Indian tribes in the United States rejoiced when the US Supreme Court made its landmark decision in McGirt v Oklahoma in July. The judgment that overturned a lower court decision can best be summed up in the last two sentences on the first page of the Court’s opinion: “Today we are asked whether the country that promised these treaties is an Indian Reservation within the meaning of federal criminal law remains. Because Congress has not said otherwise, we keep the government at its word. “
In McGirt v Oklahoma, the Supreme Court ruled that the area in Oklahoma reserved for the Muscogee (Creek) Nation remains tribal land within the meaning of Serious Crime Act.
For Native Americans, the McGirt ruling was a recognition. It was a statement that said: Honor the contracts. The ruling not only confirmed to the tribes that treaties – binding agreements between the US and the tribes – are still the supreme law of the country for the purposes of the US Constitution, but also the sovereignty of the tribes or the inherent authority of the tribes to act Self-government and checked the legitimacy of the tribal properties. For these reasons, the tribes retain jurisdiction over their own members in their own country. Jurisdiction also means that the tribes have the power to tax and regulate in their territory.
Our joy, however, has been tempered by history. The McGirt statement, written by Justice Neil Gorsuch, a US Supreme Court-appointed President Donald Trump, is little evidence of Trump’s relationship with Native American communities. The Trump administration has consistently taken a controversial stance towards Indians and tribes. And the federal government’s track record with its tribes is tainted with broken promises. We all suspected that it wouldn’t be long before they tried to lower the precedent set out in McGirt’s v Oklahoma ruling.
Sure enough, just three months later, the Environmental Protection Agency (EPA) sent an official letter to the state of Oklahoma specifying responsibility for environmental issues in tribal countries. The Trump administration has used public law 109-59 to justify this. The transportation bill enables Oklahoma to take environmental control of tribal land upon request to the EPA administrator. Oklahoma Republican Governor Kevin Stitt did just that just 13 days after the McGirt ruling. In filing its application, the EPA turned back the clock in Oklahoma on environmental issues, acting as if McGirt never came off against Oklahoma.
In the approval letter, the EPA approved and even added additional requests from Oklahoma. They gave Oklahoma control over the implementation and regulation of the Resource Conservation and Reclamation Act (RCRA), the Clean Air Act (CAA), the Clean Water Act (CWA), the Safe Drinking Water Act (SDWA), des Federal Insecticides, Fungicides and Rodenticides Act (SDWA) FIFRA) and Toxic Substances Control Act (TSCA) for tribal areas within state borders.
Thanks to the Trump administration, Oklahoma now has permission to dispose of hazardous wastes such as formaldehyde, mercury, lead, asbestos, toxic air pollutants and toxic pesticides, monitor underground injection control for fracking, and protect animal farms that release enormous amounts of urine faeces, which contaminate land and water in tribal areas.
The EPA has essentially given Oklahoma carte blanche to poison the homelands of indigenous nations within their borders, turning them into uninhabitable landfills and toxic wastelands on which they cannot live.
Andrew Wheeler, Trump’s EPA administrator, admitted in his letter to Governor Stitt that “the impetus for the state’s request” was McGirt’s decision. By granting Oklahoma environmental regulatory control over tribal areas, Wheeler is undermining the judgment by helping Oklahoma restore the geographic scope it was before McGirt.
There are 39 tribal nations in Oklahoma and nearly half a million people in the state who identify as Native Americans and are associated with at least one officially recognized tribe. The Trump administration’s deliberate subversion of McGirt on Oklahoma is an overt attempt to undermine tribal sovereignty. It will do irreparable harm to the tribes of Oklahoma. In addition to worsening their quality of life and stealing potential tax revenues and resources like freshwater, this poses a serious threat to their health and safety that is downright genocidal.
Casey Camp-Horinek, an environmental activist and member of the Oklahoma Ponca Tribe, 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 the racist Oklahoma Governor Stitt, but it still stands. Under the Trump administration, the destruction of all environmental protection has been stepped up in an attempt to support the fossil fuel industry at its last breath. Who is suffering from the results? Everyone and everything! Who will benefit? Trump and his friends, climate change deniers like Governor Stitt, Senators Inhofe and Langford, who are financially backed by big oil and gas. I am convinced that we must defend ourselves against this insidious judgment. In court, on the frontline and in international courts, LIFE itself is at stake. “
You’re not done either. William Barr, director of the Justice Department, visited Oklahoma to discuss how laws can be used to effectively reverse McGirt’s legal ramifications as a whole. He berated the Muscogee Nation, the tribe directly affected by the McGirt decision while he was there.
It is appalling, but not the first time a US presidential administration has refused to obey a Supreme Court decision. Andrew Jackson, a former president (from 1829 to 1837) whom Trump greatly admired, defied contract law and a ruling by the Worcester Supreme Court against Georgia. His disregard for the law led to the Trail of Tears, where thousands of Cherokee died of starvation, disease, and exposure while forcibly relocated to Oklahoma.
Colonial governments have proven time and again that they are incapable of maintaining ecosystems. Their greedy, ruthless, myopic, fatalistic, violent failure to approach the management of land, air and water has driven the planet into a climate emergency that has put the very survival of humanity at risk. Even Western scholars recognize that the sustainability practices of indigenous peoples are superior and benefit all. They are now encouraging people to use indigenous protection methods or to give them back land directly.
It remains to be seen whether the Oklahoma tribes will sue the Trump administration or try to convince Congress to repeal the law the EPA used to grant Oklahoma environmental oversight control over tribal areas. No matter what, these actions set a dangerous new precedent that should alert all Native Americans. The destruction of our ancestral lands is an act of war. Our children cannot survive in a toxic waste dump, drink poisoned water and inhale harmful air.
The views expressed in this article are from the author and do not necessarily reflect the editorial stance of Al Jazeera.