In a landmark decision last summer, the U.S. Supreme Court confirmed that the eastern half the state of Oklahoma is reservation land, legally “Indian Country.” Although Oklahoma officials spent a century ignoring treaties signed by leaders of the Muscogee (Creek) Nation, the justices asserted that the treaties remain the law of the land — meaning, most likely, that the reservations of four other tribal nations that share a distinct legal and political history in Oklahoma also stand.
McGirt v. Oklahoma, a major victory for Indigenous nations, is now having legal consequences well beyond the state. The Supreme Court ruling, however, was only the beginning of a new battle to redefine Oklahoma’s identity.
On its face, the McGirt case had nothing to do with the oil and gas industry. Jimcy McGirt, convicted to life in prison for child sex abuse, argued that the land where he committed the crimes qualifies as a reservation. Thus, he successfully argued that his conviction should be overturned since he should have been tried in federal, not state, court.
The problem for the oil and gas industry is that McGirt’s push to reconsider jurisdiction on the band of territory where the alleged crime took place meant also reconsidering the status of around half of Oklahoma. The decision upended the state’s authority over a swath of land that produces 40 percent of Oklahoma’s total monthly oil and gas production and is home to the global oil pricing hub of Cushing, a town known as the “pipeline crossroads of the world.”
Almost immediately after the court ruled, Republican Gov. Kevin Stitt placed representatives of the oil and gas industry at the head of a key commission deciding what the state’s post-McGirt future will look like. Fossil fuel representatives are also moving to deploy a complex legal strategy aimed at forcing the courts to resolve uncertainty about what it now means to produce oil in Oklahoma.
Half a year after the landmark ruling, both of these efforts show the central role the oil and gas industry has played in the state, as Oklahoma responds to the Supreme Court.
Photo: Visions of America/Universal Images Group via Getty Images
“One Oklahoma”
Eleven days after the court handed down the McGirt decision, Stitt announced the creation of the Commission on Cooperative Sovereignty, designed to make recommendations to the state and Congress on how to handle the court’s decision. Despite the commission name’s reference to tribal self-governance, the roster included no tribal leaders. The oil and gas industry, though, is heavily represented.
Stitt appointed Larry Nichols, founder and CEO of fracking giant Devon Energy, as commission chair. He’s joined by fellow fracking pioneer Harold Hamm, executive chair and founder of Continental Resources, as well as Alan Armstrong, the CEO of the pipeline giant Williams Companies. Both Devon and Continental have drilling operations throughout Oklahoma. Both of the companies’ political action committees, and Hamm himself, have donated heavily to Stitt’s campaigns and inaugural funds.
Additional commission members include fossil fuel industry lobbyists like former Republican U.S. Sens. J.C. Watts, who has lobbied for the Hamm-founded Domestic Energy Producers Alliance, and Don Nickles, who has lobbied for ExxonMobil, Anadarko Petroleum, and Occidental Petroleum.
Republican state Sen. Julie Daniels and Rep. Mark Lepak are also commission members. They both serve as state chairs for the American Legislative Exchange Council, a corporate-funded nonprofit through which industry lobbyists and state lawmakers spread business-friendly model legislation to statehouses.
Daniels is one of the Oklahoma Senate’s top recipients of oil industry campaign contribution dollars; Lepak has received thousands in campaign contributions from the Petroleum Alliance of Oklahoma, an industry group, as well as money from Devon and Continental.
In October, with industry figures and their allies in place, the commission unveiled “One Oklahoma”: its blueprint for a post-McGirt future.
“Oklahoma’s founding fathers knew that only by fully integrating all Oklahomans — Native American and non-Native American alike — into their new state and its government would the word ‘sovereignty’ have meaning,” the One Oklahoma plan stated. “At stake is whether we will continue to be One Oklahoma, or whether we will take steps backward, toward two parallel societies.”
The document asserted that rules and regulations should be applied consistently to all Oklahomans, “regardless of race, gender, or affiliation.” In his speech introducing the plan, Nichols, the commission chair and fracking CEO, suggested that Oklahoma risks reverting to racial segregation if tribes define distinct regulations for their lands. Yet tribal nations do not represent racial groups; they represent governmental and political entities.
Tribal leaders quickly pointed out that One Oklahoma ignores much of Oklahoma’s true history.
“Statehood happened on top of us, without our consent, because we were not considered citizens of the United States at that time,” said Casey Camp Horinek, the environmental ambassador of Oklahoma’s Ponca Nation, which has also been impacted by the industry’s post-McGirt maneuvering.
