New Indian Energy Policy Draft Rewrites Bush-era Law

Several months ago at the State of Indian Nations address in Washington D.C., Jefferson Keel, President of the National Congress of American Indians, implored Congress and the Obama administration to dispose of the hurdles that have kept tribes from tapping their own energy resources. Since then, many more tribal leaders have come before the House and Senate to vent their frustrations, prompting some Republican congressmen to ask: “Why do we even need the BIA?”

Yet most tribes aren’t ready to give their federal trustees the boot. In fact, in a hearing before the Senate Committee on Indian Affairs two years ago, tribal leaders hinted at their wariness of winning too much sovereignty over energy leasing and permitting, for fear of having to take on full liability for the investments and the federal government abandoning its trust responsibility to protect Indian interests.

But a very rough draft of an Indian energy bill from Sen. John Barrasso, R-Wyo., released last month, looks to boost energy development on tribal lands while allaying liability fears. So far, the draft proposes amendments to Title 5 of the Energy Policy Act of 2005, which gives tribes access to “tribal energy resource agreements,” or TERAs. Tribes can apply to enter into these agreements with the Secretary of the Interior, who, in turn, permits them to approve of leases, business agreements, and rights-of-way, expediting energy development on Indian lands. Tribes have yet to make successful use of the TERA system – hence Barrasso’s bill.

Here are the main provisions:

• If the Interior Secretary does not disapprove of a tribe’s TERA application within 270 days, the agreement automatically takes effect.

• The Interior Secretary will judge a tribe’s capacity to issue its own leases, business agreements, and rights of way within 120 days of application, and if the Secretary fails to respond, the tribe will be considered capable of handling its own energy dealings.

• The money the Secretary saves by not dealing with leasing and other permitting should be made available to the tribes who have taken on the work themselves.

• When tribes enter into a TERA agreement, this does not fully absolve the feds of their liability on Indian land.

• Tribes with or without TERA agreements are allowed to enter into leases or business agreements with energy groups that are owned and controlled by the tribe, as long as the tribe has a history of similar land management and also owns a majority interest in the energy project.

This isn’t exactly what tribal leaders have been hoping for, though time will tell as they comment on the draft. Last year, they showed strong support for a concept former Sen. Byron Dorgan, D-North Dakota, had introduced – the “one-stop-shop.” This system would have placed representatives from all of the federal agencies responsible for the permitting process together on the reservation, in hopes that proximity could allow for efficiency. Dorgan tried this on the Fort Berthold reservation, but it was hard enough finding qualified staff, let alone convincing them to move to North Dakota.

So maybe turning responsibility over to the tribes is the trick to opening up Indian lands to energy development. But maybe, too, we should hope that the tribes take their sovereignty and wield it cautiously.

Sierra Crane-Murdoch is an intern at High Country News.

Photo courtesy of Flickr user Elston.