WASHINGTON - With a Senate vote on the national energy legislation and its Indian-specific provisions looming at the end of July, Navajo President Joe Shirley went to Washington to talk about time and trust - time as measured in "hundreds of years," trust as a matter of "sacred relationships."
Shirley's last-minute appearance in Washington July 16 and 17 was the continuation of a Navajo campaign against Indian-specific provisions of the bill that began with a speech to the National Congress of American Indians in mid-June. Above all, Shirley and the tribes and organizations that share his viewpoint insist the provisions will imperil the federal trust relationship with tribes. This is because tribes that may choose to operate under streamlined energy project approval procedures would give up any right to hold the government accountable, under the federal trust obligation, for the use of natural resources that are held in trust for tribes.
Provisions of the Energy Policy Act of 2003 (S. 14 in the Senate) would authorize tribal leases and business agreements, as well as rights-of-way, without continuing approvals from the Secretary of Interior. The secretary's approval at the front end of an energy development project would extend to overall approval of a project's later provisions in a process known as "streamlining." (The streamlining provisions are found in Title III, section 303, subsection 2604 of S. 14.)
Opponents of streamlining fear that such a "front-loaded" approval mechanism will invite exploitive business practices as projects move along. Shirley believes the process will provide incentives for an Interior Secretary to "coerce" tribes into "streamlined" projects as they compete for limited funding. Tribes that opt for streamlined energy development projects will be out of the government's hair, he said, "but the secretary is still in our hair regardless."
And the prospect of environmentally unsound energy extraction procedures on tribal lands, in the absence of state and federal oversight once the Secretary of Interior's initial approval were granted, has raised alarms outside of Indian country too.
The Conference of Western Attorneys General, for instance, notes its standing objections in a letter dated June 9, just prior to the Senate vote that preserved the controversial streamlining provisions: "By removing the Secretary from the approval process, S. 14 eliminates the 'major federal action' that triggers the application of the National Environmental Policy Act (NEPA) and other federal laws. ? "Of particular concern is the scope of activity that could occur under section 2604. The specific language allows for the 'exploration for, extraction of, processing of, or other development of energy resources on tribal land.' This means that oil and gas extraction, power plant development, and even some mining activity could occur without stringent environmental review and meaningful public participation. Furthermore, since the energy development activity can occur on any tribal trust land - both on and off-reservation - the potential for conflict with other landowners is high. ? While it has been argued by some that tribal lands should be treated the same as private lands [Campbell and Domenici have carried this argument in Congress], it is important to note that development on private lands is subject to applicable state and local laws. Total diminishment of the federal role leaves no readily apparent applicable law to fill the gap."
Other concerns include the authorization of non-Indian entities as parties to tribal energy development organizations, potentially setting the stage for federal funds earmarked for Indians to end up with non-Indian organizations.
Proponents on the other hand, led by co-sponsoring Sens. Pete Domenici, R-N.M., and Ben Nighthorse Campbell, R-Colo., reject these views as so many exercises in red tape designed to prevent tribes from making decisions for themselves.
They argue that the new provisions overcome some of the regulatory burdens that have long been an acknowledged hindrance to economic growth throughout Indian country. In addition, they point to the vast energy potential of Indian lands as a national resource whose development should be supported, enabling tribes to take part in what Domenici terms "the energy solution." They consider the strictly voluntary nature of the new provisions - tribes must choose to be governed by them in their development projects, or they remain subject to the Secretary of Interior approvals now in place - an adequate guarantee of trust obligations.
The streamlining provisions have survived extensive public debate and two close party line votes, one of the Senate Committee on Energy and Natural Resources, one of the full Senate. Domenici, chairman of the Senate Committee on Energy and Natural Resources, and Campbell, chairman of the Senate Committee on Indian Affairs, remain solid in their support for the bill. Given Republican control of the Senate, Republican principals expect to pass S. 14 before the congressional recess in August. As late as last week, on the eve of Shirley's last-ditch lobbying visit, July 28 was given out as a solid date for the vote.
