Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond

31 Pages Posted: 28 Aug 2020 Last revised: 3 Sep 2020

See all articles by Elizabeth Ann Kronk Warner

Elizabeth Ann Kronk Warner

University of Utah - S.J. Quinney College of Law

Heather Tanana

S.J. Quinney College of Law; Center for American Indian Health

Date Written: August 25, 2020

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. Yet, following release of the Court’s decision, the outcry from the oil and gas industry was almost instantaneous, as roughly twenty five percent of Oklahoma’s oil and gas well and sixty percent of its oil refineries are impacted by the Court’s decision. Additionally, 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 was clear that its holding was limited to criminal jurisdiction under the Major Crimes Act, the decision nonetheless has broader implications for Indian country, including natural resource development and regulatory framework. Because the oil and gas industry will now have to work with tribes and the federal government instead of favorable state officials, industry officials decry the Court’s decision as being detrimental to the industry. But what exactly will be the impact of the Court’s McGirt decision on the oil and gas industry, and the 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 future impacts of the McGirt decision on traditional energy development. The second Part of the article summarizes the legal background that governs oil and gas development in Indian country. Part three 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.

Keywords: Indian country, natural resource development, McGirt decision

Suggested Citation

Kronk Warner, Elizabeth Ann and Tanana, Heather, Indian Country Post McGirt: Implications for Traditional Energy Development and Beyond (August 25, 2020). University of Utah College of Law Research Paper No. 379, Available at SSRN: https://ssrn.com/abstract=3680658 or http://dx.doi.org/10.2139/ssrn.3680658

Elizabeth Ann Kronk Warner (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Heather Tanana

S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Center for American Indian Health

615 North Wolfe Street
Baltimore, MD 21205
United States

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