In the view of the Stitt administration, however, things should stay the way they were when the reservations were being ignored. Ryan Leonard, Stitt’s lead negotiator for the state on matters related to McGirt, told The Intercept that ruling should only impact criminal jurisdiction on the Muscogee (Creek) reservation — not any other civil matters, including regulatory or tax policies. Leonard said the administration would like to keep the situation “as close to the status quo as possible, while recognizing that the tribes may have some interests, whether it be with drug courts or mental health courts.”
Asked why, despite the focus on criminal jurisdiction, seven of 10 members of Stitt’s commission were from the oil and gas industry, Leonard claimed that many industries in the state were concerned, and oil and gas industry representation on the commission was only natural.
“The oil and gas industry in Oklahoma is our largest industry, so obviously oil and gas industry was represented on that commission,” Leonard said. “Tribal leaders played a very active role in the commission process, and tribal views were very much considered in the formation of the commission’s report.”
“I think what industry doesn’t want to do is actually engage with Indian Country. They don’t treat tribes like nations.”
However, Muscogee (Creek) Principal Chief David Hill said in an interview with The Intercept that besides an introductory meeting, the nation has had no formal discussions or consultation with Stitt’s commission.
As the commission convened, a diverse set of leaders from the Cherokee, Seminole, Choctaw, Muscogee (Creek), and Chickasaw nations laid the groundwork for a meticulous process involving tribal, state, and federal bodies to sort out post-McGirt governance within the newly recognized reservation borders. The commission, however, called for swift congressional action that could, in effect, steamroll that effort.
The commission and the governor remained vague about precisely what they hoped Congress would do. Seeking clarity, a reporter at the October news conference asked Stitt if he supported disestablishment, the congressional process of abrogating treaties and eliminating reservations entirely. It would be up to Congress, Stitt responded: “All the options are on the table.”
“I think what industry doesn’t want to do is actually engage with Indian Country,” said Alex Pearl, a professor at the University of Oklahoma College of Law and an enrolled member of the Chickasaw Nation. “They don’t treat tribes like nations.”
In December, the industry’s post-McGirt legislative hopes faltered. Oklahoma’s Republican-dominated congressional delegation declined to advance any measures without tribal buy-in. With President Joe Biden in office; Rep. Deb Haaland, D-N.M., set to become the first Native American secretary of the Interior Department; and Democrats controlling Congress, a congressional Hail Mary seems unlikely — though the governor’s office has not given up on the idea.
Now a high-stakes chess game is underway, one which the fossil fuel industry has spent the past two decades preparing for. As Camp Horinek put it, “This was something they anticipated.”
“One Nation”
A 1911 U.S. Department of the Interior advertisement offering “Indian Land for Sale,” signed by the interior secretary and commissioner of Indian Affairs.
Image: U.S. Department of the Interior
The animating idea behind One Oklahoma can be traced as far back as the late 19th century. The Dawes Commission, created by an 1887 law, carried out an assimilationist policy that allowed communally managed reservation land to be chopped up into individual parcels and then leased or sold by tribal members in a process known as allotment. The Dawes Commission coerced the Cherokee, Seminole, Choctaw, Muscogee (Creek), and Chickasaw Nations — the main five tribes whose sovereignty was reestablished by the McGirt ruling — to agree to allotment, claiming that it would transform struggling tribal members into prosperous American farmers. The true aim, though, was to give white settlers the opportunity to grab land.
Around the same time, prospectors discovered oil in Oklahoma. Landholding concerns were quickly formed to buy and lease plots from tribal residents. According to an amicus brief filed by historians as part of the McGirt case, “every member of the Dawes Commission and nearly every [Interior Department] official in Indian Territory held stock in one or more of these companies, and most were listed as officers and directors.” From there, an epidemic of fraudulent land transactions swept through the state, dispossessing Native allotment owners of land. This set of historical circumstances birthed Oklahoma’s oil and gas industry.
In 2002, the dynamics of this relationship between the energy business and tribes became apparent again, when industry operators formed an organization called One Nation. By then, after decades of organizing and struggle, tribes across the U.S. had regained significant political power. One Nation described itself as “the first and only advocacy-focused effort in Oklahoma and the U.S. created to ‘push back’ against the massive expansion of tribal authority and the various disruptions and inequities created by sovereignty-based policies.”
One Nation’s founding members included some of the same entities that would later fight McGirt: the Oklahoma Independent Petroleum Association, Oklahoma Farm Bureau, and the Oklahoma Petroleum Marketers Association. Its two co-founders, Mike Cantrell and Mickey Thompson, had deep ties to the oil and gas industry. They both worked for Harold Hamm — the commission appointee and Continental Resources owner — as well as other industry groups.
