Professor: U.S. Supreme Court's ruling affects the water future that is vital to Oklahoma City
Eastern Oklahoma's water resources are vital to Oklahoma City's prospects for growth and prosperity.
The city is investing more than $1 billion in a second pipeline and related infrastructure to expand access to its southeastern Oklahoma water.
Last week, in a ruling that could have far-reaching effects, the U.S. Supreme Court ruled Congress never disestablished the Muscogee (Creek) Indian reservation in eastern Oklahoma.
While it focuses primarily on criminal law, could the ruling be broad enough to cover water resources management?
University of Oklahoma College of Law Professor Emeritus Drew Kershen says, "The short answer is 'yes."
Kershen is a water law expert and often speaks at CLE International's annual Oklahoma Water Law conference. Here is his analysis:
"The three opinions-- the Justice Gorsuch majority, the Chief Justice Roberts dissent, and the Justice Thomas solo dissent – focus on criminal jurisdiction and the federal Major Crimes Act because both cases (McGirt v. Oklahoma and Sharp v. Murphy) involve Oklahoma criminal convictions. The Supreme Court reversed both convictions by ruling that the Creek Nation has a reservation that still exists in accordance with boundaries established in the 1866 Reconstruction Treaty between the United States and the Creek Nation. As a consequence of the existence of the Reservation, the Federal Government has the exclusive jurisdiction to prosecute these criminal charges. Oklahoma lacks jurisdiction and, therefore, the prior convictions are void. The Federal Government must now decide about how to move forward with these criminal charges.
"But in both the Gorsuch opinion (pp. 39-42) and the Roberts opinion (pp. 35-37), the Justices are in agreement that the impact of the ruling (that the Creek Nation 1866 Reservation still exists) will extend beyond criminal jurisdiction to civil and regulatory jurisdiction in matters involving, among others, taxation, the environment, water, natural resources, zoning. Both agree that the ruling in McGirt v. Oklahoma expands the sovereignty of the Creek Nation. Of course, their evaluations of that expansion differ. Justice Gorsuch is optimistic and does not presume or predict dire consequences. Justice Gorsuch wrote, “With the passage of time, Oklahoma and its Tribes have proven they can work successfully together as partners.” (p. 41). By contrast, Justice Roberts wrote, “Beyond the criminal law, the decision may destabilize the governance of vast swathes of Oklahoma.” (p. 35) And again, Justice Roberts wrote, “In addition to undermining state authority, reservation status adds an additional complicated layer of governance over the massive territory here, conferring on tribal government power over numerous areas of life – including powers over non-Indian citizens and businesses.” (p.36). To these concerns expressed by Justice Roberts, Justice Gorsuch replies, “Congress remains free to supplement its statutory directions about the lands in question at any time. It has no shortage of tools at its disposal.” (p. 42).
"Although the McGirt case involves only the Creek Nation Reservation of 1866, the Justices (and all other informed commentators) recognize that the history and treaties and statutes applicable to the Creek Nation have close parallels for the Cherokee Nation, Chickasaw Nation, Choctaw Nation, and the Seminole Nation. In other words, the 1866 Reconstruction Reservations of the Cherokee, Chickasaw, Choctaw, and Seminole Nations also continue to exist, with only miniscule doubt as to that legal result. As a consequence, Eastern Oklahoma has significantly become Indian Territory as it existed prior to 1907 Oklahoma statehood. Eastern Oklahoma now has three sovereigns: United States of America, the Tribes in their reservations (and accompanying federal supremacy for Treaties and federal laws relating to tribes and their tribal citizens), and the State of Oklahoma.
"As for the other thirty-four federal tribes in Oklahoma, do these tribes also have reservations? On this question of additional reservations, the legal answer at present is uncertain. Tribes will almost assuredly argue for “yes” and the State will almost assuredly argue for “no.” But the treaties, statutes, and court opinions relating to each of these tribes will have to be studied individually and carefully and a court decision rendered before anyone will know the legal answer. Justice Gorsuch did cite the Ponca and Otoe Tribes as having had their reservation disestablished by Congress in a statute in 1904. (p. 12) And the Tenth Circuit opinion in Murphy also goes through a lengthy list of cases about western Oklahoma tribes and concludes that these Oklahoma tribes no longer have a reservation. Thus, although uncertainty exists about the legal answer, it appears that Congress has disestablished the reservations in the Oklahoma Territory portion of the State of Oklahoma. If what I have just said is ultimately adjudged as a correct understanding, then the State of Oklahoma has been returned, in many ways, to Indian Territory in the east and Oklahoma Territory in the west.
"And finally, to return to your question specifically about water: The McGirt opinion does apply to water. Thus, if eastern Oklahoma is now either a Cherokee, Chickasaw, Choctaw, Creek, or Seminole Reservation, then these sovereign nations will have sovereign power over water while, at the same time and place, the United States and the State of Oklahoma will also have sovereign power over water. What might that tripartite sovereignty look like for water? One possible answer – but not the only possible answer – is found in the Water Settlement Agreement of 2016 entered into by the Choctaw Nation, the Chickasaw Nation, the State of Oklahoma, and the City of Oklahoma City. Congress passed this Water Settlement Agreement of 2016 into federal law in December 2016. Under this Water Settlement Agreement, the agreeing parties granted the administrative and statutory authority over water in southeastern Oklahoma to the State of Oklahoma. In return, the State of Oklahoma agreed that the Choctaw Nation and the Chickasaw Nation had specified preferential rights to water and water management protections, including mandatory consultations about water rights and water management between the State and the Nations. The McGirt ruling does not undermine the Water Settlement Agreement of 2016 in any way. In fact, the Water Settlement Agreement of 2016 appears to be an example of partnership between the State and the Nations that Justice Gorsuch praises (without, of course, actually mentioning the Water Settlement Agreement of 2016). But the Water Settlement Agreement, as enacted into law, has an express provision that its terms are binding on only the agreeing parties and has no precedential value for other Tribal Nations. Thus, the tripartite sovereignty over water in eastern Oklahoma (on Cherokee, Creek and Seminole Reservations) is yet to be resolved.
"To end my comments, the impact of this decision will be very broad and affect every aspect of legal and political life in eastern Oklahoma with almost every legal question unresolved and uncertain. Yes, McGirt and Murphy are now citizens presumed to be innocent of alleged crimes until proven guilty in a federal court of law. Yes, the Creek Nation 1866 Reconstruction Treaty Reservation exists. Beyond those two statements all else is unknown."