (W.D. Okla. 2021); see Sarah Roubidoux Lawson and Megan Powell, Unsettled Consequences of the McGirt Decision, The Regul. Rev. (Apr. 1, 2021), https://www.theregreview.org/2021/04/01/lawson-powell-unsettled-consequences-mcgirt/ [https://perma.cc/7L9Y-94LA].

[6] Lawson, supra note v; see United States DOI, 577 F. Supp. 3d at 1268.

[7] See United States DOI, 577 F. Supp. 3d at 1270.

[8] Id.

[9] Id.

[10] Mike W. Ray, Feds strip Oklahoma of control over coal mining, abandoned land reclamation in ‘Indian Country’, Sw. Ledger (Jan. 7, 2022), https://www.southwestledger.news/news/feds-strip-oklahoma-control-over-coal-mining-abandoned-land-reclamation-indian-country-0#:~:text=The%20Surface%20Mining%20Control%20and%20Reclamation%20Act%20(SMCRA)%20allows%20a,Owens%20related [https://perma.cc/2D7S-TXUD].

[11] Id.; see United States DOI, 577 F. Supp. 3d at 1268.

[12] See United States DOI, 577 F. Supp. 3d at 1269.

[13] Id. at 1273.

[14] Id. at 1279.

[15] David Holtzman, Feds Have Power Over Okla. Reservation Mining, Judge Says, Law360 (Nov. 9, 2022, 9:03 PM), https://www.law360.com/articles/1548171/feds-have-power-over-okla-reservation-mining-judge-says [https://perma.cc/AX45-VPPC]; see Caleb Symons, Okla. Taking Reservation Mining Dispute to 10th Circ., Law360 (Jan. 13, 2023, 8:54 PM), https://www.law360.com/articles/1565694/okla-taking-reservation-mining-dispute-to-10th-circ- [https://perma.cc/H8MT-QNJQ].

[16] Symons, supra note xv.

[17] Robert J. Miller & Torey Dolan, The Indian Law Bombshell: McGirt v. Oklahoma, 101 B.U. L. Rev. 2049, 2093 (2021); see U.S. Const. art. I, § 8, cl. 3.

[18] McGirt, 140 S. Ct. at 2481.