Indian Country fought back against One Nation, including with a satirical web site mocking the effort. But it wasn’t enough to stop a legislative sneak attack by business interests aiming to maintain their grip on Oklahoma.
Normally, the Environmental Protection Agency carries out environmental regulation on reservation land, unless a tribe applies to take over jurisdiction. In 2005, U.S. Sen. Jim Inhofe, R-Okla., who has accepted millions in oil and gas industry campaign dollars over his political career and is best known for his hard-line climate change denialism, slipped a midnight rider into a must-pass transportation budget bill. The provision carved out a special exemption for Oklahoma from the EPA’s jurisdiction, granting the state exclusive environmental regulation oversight on tribal land — and giving Oklahoma the power to override any requests by tribes to take over environmental regulation.
The move set up a political framework through which the energy industry could oppose Indigenous interests. The line of attack is one that appears frequently throughout tribal-U.S. relations going back to the Dawes Commission, said Kevin Bruyneel, a professor of politics at Babson College and author of the 2007 book, “The Third Space of Sovereignty: The Postcolonial Politics of U.S.–Indigenous Relations,” which chronicled the One Nation campaign.
“That language is itself settler colonial,” said Bruyneel, referring to the rhetoric of the One Nation and One Oklahoma efforts. “It’s saying that you’re not your own nation. You’re not your own people, you’re one of us, and you have to follow by our rules.”
Oklahoma Gov. Kevin Stitt talks with the media in Oklahoma City on Jan. 26, 2021.
Photo: Sue Ogrocki/AP
Fight for Oklahoma’s Future
To understand why the oil and gas industry is afraid of tribal nations controlling land, observers should look to the heart of the northern Great Plains, said Monte Mills, the director of the Margery Hunter Brown Indian Law Clinic at the University of Montana and an expert on natural resources and tribal sovereignty. There, at the Fort Berthold Reservation in North Dakota, the Mandan, Hidatsa, and Arikara Nation has taken varying stances on energy development.
“Fort Berthold is a pretty good example because it has gone back and forth,” Mills said. For years, the tribe was very pro-development. “Then, not too long thereafter, a grassroots political movement among tribal membership arose and said we need to be much more balanced in our approach.”
In a 2018 amicus brief to the Supreme Court, the Oklahoma Independent Petroleum Association further laid out why the industry finds such a diversity of views so threatening: a patchwork of regulations from tribes, states, and the federal government could take years to sort out. Oklahoma’s Republican leadership, with its revolving door between government and industry, seemed to agree.
Documents obtained through a public information request show a uniform sounding of the alarm by Oklahoma state agencies in the wake of the McGirt ruling. Among those kept in the loop over email was Adria Ground Berry, then policy counsel to Stitt. By October she’d left the administration to work for the Petroleum Alliance of Oklahoma — which merged the Oklahoma Independent Petroleum Association with the Oklahoma Oil and Gas Association — as one of its top lobbyists. Stitt was also advised at the time by his deputy chief of staff, Zachary Lee, formerly a senior lobbyist for the Petroleum Alliance.
Even Leonard, Stitt’s negotiator on McGirt, has oil and gas industry links. Leonard was a senior policy aide on natural resources and tribal relations for Don Nickles, the former oil and gas industry lobbyist who now serves on the Commission on Cooperative Sovereignty; Leonard authored a biography about his former boss just months before taking the job.
“People usually associate the term ‘oligarchy’ with Russia. But make no mistake, if ever there was a working model of ‘oligarchy,’ the state of Oklahoma is it.”
“The oil and gas industry is a great industry in Oklahoma. I’m proud to have worked with the oil and gas industry, as I’m proud to have worked with the tribes,” Leonard told The Intercept. “Oil and gas provides tremendous opportunity for our state, as do other industries.”
The connections illustrate Oklahoma’s state government tight ties to the industry, said Johnson Bridgwater, the director of the state’s Sierra Club.
“People usually associate the term ‘oligarchy’ with Russia,” Bridgwater told The Intercept. “But make no mistake, if ever there was a working model of ‘oligarchy,’ the state of Oklahoma is it.”
The connections, so far, have paid off in the post-McGirt chaos. Two days after he announced the formation of the Commission on Cooperative Sovereignty, the governor also activated Inhofe’s midnight rider from 2005. In October, the EPA affirmed that the state, rather than the EPA or tribes, would regulate environmental rules on tribal nations’ territories. Even Oklahoma tribes less directly impacted by the McGirt decision, such as the Ponca Nation, raised objections, arguing they were not meaningfully consulted.
