There are recent tribal changes in the state of Oklahoma that could impact environmental and historic preservation reviews and municipal planning. Below is a summary of the changes and potential impacts.
Supreme Court Rules Muscogee (Creek) Nation was Never Disestablished
The United States Supreme Court recently ruled on the McGirt v. Oklahoma that the reservation set aside for the Muscogee (Creek) Nation in a portion of the eastern half of what is now the State of Oklahoma had never been disestablished.
The court determined that only an act of congress could dissolve the sovereignty of the tribal lands set aside by the United States government.
The focus of the court’s ruling narrowed in on impacts to the criminal justice system. However, the dissenting opinion warned of potential impacts to environmental/historic preservation reviews and municipal planning.
What that means for Section 106 Tribal Consultation Practices
Federal-level telecom environmental compliance practice is guided by the Federal Communication Commission’s (FCC) environmental rules and nationwide programmatic agreements (NPA). The FCC’s NPAs do not apply on Tribal Lands. Therefore, the determination that the Muscogee (Creek) reservation has not been disestablished effects the environmental review process– specifically the Section 106 consultation process (which includes Tribal Consultation), within the historic boundaries of the reservation.
When a project is located within the exterior boundaries of tribal lands, the environmental review process and Section 106 is conducted in consultation with that tribe, and if the lands are held in trust by the Bureau of Indian Affairs (BIA) then that agency is also involved in the process. Therefore, we could see an expansion of tribal authority into areas, where in more recent history, state or local governments have handled those duties.
FAQ
The Muscogee Creek Nation has issued the FAQ (pasted in below) regarding the Supreme Court’s ruling. Currently the Tribe’s focus is working with state and federal law enforcement to resolve the criminal conviction issues that are a result of the ruling. They have also specifically addressed concerns regarding property ownership.
Frequently Asked Questions
- What does the McGirt/Murphy ruling mean for the Muscogee (Creek) Nation?
The Supreme Court Ruled that Congress created a reservation with the Muscogee (Creek) Nation through multiple treaties and never disestablished that reservation. - Does this ruling change the boundaries of the state of Oklahoma?
Oklahoma’s boundaries are not changed by today’s ruling. The Muscogee (Creek) treaty territory remains part of Oklahoma. - Are we still considered citizens of Oklahoma?
Yes, everyone living within the boundaries of those treaty territories, Indian and non-Indian, remains a citizen of Oklahoma. - What does this decision mean for non-Natives and property ownership if they live within the boundaries of the Muscogee (Creek) Nation (or other Tribal Nations)?
Today’s decision does not affect anyone’s property ownership. All existing contracts, leases and title to property remains as they were before today’s Supreme Court ruling. - Who will prosecute crimes that occur within the Muscogee (Creek) Nation?
Generally, any Indian, not just Muscogee (Creek) citizens, can be subject to criminal prosecution by the Creek Nation or the Federal Government for any crime occurring anywhere within the Reservation boundaries. The State will be able to prosecute crimes where both the offender and victim are non-Indian and where the crime occurs anywhere within the Reservation boundaries, not just on land owned by the Tribe or Tribal citizen. - Does this ruling place convictions in questions and will Indian people who are in State prison be automatically released?
No, individuals in prison will not be automatically released. In fact, this ruling will impact few convictions. Any person whose conviction might be affected will either remain in prison or face re-prosecution and re-incarceration by tribal or federal authorities. Any challenges to convictions will be evaluated on the merits. Please remember there are many other laws that could prevent a state prisoner from being retried. - Will this ruling change any existing agreements between the Muscogee (Creek) Nation and the State of Oklahoma?
All existing agreements between the Muscogee (Creek) Nation and the State will remain in effect.
How Crime Will Be Affected
| Native on Native Crime | Tribal for misdemeanors and/or Federal Court for Major crimes, felonies, and misdemeanors |
| Native on Non-Native Crime | Federal court for Major crimes, felonies and misdemeanors may also be tribal |
| Non-Native on Non-Native Crime | State courts for felonies and misdemeanors and/or Federal Court for some felonies |
| Non-Native on Native Crime | Federal Court |
| Native Victimless Crime | Tribal or Federal Courts |
| Non-Native Victimless Crime | State and Federal Courts (no change) |
Additionally, the Tribal Nation issued the following statement in the Cherokee Phoenix: “The Nations and the State are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws, and regulations that support public safety, our economy, and private property rights.”
Impacts to FCC Environmental Review Process
The wireless telecommunications industry will likely have concerns relative to the potential impacts to the environmental and Section 106 consultation process. The FCC (or consultants) will need to work with the Tribe to understand how the Tribe wishes to manage those reviews since the FCC has repeatedly held that Indian Tribes “exercise inherent sovereign powers over their members and territory.” (2002 Collocation Fact Sheet, Section 8)
The consequences of the Court’s decision on the environmental review process for the telecommunications industry is not entirely clear at this time. Continued attention to guidance from the FCC and the Tribal Leadership will be important as the consequences of the ruling continue to be worked out.
EBI is dedicated to supporting and advising our clients. We will continue to be at the forefront of sharing information with you. Please contact us if you have any questions or for more information on EBI’s national telecommunications services.
