Ed. Note: Shortly after this story was published, the EPA sent the following statement to TYT: "EPA’s Region 6 Office confirms that an SAFETEA consultation invitation letter was sent to Ponca Chairman Oliver Littlecook and Environmental Director Vivian Billy on August 25, via email. The letter was also sent out on September 1 to all Region 6 tribal environmental directors as part of the monthly tribal call. The letter was also placed on TCOTS."
TCOTS is the EPA's website for posting tribal consulting opportunities, but the EPA has yet to say whether the general public was ever informed. TYT could not immediately confirm how many tribes received the EPA's Sept. 1 letter or Aug. 25 email. The Ponca tribe told TYT they were searching their emails but as of Friday night had not located it. As the story notes, Oklahoma business leaders were first apprised of the EPA's pending decision on Native American sovereignty issues at least as early as July 22 and Gov. Kevin Stitt (R-OK) discussed it privately with agricultural business leaders on Aug. 3.
The Trump administration’s top environmental official has set a Monday deadline for Oklahoma tribes to weigh in on a proposal that could let the state dump hazardous waste -- including everything from mercury to cancer-causing PCBs -- on tribal lands, but at least one tribe told TYT on Friday that they hadn’t been notified.
The Environmental Protection Agency (EPA) did not immediately respond when asked to provide evidence that it had publicized or notified any Oklahoma tribes about the deadline.
The proposal came from Gov. Kevin Stitt (R-OK) in a July 22 letter that Stitt never made public, but apparently shared with one oil-industry group, which posted the letter online. Neither Stitt nor the EPA disputed the letter’s authenticity. TYT first reported Stitt’s request last month.
At the time, it appeared that Stitt was seeking to sidestep the Supreme Court’s landmark July 9 ruling giving tribes sovereignty over eastern Oklahoma. But Stitt’s July 22 letter goes further, and would give him regulatory control over environmental issues on virtually all tribal lands anywhere in the state.
The example of hazardous-waste dumping came from a former high-level EPA official who was shown the letter and asked by TYT to interpret Stitt’s legislative and regulatory wish list.
Stitt’s request drew condemnation from Native American and environmental groups. One tribal spokesperson said in a statement to TYT that Stitt's request is “not just another attack on Tribal Nations… it violates common sense.”
The letter appears to confirm TYT’s report last month that Stitt revealed privately that he had asked EPA Administrator Andrew Wheeler to give Oklahoma jurisdiction over environmental regulations on its Native American reservations. The legal maneuvering was triggered by the Supreme Court’s July 9 ruling in McGirt v. Oklahoma.
The regulatory powers Stitt has requested would give him wide latitude to appease Oklahoma business interests, including fossil fuels, a multi-billion dollar industry which gave him $239,102 in the previous election cycle.
When asked whether it had received Stitt’s letter, the EPA responded by stating only that it would consult with Tribes, saying: “EPA’s Region 6 Office, with participation from EPA’s American Indian Environmental Office, is leading consultations with all of the Oklahoma Tribes that asked to meet with EPA about the State’s request …Interested parties may submit comments by September 21, 2020. EPA will consider input from the Tribes in responding to Oklahoma’s request.”
It was not immediately clear how many tribes, if any, even knew about the state's request, let alone asked to meet with the EPA about it.
Casey Camp-Horinek, environmental ambassador and elder and hereditary drum keeper of Oklahoma’s Ponca Tribe, told TYT that her tribe has not been contacted. She said, “Consent by consensus is our traditional governmental process. According to the United Nations’ Declaration on rights of indigenous people, which the United States signed onto, our tribe should be receiving free, prior and informed consent. Consultation has not been actively pursued.“
Stitt pledged publicly to work with the tribes to sort out the implications of the McGirt ruling. But as TYT reported last month, he told an agricultural industry group on Aug. 3 that he had already asked the EPA to give his state jurisdiction over environmental regulations on Native American reservations. The move could destroy opportunities for tribal leaders to reduce pollution and fossil fuel dependency.
That may explain why the Petroleum Alliance of Oklahoma, which posted Governor Stitt's letter, applauded his request for regulatory control over Tribal land within Oklahoma borders. “This action was absolutely critical to provide regulatory certainty for businesses, farmers, ranchers, landowners and every state resident in the aftermath of the U.S. Supreme Court’s ruling in McGirt v. Oklahoma,” the group’s website said.
The statement was posted the same day Stitt’s letter is dated -- July 22, 2020. The letter is addressed to Wheeler.
