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Campbell warns of unintended consequences on energy rights of way

ALBUQUERQUE, N.M. – Addressing several dozen Indian leaders and representatives at an Aug. 30 meeting on tribal energy rights of way, former U.S. Sen. Ben Nighthorse Campbell called for greater political engagement among tribes against legislative processes that can end in sneak attacks on self-governance.

The occasion at hand was a draft report on tribal energy rights of way that threatens to undermine tribal authority over the use of land reserved for tribes in trust by the federal government. Most of the rights of way in question involve oil and gas pipelines over tribal lands. The law as it stands now requires tribal consent to rights of way authority over tribal lands; the report has raised the prospect that Congress might modify or remove the tribal consent provision.

Campbell retired from the Senate in the first days of 2005, at the outset of the current 109th Congress. In previous years, as chairman of the Senate Committee on Indian Affairs, Campbell and his staff had contributed an Indian title to what became the Energy Policy Act of 2005. But on its way into law, once Campbell’s watch had ended, the Energy Policy Act came to include Section 1813, calling for a report to Congress on tribal energy rights of way by the departments of Energy and the Interior. The report is now in draft form, with a final draft scheduled for submission to Congress at the end of September. (The draft report is available through the Internet at

Campbell provided the lead-off public comments in Albuquerque Aug. 30, at the last in a series of meetings Energy and Interior have held to gather comments on the draft report. The comments will help to guide the final version of the report. (The last day for comments was Sept. 4, a holiday, though an Interior official on hand in Albuquerque hinted that flexibility may be possible in some instances.)

“Many of you know that I was very active in writing the – I should say, too, our terrific staff – the Indian section of this energy bill, which is now the law of the land. But unfortunately it got bogged down in conference two times while I was still the chairman of the Indian affairs committee.

[The official mission of a “conference committee” is to reconcile differences between the versions of a bill passed in both the Senate and the House of Representatives – though as noted below, wholly new provisions can be introduced “in conference” and these new grounds for new differences often ground a bill altogether.]

“It did get passed and to our benefit. Senator [Pete] Domenici, our great senator from New Mexico, [who] has always in the past been so good on Indian issues, picked up that Indian section and included it in the energy bill, and it did pass.

“But as you know, this section, 1813, was not part of the Indian section. It was put in there, kind of at the last minute, in conference as I understand it, and here we are living with it. But it points out, from a general standpoint, why Indian people have got to be more involved. Because even this day and age, after all the bad things that have happened to our people in the history of this nation, we’ve still got things being snuck through the United States Congress that land on us without us knowing it’s coming. Just blindsiding us once again. And I get very upset with that, as you do, too.”

Campbell added that some features of the draft report justify a sigh of relief. “I don’t want to sound too negative, but unfortunately I have focused on some of the things ... that could have been improved.”

With that he leveled a series of critiques that almost 20 other speakers echoed and re-echoed throughout the morning. They all amounted to two messages for preparers of the final report – Indian country is all but unanimously opposed to changes in present law on rights of way, and the data compiled in the report do not justify any changes to the status quo.

But only a former senator could touch as Campbell did on the report’s unintended consequences. Congress is always wary of unintended consequences in lawmaking, he said, because the understanding on Capitol Hill is that Washington simply doesn’t possess perfect information or knowledge. The draft report has already had unintended consequences, according to Campbell; and according to him, more will follow if Congress modifies the requirement in law that tribes must consent in rights of way decisions on tribal lands.

“Number one is going to be, inflame the anger of tribes. I mean they are one voice on this right of way issue ... And I think number two what it has done is jeopardize the ongoing dialogue between tribes and friendly pipeline companies, if I can use that word, who are now in the middle of negotiations that it’s kind of brought to a standstill. Neither side is sure what they ought to do in their negotiations because they don’t know what this is going to lead to ... Certainly, it’s kind of poisoned the waters.”

Last but not least of the “unintended consequences,” he added, is the prospect of a class action lawsuit against the government, modeled on the litigation over the Individual Indian Money trust that has been mismanaged by Interior and its delegate agency, the BIA. (This is the lawsuit informally known as Cobell, after lead plaintiff Elouise Cobell.) No one wants another lawsuit like that, he said. “But when you drive people into a corner, I tell you they’ll fight back. And Indian people are no different than anybody else in that respect. They’re gonna fight back. They’re not going to let this lie. They’ll fight back. And if they don’t get satisfaction ... as it [the report] proceeds to legislation, I think the next logical stop is going to be the courts. I’d hate to see that happen.”