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- Title
INDIAN COUNTRY POST-MCGIRT: IMPLICATIONS FOR TRADITIONAL ENERGY DEVELOPMENT AND BEYOND.
- Authors
Warner, Elizabeth Kronk; Tanana, Heather
- Abstract
The decision in McGirt v. Oklahoma is being heralded as the most important Indian law decision of the last 100 years, as it affirmed the reservation boundaries of the Muscogee (Creek) Reservation--an area long considered by many to be under Oklahoma's jurisdiction. Following release of the U.S. Supreme Court's decision, the outcry from the oil and gas industry was almost instantaneous. Roughly twenty-five percent of Oklahoma's oil and gas wells and sixty percent of its oil refineries are located on land impacted by the Court's decision. The territory affected by the Court's decision also includes pipelines crucial to the successful operation of the nationwide Keystone XL pipeline. While the Court's holding addressed criminal jurisdiction under the Major Crimes Act, the decision has broader implications for Indian country, including natural resource development and the corresponding regulatory framework. Tribal communities generally have a special connection to their lands. Yet, they have historically suffered various inequities rooted in federal policies. Rich in natural resources, Indian country has been exploited at the expense of the local tribal community, raising issues of environmental injustice. By upholding treaty rights and obligations, the McGirt decision has the potential to further empower tribes in the protection of their lands and the important cultural values therein. Fearing that they will now have to work with tribes and the federal government instead of favorable state officials, oil and gas industry officials decry the Court's decision as being detrimental to the industry. But how exactly will the McGirt decision affect the oil and gas industry, and natural resources development in Indian country more broadly? While the full impacts of the Court's decision are only beginning to unfold, this Article seeks to answer the questions left hanging by the Court's decision as they relate to traditional energy development. This Article explores the impact of the McGirt decision on traditional energy development through an environmental justice lens. After a brief introduction, Part I of the Article summarizes the legal background that governs oil and gas development in Indian country. Part II provides an in-depth analysis of McGirt--first, describing its predecessor, Sharp v. Murphy, followed by an explanation of McGirt and its holding. The Article concludes by discussing future implications of McGirt, including what it means for oil and gas development going forward as well as collateral effects. The Article constitutes an important scholarly contribution as it answers important questions left open after the Court's decision and explains how the Court's decision has broader implications for Indian country and natural resource development generally.
- Subjects
ENERGY development; LEGAL judgments; ENERGY policy; UNITED States. Supreme Court; CRIMINAL jurisdiction
- Publication
Harvard Environmental Law Review, 2021, Vol 45, Issue 2, p249
- ISSN
0147-8257
- Publication type
Article