Then President Shirley came to Capitol Hill. He spoke with Domenici, apprising him that the Navajo consider him a father and son, brother and protector all at once. "We consider him very honorable," he said in a separate interview. "We need to be heard, Senator."
Specifically, he asked to be heard on language in the bill, presumably language that would make the streamlining provisions more palatable for tribes. As is, subsection 2604 would damage a trust relationship based on treaties, he said, again in an interview separate from his meeting with Domenici. "You're doing away with sacred things, and that cannot be. ? We can't accept it as it is."
Shirley said Domenici "acquiesced" to his request for a reconsideration of the streamlining language in the bill. "I would say the door's still open" to changes, he added.
Marnie Funk, of Domenici's Energy and Natural Resources Committee staff, did not return a detailed voice-message requesting confirmation of Shirley's interpretation.
Paul Moorehead, Campbell's lead counsel on the Senate Committee on Indian Affairs, said Campbell is willing to negotiate improvements to the bill, and always has been notwithstanding overly colloquial accounts that discussion has been "closed down." The colloquial phrase short-changes the nuance of Campbell's position, he added - that negotiation on provisions at issue can and should go forward. Campbell's starting point will still be that tribes know what is best for them and are competent to make their own decisions.
But having made their own decisions, Campbell believes, tribes that volunteer for this approach should not be able to keep the Interior Secretary on the hook for liability. Decision-making and liability go hand-in-hand in Campbell's view. The Senator is not willing to contemplate changes in S. 12's language that would have tribes make decisions regarding lease negotiations for energy development, but at the same time hold the United States liable for damages resulting from those decisions.
Many tribes and organizations agree with this approach, Moorehead noted. Those that have sent in letters of support are the Southern Ute in Colorado, the Cherokee Nation of Oklahoma, the Eastern Shoshone in Wyoming, the Mohegan Tribe in Connecticut, the Oneida of New York, Chickasaw Nation in Oklahoma, the Jicarilla Apache in New Mexico, the National Congress of American Indians, the United Southern and Eastern Tribes, the Five Sandoval Indian Pueblos in New Mexico, the Council of Energy Resource Tribes, the Native American Energy Group, the National Tribal Environmental Council in New Mexico, and the United States Chamber of Commerce.
Shirley too has letters from other tribes and organizations that express concern with the streamlining provisions. (Like Shirley, many of those concerned with subsection 2604 also support the larger goal of improving tribal energy project enhancements.)
Among those sharing or endorsing some of the Navajo concerns with subsection 2604 are the Conference of Western Attorneys General, Inter Tribal Council of Arizona, White Mountain Apache Tribe, Colorado River Indian Tribes, Tohono O'odham Nation, Hualapai Nation, Stillaguamish Tribe of Indians, Cowlitz Indian Tribe, Grand Portage Reservation Tribal Council, Yankton Sioux Tribe, and San Carlos Apache Tribe.
But the National Association of Counties has withdrawn objections to the bill contained in a May letter still circulated by the Navajo. Julie Ufner, associate director for energy, environment, and land use, said the association supports tribal energy development in its organizational platform. Meetings with the Senate leadership have convinced the association that the bill's streamlining provisions will not apply to local and state governments, Ufner said.
A final note: previous remarks by Campbell on the Senate floor invite speculation that the Navajo opposition to 2604 derives from a Supreme Court decision against it in March - a decision that denied the tribe $600 million in energy royalties from coal extractions. In addition, for the time being at least, the court's analysis enshrined it as an operational guideline of government that tribes managing their own projects cannot hold the federal trustee monetarily liable in the absence of specific statutory law to that effect.
The Navajo dissent from that analysis, and the decision has been mentioned in news articles detailing the nation's opposition to the energy bill. Another, still-active Navajo case against the same coal firm seeks civil damages.
Shirley denied that the nation seeks any showing of activity in Congress on the energy bill that would support Navajo argumentation on remand, appeal, or other reconsideration of these cases.
"I'm not talking about yesterday. I'm talking about hundreds of years."