Federal appeals court rejects Pawnee Nation challenge in Oklahoma environmental dispute
(OKLAHOMA) A federal appeals court has ruled the State of Oklahoma has the right to administer environmental programs in parts of Indian Country, rejecting a challenge from the Pawnee Nation of Oklahoma over the state's authority and the removal of tribal consultation requirements.
In a 2-1 decision issued October 16, the U.S. Court of Appeals for the Tenth Circuit ruled the Environmental Protection Agency was correct when it approved Oklahoma's request to administer 26 federal environmental programs in parts of Indian Country without requiring additional tribal engagement.
The environmental programs include air and water quality, hazardous waste and drinking water protections.
While Judge Timothy Tymkovich and Judge Robert Bacharach voted in favor of the decision, Judge Richard Federico argued the law did not clearly prevent the EPA from requiring Oklahoma to consult with tribal nations before taking environmental actions.
“The Indian canons rest upon a foundation of respect for tribal sovereignty and the federal government’s general trust responsibility to the tribes,” Federico wrote in his dissent. “Here, however, EPA relies on the rider – an uncodified, last-minute addition to a 2005 transportation funding bill – to lay down a vast upheaval of environmental and Indian policy in Oklahoma. Through the rider, EPA authorized the State of Oklahoma to administer its environmental programs in Indian country, rather than EPA or the tribes themselves. Although the rider permits this upheaval, it does not also require the Pawnee Nation and other tribes to be completely cut out of the deal. This court should not so readily acquiesce to the total displacement of the tribes as the first sovereigns of their land absent a clear statement from Congress to the contrary.”
The provision Federico points out is commonly referred to as the “Midnight Rider”, inserted into a federal transportation funding bill by then-U.S. Sen. James Inhofe shortly before its passage.
It was only after the 2020 McGirt ruling that Oklahoma began using the provision to seek more environmental regulatory authority, extending previously approved programs into areas newly recognized as Indian Country. Oklahoma's request excluded tribal trust lands and Indian allotments already recognized as Indian Country before McGirt.
After attempting to engage 38 tribes in Oklahoma over a period of just three weeks, the Environmental Protection Agency (EPA) approved the state's request in October 2020.
According to court documents, the Pawnee Nation requested consultation during the initial 2020 process, but the EPA said the two sides could not agree on a meeting time before the consultation period ended.
Sixteen tribal nations, including the Pawnee Nation, petitioned the EPA to reconsider its approval.
Five years later, in January 2025, the EPA required Oklahoma to follow tribal engagement procedures, such as opportunities for consultation and documented tribal engagement.
After President Donald Trump returned to office, the EPA reversed course, eliminating engagement requirements in May 2025.
In his dissent from the recent ruling, Federico argued the federal government's longstanding responsibilities toward tribal nations should weigh heavily when interpreting a law that affects their sovereignty.
In an October 21 statement, the Pawnee Nation shared disappointment about the ruling but said the decision would have limited impact on the Nation, including federally recognized authority over water quality on Pawnee lands.
“The Tenth Circuit’s decision does not change existing environmental regulations on Pawnee lands and waters, nor does it transfer new environmental programs to the State of Oklahoma,” the Nation said.
The Pawnee Nation also stated the court did not rule on the scope of McGirt or suggest the Supreme Court's decision only applies to criminal cases.
“It is also important to clarify the Pawnee Nation is not a ‘McGirt tribe,’” the Nation said in its statement. “Our jurisdiction and legal status does not come from the McGirt decision. It comes directly from Congressional treaties and statutes such as 18 U.S.C. § 1151, which remain the supreme law of the land.”
Read the Nation’s full statement here.
Oklahoma Governor Kevin Stitt praised the decision, saying the ruling is a clear victory for all four million Oklahomans, the state of Oklahoma, and the rule of law.
“Since McGirt, I’ve warned that efforts to stretch that narrow criminal ruling into every area of law would tear our state apart,” Stitt said. “McGirt does not erase Oklahoma’s civil, tax, or environmental authority. We are a law‑and‑order state, and we will continue to enforce one set of rules fairly for everyone.”
As per usual, Stitt's statement does not address the distinction between race and tribal citizenship or sovereignty.
The ruling does not prevent Oklahoma from voluntarily consulting tribal governments, and Pawnee Nation said they would continue to work collaboratively with Oklahoma on a government-to-government basis to protect natural resources regardless.
