Letter: Your demand appears to have no adequate basis in law
OKLAHOMA CITY – Attorney General Mike Hunter today sharply rebuked Pres. Joe Biden’s Interior Department’s Office of Surface Mining Reclamation and Enforcement for its attempted takeover of regulating coal mining and reclamation activities on land in Oklahoma subject to the McGirt decision.
The response comes after the agency’s deputy director, Glenda Owens, sent letters to the Oklahoma Conservation Commission and the state Secretary of Energy and Environment saying the U.S. Supreme Court ruling in McGirt v. Oklahoma stripped the state of authority to regulate surface coal mining and reclamation operations on lands now considered the Muscogee (Creek) Reservation. The agency demanded that Oklahoma officials surrender their authority and records to federal officials within 30 days.
Attorney General Hunter said the Interior Department is ignoring relevant law.
“I am advising that no state agency comply with this ill-advised power grab by the Biden administration,” Attorney General Hunter said. “Courts ruled a long time ago that reservation lands are not categorically exempt from state jurisdiction for all purposes. The McGirt ruling was about criminal jurisdiction, not all state regulations of industries. Further, we have supervised mines and reclamation operations in Oklahoma for decades and there is no legal basis for us to stop this practice now.”
The letter says only Congress has the authority to change the regulatory authority on reservation lands from the state to the federal government. Even then, Congress faces limits in repealing a state’s civil jurisdiction over non-Native Americans on reservation land.
The attorney general continues, the Interior Department is relying on false assumptions that states lack civil jurisdiction over reservation lands without federal approval.
“You write about whether your agency ‘granted a State regulatory authority over Indian lands within its boundaries’ or whether your agency has ‘authority to confer on the State of Oklahoma jurisdiction’ over Indian lands,” the attorney general writes. “Both statements reflect an incorrect understanding of state jurisdiction. Absent a statute stripping the state of jurisdiction, Oklahoma has inherent authority on the Creek reservation regardless of the actions of your agency.”
Concluding the letter, Attorney General Hunter tells the Interior Department that because the demands from the agency have no adequate basis in law, he is advising state agencies to take no action.