End of an era?
Last Wednesday, to rather muffled fanfare, the Department of the Interior released a new set of rules that will make it easier for tribes and Indian landowners to lease their property for economic development. Native Americans will be able to do the things that private landowners do all the time: apply for a mortgage; establish a business; and lease surface rights for wind and solar development. Since 1961, when the Department established the current guidelines for leasing Indian land, permit applications have languished for years at a time. The new agreement limits how long the BIA can sit on an application, much like the time limits that state building codes place on municipalities.
These new rules may seem obvious to the rest of us, but to understand just how monumental, and overdue, a change like this is, one would need to crawl into the annals of Supreme Court reasoning, which, when involving Indian Country, has always been a paternalistic affair.
Take 1916, United States v. Nice — by no means the beginning, but a good place to start. A white man (Nice) sold a Sioux man some whiskey. The sale, the Supreme Court ruled, was unlawful, because the Sioux was a "ward of the government," and the Bureau of Indian Affairs, by way of managing Indian land, also controlled the things its wards bought and sold. The case's finer points would eventually loosen and fade, but the larger concept stuck — and chipped away, over the course of the next century, at tribal sovereignty, whose definition was already a bit wobbly. "When Indians are prepared to exercise the privileges and bear the burdens (of managing their own affairs)," read the decision, "the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial."
The new rules, you could argue, are a partial emancipation: The BIA still has the right to approve or deny a lease, but if it sits too long on a lease application — that is, more than thirty days on residential mortgages or more than sixty on commercial and industrial leases — the permit automatically goes into effect. The old process for leasing surface rights never directly barred these transactions, but the lengthy bureaucratic gymnastics often made investments prohibitively uncertain and expensive. Though the new rules don’t entirely scrap the intermediary, they do turn the BIA into more of a conduit than a guardian. The rules turn the responsibility to negotiate lease and mortgage prices over to the tribe or Indian landowner, and the BIA must approve leases unless it finds "a compelling reason to disapprove." As for what reason that may be, the agency doesn’t say.
The interesting thing about the rule change is that it operates on the assumption that a default "yes" to development is almost always in the best interest of the Indian landowner — or, if this is really a reprisal to a century of paternalism, that an Indian landowner should be able to do whatever he or she wants. What defines "best interest"? The rules don't say explicitly, but if you read between the lines, it's the freedom to decide for oneself.
But what if the best interest of the Indian landowner is entwined with that of the greater reservation, or of the region, or even of the United States? After all, borders are porous things. The question came into play this past October, when Secretary Salazar announced his approval of a new Bakken oil refinery on the Fort Berthold Indian Reservation. In a nod to sovereignty, Salazar noted that the refinery would promote "Tribal economic development and self-determination," while bolstering the United States' energy independence. Not everyone on the reservation agreed, and, in fact, several tribal members, worried by the refinery's cost to health, appealed the EIS, which found “no significant (environmental) impact."
The new rules don't touch subsurface leases — coal, oil, gas — the kind of development with far more pervasive impacts than, say, a house, or even a wind farm. Changes to some of those leasing structures will come next spring, when the Obama administration finalizes procedures to speed oil and gas drilling on federal land by streamlining and automating the application process. It's unclear what this means for Indian Country, but the announcement, along with the most recent rule change on surface leases, raises an interesting question: Should a tribal nation have the same autonomy in drilling oil wells as in building a wind farm? The prevailing thought, if one were to take the side of sovereignty, is that it should be no more difficult for an Indian landowner to develop his or her resources than it is for a white landowner.
The problem, perhaps, is how easy it is for all of us.
Sierra Crane-Murdoch is a correspondent for High Country News.
Photo: Oil on the Fort Berthold Indian Reservation, courtesy of Sierra Crane-Murdoch