In the first paragraph, Stitt says “the State of Oklahoma requests approval to administer all U.S. Environmental Protection Agency ('EPA') approved environmental programs in areas of the State that are in Indian Country…”
EXPERT ANALYSIS OF STITT LETTER TO EPA
To understand clearly what the state of Oklahoma is seeking, TYT asked the former high-ranking official in the EPA’s office of general counsel to review the letter. The former official told TYT:
“The first paragraph of Governor Stitt’s letter seeks authority from the EPA under the 2005 rider in SAFETEA (Safe Accountable, Flexible, Efficient, Transportation Equity Act) to take over all environmental regulations on all Tribal reservations in the State. This applies to all environmental regulations including those for oil, gas and coal.”
That federal law giving Oklahoma the right to take over environmental regulations on Tribal land is a mere two-paragraph rider on page 795 of the 836-page SAFETEA transportation bill. The short, midnight rider was maneuvered into this massive transportation bill by Sen. James Inhofe (R-OK). Inhofe is a staunch fossil fuel advocate and climate change denier.
Wheeler, the EPA administrator who will make the decision on Stitt’s request, worked for Inhofe for 14 years. When Wheeler was nominated in 2018, Inhofe issued a statement saying, “I have confidence he will continue to advance a deregulatory agenda that protects the environment without placing needless burdens on job creators.”
During the Trump administration, the EPA has rescinded some 100 regulations governing vehicle and power plant exhaust, mercury and carbon tetrachloride poisoning, water and air pollution, and drilling on federal lands and waters.
The former EPA official who reviewed the Stitt letter for TYT added:
“Oklahoma already had jurisdiction to implement some (or all?) of the programs identified in the Stitt letter in non-reservation Indian country; so it is now seeking authority to do so on reservation land in Indian country.”
STITT LETTER SEEKS DUMPING ON TRIBAL LAND
The former EPA official went on to point out a dangerous possibility:
“The second paragraph seeks to place the Oklahoma Dept of Environmental Quality...in charge of regulating disposal of anything on tribal land. Under the “Subpart C hazardous waste program” the state could issue permits to take any hazardous waste including mercury, PCBs even from other states and dump it on Indian land.”
That same paragraph of Stitt’s letter also includes regulations of the coal industry. One Oklahoma Tribe’s response was unequivocal about this portion and Stitt’s entire letter to the EPA.
In a statement to TYT, Camp-Horinek of the Ponca Tribe said:
"Oklahoma's elected officials, Governor Stitt, Senators Inhofe and [James] Lankford, have always acted on behalf of the fossil fuel industries. They continue to attempt to undermine Tribal sovereignty and to jeopardize the health of all living beings in Oklahoma. They have proven that huge campaign donations are guiding their decisions, not how the consequences of poisoning the water, air and earth will affect the citizens of Oklahoma. They need to be voted out of office before their greed and shortsightedness kills the future of all generations to come. This is not just another attack on Tribal Nations and the Rights of Nature, it violates common sense. "
FRACKING AND CATTLE
The former EPA official noted that, “On page 2 “Underground Injection Control” refers to an EPA program used to permit fracking.” Fracking uses large amounts of high-pressured water to remove oil and gas from shale rock. It often leaves behind contaminated water and toxic pollution.
The former official said the letter’s third page was directed at protecting large agricultural polluters, saying that it “aids industrial-sized livestock operations, most often dairy cows, hogs or chickens. These mega farms produce enormous amounts of waste. The Sierra Club estimates that “the quantity of urine and feces from even the smallest CAFO [Concentrated Animal Feeding Operation] is equivalent to the urine and feces produced by 16,000 humans.”
The environmental activist organization 350.org told TYT that it is concerned about both tribal sovereignty and the environmental impact of a state takeover.
In a statement, 350.org Head of U.S. Communications Thanu Yakupitiyage said:
"350 stands with our Indigenous partners and allies in upholding Indigenous sovereignty. The state of Oklahoma must follow the lead of Indigenous stewards of the land who have lived on their lands for generations. This summer, the Supreme Court of the United States ruled that half of the land in Oklahoma is on Native territory … In accordance with this, Indigenous communities must have environmental sovereignty. Furthermore, the EPA could learn a thing or two from how Indigenous tribes protect the land and honor the earth."
As the former EPA official put it, “The State (Oklahoma) is not overstepping. It is asking for what the 2005 Rider provided. It gives all environmental regulatory control to Oklahoma without the cooperation of the Tribes. The Tribes, though, uniquely in Oklahoma, must get state cooperation if they wished to run environmental programs on Tribal lands.”
Many Native American Tribes and organizations have expressed concern that Inhofe will try to sneak in another midnight rider to give all regulatory control of tribal lands -- not just environmental -- to the state of Oklahoma, a state whose very name comes from the Choctaw words Okla and humma. Roughly translated -- Honored Nation.