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Tribal sovereignty foe in charge of nation's environmental agenda

Monday, February 20, 2017

Justice Alito Participates in the Swearing-In of the Administr...
Join us LIVE as Supreme Court Justice Samuel Alito participates in the swearing-in of U.S. Environmental Protection Agency Administrator, Scott Pruitt.
Posted by The White House on Friday, February 17, 2017

The White House on Facebook: Justice Samuel Alito participates in the swearing-in of U.S. Environmental Protection Agency Administrator, Scott Pruitt

A Republican who has battled tribes on sovereignty and other issues is now in charge of the Environmental Protection Agency.

Scott Pruitt, Oklahoma's former attorney general, was sworn in as Administrator of the EPA on Friday afternoon. He was cleared for the post earlier in the day by the Senate in a party-line vote of 52 to 47. Just one Democrat supported his nomination.

"I look forward to working with the dedicated employees on our shared vision to protect our environment for future generations," Pruitt said in a message on Facebook after he was given the oath of office by Justice Samuel Alito of the U.S. Supreme Court.

But while Pruitt's official EPA biography touts his work on a tribal water rights settlement back in Oklahoma, tribal advocates say he has a bad track record when it comes to their issues. He's fought tribes on jurisdiction, immunity and taxation fronts, even going so far as to tell the Supreme Court that tribes lack authority over non-Indians.

"Scott Pruitt was the guy who filed a brief against us," John Dossett, the general counsel for National Congress of American Indians, said at the organization's winter session in Washington, D.C., last Tuesday, in reference to Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case that ended in a dramatic yet anti-climactic tie before the Supreme Court last year.

"Scott Pruitt does not have a strong record of working with tribes at all," Dossett said.

Environmental Working Group on YouTube: Correcting Scott Pruitt's Environmental Record - Casey Camp-Horinek

As the leader of the nation's environmental agenda for Republican President Donald Trump, Pruitt now has the power to put his anti-Indian views into action. The EPA has the ability to determine whether tribes can indeed exercise authority over non-Indians when it comes to air quality and water quality.

State officials have consistently fought tribal assumption of federal laws, commonly known as treatment as state (TAS) designations for years. Yet Pruitt declined to give his views on the matter when asked about the issue as part of his confirmation process.

Instead, he said "such matters would be within the purview of Oklahoma's environmental regulators, not the Office of Attorney of General," according to his on the record responses to a Senate committee.

At the same time, Pruitt said he would work with tribes on a government-to-government basis, although his answer came with a qualifier. "Whenever possible, I will consult with Indian Tribes prior to taking actions that may affect their sovereign interests," his response stated.

Pruitt, as Oklahoma's attorney general, was known for repeatedly taking the EPA to court. Now he's on the other end of the stick as part of a case that goes to the heart of tribal sovereignty.

Scott Pruitt can be seen seated on the far right during the announcement of a water settlement between the state of Oklahoma and the Choctaw Nation and the Chickasaw Nation on August 11, 2016. Photo: The Chickasaw Nation

During the Obama administration, the EPA concluded that the city of Riverton, Wyoming, is and always has been Indian Country. The decision means the Eastern Shoshone Tribe and the Northern Arapaho Tribe can set air quality standards affecting the city, which the state claims does not fall under tribal authority as part of an ongoing lawsuit.

The 10th Circuit Court of Appeals heard arguments in the case in November 2015 but a decision hasn't been issued. Pruitt, not surprisingly, joined a brief which argued that the EPA lacked expertise to determine whether Riverton is located within the Wind River Reservation in Wyoming.

The 20-page brief instead invited the 10th Circuit to determine whether the reservation has been diminished in such a way that excludes Riverton. Pruitt was one of 10 attorneys general that signed on to the document even though tribes in Oklahoma cannot participate in the TAS program without the state's consent.

The provision limiting the rights of Oklahoma tribes was inserted into a transportation bill in 2005 without prior consultation, notice or debate. It requires tribes there to obtain a "cooperative agreement" with the state before administering water or air quality programs. No other tribe in the nation is required to so do.

Ironically, the tribal settlement included in Pruitt's EPA biography has been promoted as a way for the Chickasaw Nation and the Choctaw Nation to exercise control of waters in their territories. The deal became law in late 2016 without a single hearing or debate.