A lawsuit that will almost certainly test the limits of last year’s McGirt v. Oklahoma decision has been filed by Gov. Kevin Stitt’s administration.
The suit, in U.S. District Court in Oklahoma City, challenges the U.S. Interior Department’s announcement several months ago that it is assuming regulation of surface coal mining and reclamation within the boundaries of the Muscogee Nation.
It said its decision was based on McGirt.
“The Department of the Interior and other defendants in this case are dead wrong,” Stitt said in a press release announcing the lawsuit. “They are attempting to unlawfully federalize mines that have been regulated by Oklahoma for almost 40 years (and are) ignoring the clear limitations in the McGirt decision. … The state of Oklahoma has no choice but to pursue legal action.”
The state is challenging not only the federal government’s reasoning but the procedure by which it assumed jurisdiction over mining regulation and rehabilitation.
The state apparently has retained the national law firm Hunton Andrews Kurth, which has extensive background in energy law, to represent it in the case.
Only a handful of surface coal mines are licensed within the Muscogee Nation boundaries, and it is believed that none is actually still operating, but that is not the real issue at stake.
The issue is to what lengths McGirt might extend — and whether the state and the Stitt administration are able to clarify or even overturn it.
Last July, the U.S. Supreme Court narrowly ruled that the state had no jurisdiction over crimes involving American Indians within the boundaries of the Muscogee Nation because Congress had never legally terminated those boundaries.
The court specifically limited its decision to major crimes within the Muscogee Nation, but Oklahoma state courts have acknowledged that it effectively applies to the Cherokee, Chickasaw, Choctaw and Seminole nations, as well.
Questions have also been raised about whether McGirt could effectively strip the state of control of civil matters in what amounts to the eastern half of Oklahoma. That could include everything from taxation and regulatory authority to marriages and divorces.
The federal government decided to test McGirt’s limits by asserting control of a small program that employs a handful of people at the Oklahoma Conservation Commission who oversee a federal reclamation grant.
The lawsuit by Oklahoma Solicitor General Mithun Mansinghani on behalf of the state argues that the federal government overstepped its bounds by doing so but also says: “It is Plaintiffs’ position that McGirt was incorrectly decided.”
Stitt has been quoted previously as saying he hopes to have McGirt overturned.
That has upset many Native residents of Oklahoma, who see McGirt as validation of tribal sovereignty.
Mike McBride, a Tulsa attorney and authority on Indian law, said the case could take years to resolve because of the administrative procedures involved.
“I expect there is going to be a lot of administrative challenges,” McBride said. “That can take a long time.”
The Muscogee Nation did not respond to a request for comment.
Related video: Governor addresses Supreme Court’s McGirt ruling during State of the State address