A recent study conducted by Small Business America, reveals that “[a]cross all industries and at both ends of the political spectrum, entrepreneurs overwhelmingly support government investing in renewable energy and creating clean energy policies that will help guide them into a new economic sector where they can do business.” The study found that “71 percent believe government investments in clean energy play an important role in creating jobs now.”
The federal government is trying its best to make this happen. President Obama’s goal of generating 80 percent of the nation’s electricity from clean energy sources by 2035 has led to numerous projects on millions of acres of public lands, most in Western states. The administration has put some of the most promising, shovel-ready projects on a “fast track” for Bureau of Land Management (“BLM”) permitting. In issuing these permits, federal officials say “they have consulted with multiple tribes and have either made sure the massive solar projects will not harm any historic works or have determined that certain sites are not worthy of protecting.”
But, apparently, the Fed’s idea of what it means to “consult” in making this determination is something other than required by its own clearly defined laws and regulations. In 2010, for instance, the BLM allowed a solar project to move forward without adequately consulting the tribe whose areas of cultural significance would be directly affected by the project. Luckily, the tribe was able to obtain an injunction in federal court that put an end to the project before those areas could be harmed. See Quechan Tribe v. U.S. Dep’t of Interior, 755 F.Supp.2d 1104 (S.D. Cal. 2010) (“[I]f the tribe hasn't been adequately consulted and the project goes ahead anyway, this legally-protected procedural interest would effectively be lost.”).
The Colorado River Indian Tribes were not as fortunate. Late last month, a solar project named “Genesis” uncovered a human tooth and a handful of burned bone fragments the size of quarters on a sand dune in the shadow of new solar power transmission towers. As reported by the LA Times:
As a federally recognized tribal group with sovereignty over a 264,000-acre reservation, the Colorado tribes were offended that the BLM approved Genesis without holding “nation-to-nation” consultations with them. Before construction began, archaeologists had warned that the site near Ford Dry Lake was rich with Native American history. [D]uring construction last November, workers uncovered a pair of grinding stones and what appeared to be a layer of charcoal. The Colorado tribes say they are evidence of a sacred cremation site. Genesis claims they are insignificant artifacts. . . . NextEra warns that yielding to the tribes’ demands could result in costly delays that jeopardize completion of the 250-megawatt plant, which is being built on BLM land with the help of an $825-million loan guaranteed by federal taxpayers. . . . Native Americans insist they are not against renewable energy. The problem is that some solar projects were approved for lands that are an essential part of Indian religion, culture and history — without consultation with affected tribes.
To be clear (federal agencies take note): “Meaningful consultation means tribal consultation in advance with the decision maker or with intermediaries with clear authority to present tribal views” to the agency decision maker. This usually comprises of a meeting, during which the federal agency notifies the tribe of the proposed action and justifies its reasoning. The tribe may then issue a motion of support for the decision, or reject the decision, pursuant to tribal law or procedure. Lower Brule Sioux Tribe v. Deer, 911 F. Supp. 395, 401 (D.S.D. 1995).
The other side of the coin is that, contrary to being “against renewable energy,” tribal governments are in the best position to utilize their land to develop these projects in a manner that is consistent with their culture and tradition, and are actively seeking to do so. By the numbers, these developments should be paying off: An estimated $1 trillion in revenue is possible were Indian country to fully develop its energy resources. With tribes already feeling the brunt of global warming, the environmental benefits of using alternative energies to support the next generation are increasingly being explored. Where unemployment levels are disproportionately high in Indian country, perhaps equally important is that alternative energies are job-creating hothouses.
But as I noted last summer, the federal government has failed to allow tribes to enter the alternative energy market at all. In short, were a Tribe to chose to develop its own lands in a similar manner – save for the disturbance of its areas of cultural and spiritual significance – the project would have been a dead end. Pursuant to 25 U.S.C. § 415, transactions involving the transfer of an interest in Indian trust land must be approved by the Bureau of Indian Affairs (“BIA”). And even where the tribe structures the project without leasing its land, 25 U.S.C. § requires that the BIA approve contracts that could “encumber” Indian lands for a period of seven or more years. In these instances the BIA approval process constitutes a “federal action,” which triggers a slew of federal laws that the BIA must comply with – laws that can take over 12 years to comply with and can generate millions of dollars in additional cost.
In August of 2010, Senator Byron Dorgan (D-ND) introduced S. 3752, “[a] bill to amend the Energy Policy Act of 1992 to streamline Indian energy development, to enhance programs to support Indian energy development and efficiency, to make technical corrections.” In short, the bill attempted to reduce the Federal burdens through mandated interagency coordination of planning and decision-making; regulatory waiver provisions; relief from land transaction appraisal requirements; and the elimination of fees assessed by Bureau of Land Management for applications for permits to develop Indian lands. But the bill died before it was introduced to the full Senate.
More recently, in October of last year, Senator John Barrasso (R-WY) introduced S. 1684, “[a] bill to amend the Indian Tribal Energy Development and Self-Determination Act of 2005.” Although not as robust as S. 3752, S. 1684 is significant in that it makes the Tribal Energy Resource Agreement (“TERA”) provision of the Indian Tribal Energy Development and Self-Determination Act of 2005 somewhat workable. Section 103 of the bill extends an approval exemption to leases, business agreements, and rights-of-way granted by a tribe to a tribal energy development organization in which the tribe maintains a controlling interest, thereby expanding the opportunity for access to capital for direct tribal development without federal approval where the tribe continues to control the activity. This Section also provides for a favorable tribal capacity determination based on a tribe’s performance of 93-638 contracts or self-governance compacts over a three year period without material audit exceptions; allows for TERA funding transfers to be negotiated between the BIA and the tribe based on cost savings occasioned by the Interior Department as a result of a TERA; and confirms that TERA provisions do not waive tribal sovereign immunity.
Last week, the Senate Committee on Indian Affairs held a hearing on S. 1684, where numerous tribal officials indicated their support for the bill. Although many officials submitted that “biggest problem is what is not in the bill” – as “S. 1684 barely scratches the surface of outdated laws and regulations, bureaucratic regulatory and permitting processes, and insufficient federal staffing or expertise to implement those processes” – the overall sentiment was that S. 1684 is a much needed step in the right direction. As noted by Tex G. Hall, Chairman of the Mandan, Hidatsa, and Arikara Nation of the Fort Berthold Reservation: “If Indian tribes are going to unlock the potential of their energy resources and provided needed domestic energy supplies, we need real changes in the law. Changes that affirm tribal authority, provide tribes access to funding and financing opportunities, and allow tribes to participate in federal energy programs that have over looked tribes for decades.”
The next step will be for the Senate Committee on Indian Affairs to consider mark-ups to the bill. A fine line will need to be towed. Hopefully, considering the testimony of tribal leaders submitted last week, mark-ups can make the bill as hearty as the previously introduced S. 3752. However, a step in the right direction is better than no steps at all, and any changes that will furnish the bill a similar fate should be avoided.
Hopefully both sides of the coin – cultural property protection in the face of any callous non-Indian energy development, and streamlined tribal energy development for sake of tribal self-determination – can be realized by the revised S. 1684. The protection of Indian Country, both in the long and short term, quite literally depends on it.
Ryan Dreveskracht is an Associate at Galanda Broadman PLLC, of Seattle, an American Indian majority-owned law firm. His practice focuses on representing businesses and tribal governments in public affairs, energy, gaming, taxation, and general economic development. He can be reached at 206.909.3842 or firstname.lastname@example.org.