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  • November 17, 2020

    Environmental Regulation after U.S. Supreme Court's McGirt Decision

    This summer, the U.S. Supreme Court decided a criminal case that could have ripple effects in many other areas of practice, including environmental law. Robert Lundberg discusses McGirt v. Oklahoma and why it is relevant for environmental practitioners.

    Robert Lundberg

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    The U.S. Supreme Court’s decision this July in McGirt v. Oklahoma1 has been hailed as one of the Court’s most important Indian law opinions in the past half-century.

    While the question presented in the case was limited to whether the State of Oklahoma properly exercised criminal jurisdiction in prosecuting McGirt, even before the decision came down, many were declaring the potentially far-reaching repercussions of the case.

    The Decision

    The McGirt decision both was and was not a watershed moment in Indian law.

    Robert Lundberg Robert Lundberg, U.W. 2019, is an attorney and Equal Justice Works Fellow, sponsored by the Brico Fund, with Midwest Environmental Advocates in Madison, where he practices in water issues and federal Indian law.

    On one hand, the case affirmed the full extent of the Muscogee (Creek) Nation’s 1866 reservation. The state of Oklahoma had, since its founding, acted as though the Creek reservation was significantly smaller, by exercising jurisdiction over lands no longer directly held by the Nation or its members, but within the reservation boundary. People living in those lands, including many residents of Tulsa, did not think they lived within the bounds of an extant reservation.

    However, the majority in McGirt affirmed that the Creek reservation, as laid out in an 1866 treaty between the Tribe and the U.S., persists today. This means that parts of 11 counties in Oklahoma are Indian Country, and the Creek and federal governments properly have criminal jurisdiction over tribal members within the reservation.

    On the other hand, while the McGirt decision has been frequently framed as a radical shift in jurisdiction by media outlets and by Oklahoma in its briefs, the case marks a return to some of the bedrock rules of Supreme Court Indian law jurisprudence.

    The decision reaffirms the longstanding principles that:

    • Congress, not states or courts, has the power to regulate relations “with the Indian Tribes;”2 and

    • Congress cannot abrogate a right previously recognized and guaranteed to a Tribe (such as a land reservation) unless it makes clear its intent to do so.

    While Justice Gorsuch, writing for the majority, provides perhaps a new textualist articulation, the decision follows principles articulated in Supreme Court precedent for many decades.

    Implications for Environmental Regulation

    This decision is important for two reasons in the context of environmental law in Wisconsin – where 12 federally recognized Tribes3 have reservations and/or trust lands, many of whom already have environmental regulations in place.

    McGirt was a criminal case. But its pronouncement about reservations is equally important to civil regulatory jurisdiction, because that jurisdiction is, in large part, limited by the geographic boundaries of a reservation. Further, McGirt reaffirms methods for interpreting treaties and statutes relating to Tribes that apply equally to questions of civil jurisdiction, including environmental regulation.

    The First Reason: Definitions of ‘Indian Country’

    Tribes as well as the U.S. government hold the authority to regulate environmental issues within reservations and trust lands. States generally cannot regulate environmental issues within these territories. Tribal environmental regulatory authority is rooted in inherent sovereignty4 and, in some situations, delegated federal authority.5

    McGirt is also important in the environmental law context, because the definition of “Indian country” in the federal criminal statute implicated in the case is also incorporated into many federal environmental laws. Justice Gorsuch noted that “many federal civil laws and regulations do currently borrow from § 1151 [a federal criminal statute] when defining the scope of Indian Country.”6

    So it is as important for the Clean Water Act as it is for the Major Crimes Act that “Indian Country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent.”7

    Law professors Elizabeth Kronk Warner and Heather Tanana suggest that the McGirt decision means that regulated entities within newly reaffirmed reservations could have “significantly more interaction with tribal environmental law and federal law that incorporates tribal preferences through the [Treatment as a State] framework.”8

    McGirt has the potential to directly impact environmental regulatory jurisdiction where the extent or even existence of a reservation is questioned. In fact, in July, the U.S. Court of Appeals for the Seventh Circuit issued an opinion, in Oneida Nation v. Village of Hobart,9 relying in part on McGirt, to find that the Oneida Nation reservation in northeast Wisconsin has not been diminished, and thus the Nation is not subject to municipal regulation by a town wholly within the borders of the reservation.

    This case did not deal with environmental regulations, but did address noncriminal regulatory jurisdiction. The question at issue was whether the Village of Hobart, situated within the reservation, could require the Nation to obtain a village permit to hold a festival on lands the Nation owns within both the village and reservation.

    In finding Hobart could not require Oneida Nation to get a permit, the Seventh Circuit affirmed the full extent of Oneida’s reservation under both the previous Supreme Court test articulated in Solem v. Bartlett and the rearticulation of that test in McGirt. The Wisconsin Legislative Reference Bureau published a memo last month highlighting, along with the Oneida reservation, the Stockbridge-Munsee reservation in Wisconsin as another instance where previous legal decisions finding reservation diminishment could be upended by the reasoning of McGirt.

    Second Reason: Federal Indian Law Principles Are Reaffirmed

    McGirt may seem irrelevant to other reservations and trust lands in Wisconsin, where Tribes are under less threat of challenges to their authority to set or enforce environmental standards because of diminishment or disestablishment of a reservation.

    However, as alluded to above, the decision also strongly reaffirms bedrock principles of federal Indian law:

    • that Congress alone can abrogate a tribal right;

    • that any Congressional abrogation must be clear and unambiguous; and

    • that “treaty rights are to be construed in favor, not against, tribal rights.”10

    These basic principles are not limited to a dispute over reservation boundaries. They are equally applicable to a dispute over treaty-reserved rights, the extent of a Tribe’s ability to exercise delegated federal environmental authority, or a Tribe’s inherent authority to regulate its environment for “the health and welfare of the tribe.”11

    Conclusion: A New Trend?

    Given the recent change in Supreme Court membership, it remains to be seen if McGirt marks a new trend in the Court’s Indian law jurisprudence.

    Regardless, we are already seeing the effects of the decision on lower courts, such as the Seventh Circuit, and in jurisdictional negotiations between Tribes and the state of Oklahoma. These ripple effects are likely to continue in criminal law, environmental law, and any other area where disputes arise over which sovereign does or does not have jurisdiction and the limits on the exercise of that jurisdiction.

    This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section web pages to learn more about the benefits of section membership.


    1 McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).

    2 Const. Art. 1 § 8, cl. 3.

    3 This includes the Fond du Lac Band of Lake Superior Chippewa, who are based in eastern Minnesota, but who hold trust lands in Douglas County, Wisconsin.

    4 See Montana v. United States, 450 U.S. 544, 566 (1981).

    5 See, for example, Treatment as a State provisions in § 301(d) of the Clean Air Act and the U.S. Environmental Protection Agency’s implementing regulations at 63 Fed. Reg. 7254 (Feb. 12, 1998) (codified at 40 C.F.R. part 49 and scattered sections of parts 9, 35, 50, and 81).

    6 McGirt v. Oklahoma, 140 S. Ct. 2452, 2480 (2020).

    7 18 U.S.C. § 1151 (emphasis added).

    8 Elizabeth Kronk Warner and Heather Tanana, “Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond,” University of Utah College of Law Research Paper No. 379.

    9 Onedia Nation v. Village of Hobart, 968 F.3d 664 (7th Cir. 2020).

    10 McGirt, 140 S. Ct. at 2470 (citing Solem v. Bartlett, 365 U.S. 463, 472 (1984)).

    11 Montana, 450 U.S. at 566.

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