Keeping Native nations out of power seemed to be part of the plan. Asked at the One Oklahoma press conference why the commission had no tribal representation, Stitt said, “I set this group up — the 10 folks we just introduced — to represent what the future looks like for the state of Oklahoma.”
Photo: Zuma Press/Alamy
Industry’s “Piecemeal” Legal Strategy
After Congress declined to take up legislation addressing McGirt, Oklahoma’s oil and gas industry took its fight to the courts. One of the central figures who has emerged is A.J. Ferate: one of the co-authors of the Oklahoma Independent Petroleum Association’s amicus brief, the general counsel of the state’s Republican Party, and the former public policy coordinator for Devon Energy. Ferate, though, is in court arguing for tribal control of oil and gas permitting — albeit doing so in the interests of an oil company.
In the case at hand, brought as a petition before the Oklahoma Supreme Court, Ferate argues that the state body that grants oil drilling permits — the Oklahoma Corporation Commission — no longer has the authority to do so on tribal land. That means that the company Calyx’s permits to drill on Muscogee (Creek) land should be void, opening the door for Ferate’s client, another oil and gas company called Canaan, to maintain a more dominant drilling posture in the region. (Ferate declined to comment for this story.)
Ferate hinted at the industry’s strategy at an August 11 webinar hosted by a conservative group, saying he believed the fight against McGirt could take 40 years or more to play out and that a “piecemeal” approach of gaining legal clarity, one issue at a time, would be necessary.
Pearl, the University of Oklahoma law professor, said the case over Canaan and Calyx could settle a big lingering question about whether tribes or the states will issue permits moving forward. The legal strategy, he said, was “the epitome of U.S. colonialism,” adding, “To use the sovereign existence of the tribal nation to further the [interests of the] oil and gas industry is the history of the West.”
The piecemeal approach, though, isn’t playing out at a sluggish pace. A number of ongoing court cases over both fossil fuels and other issues, one of which Ferate himself is litigating, could help determine the guardrails around the post-McGirt landscape.
Tribal Nations Newfound Capacity
At Stitt’s State of the State address on February 1, he reiterated the One Oklahoma message, calling the McGirt case “the most pressing issue” ahead for the state.
“Where we go from here will define the state’s future,” he said. “We have a shared responsibility to live as one Oklahoma regardless of your race or where you live.”
Leonard, Stitt’s McGirt negotiator, said the industry-dominated Commission on Cooperative Sovereignty has not been involved in substantive negotiations with the tribes since it issued the One Oklahoma report and that, separately, the governor’s administration has made extensive efforts to consult with tribes.
“The state has an open-door policy. We are in very active conversations and dialogue with all of the tribes who are willing to talk to the state,” he said, noting that Stitt has met with Muscogee (Creek) Principal Chief David Hill twice in the past month. “This idea that the state is not engaged is wrong.”
Leonard said only the Chickasaw and Cherokee nations have expressed interest in compacting with the state on criminal jurisdiction and no tribes have agreed to talk about compacts on civil jurisdiction.
“What’s best for the Muscogee (Creek) Nation is what’s best for Oklahoma. To work with the state is by far our goal.”
Hill told The Intercept that his nation does not seek to work at odds with oil and gas industry or the state. “What’s best for the Muscogee (Creek) Nation is what’s best for Oklahoma,” Hill said. “To work with the state is by far our goal.” Yet Hill said he has often learned about the state’s latest approach to McGirt through the news.
As for federal legislation on compacts, the Muscogee (Creek), Seminole, and Choctaw nations have maintained that it’s not necessary, As the Muscogee (Creek) nation put it in an October statement, “The historical record shows that tribes that have voluntarily relinquished their authority have found themselves trapped and unable to ever recover their sovereignty.”
Hill’s administration set up its own commission to plan for the post-McGirt future, and other tribes have done the same. The Muscogee (Creek)’s commission is examining how to handle violence against Native women, how to redefine jurisdiction for cases where Indigenous children are removed from their homes, and how to uphold traditional values while also promoting economic growth.
“Tribal governments, especially tribal governments in Oklahoma — they are in a different position than they ever have been,” Mills, the University of Montana professor, said. He noted that for much of U.S. history, federal policy centered around overpowering tribes to gain access to natural resources.
“At times in that history, tribal governments have been so decimated by various factors that they haven’t been in a position where they can demonstrate capacity,” Mills said. “That is no longer the case.”
Steve Horn contributed research to this story.
The post Inside the Oil Industry’s Fight to Roll Back Tribal Sovereignty After Supreme Court Decision appeared first on The Intercept.
