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Indian rights of way and echoes of the 19th century

In 1532, Spanish theologian Franciscus de Victoria prevailed in a vigorous debate over the rights of the peoples of the New World that Indian tribes should not be deprived of their land without their consent. Exacting a tribe’s consent, therefore, was required by the Spanish and subsequent European colonial powers if Indians were to be separated from their valuable lands and assets.

This doctrine was adopted by the new American republic as reflected in the U.S. Constitution and in the Indian Intercourse Acts of the first Congress in 1790. The approval of the federal government was also made a requirement to prevent states and private speculators from securing tribal lands under fraudulent circumstances. As we all know, treaties, compacts and other agreements formed the legal basis for the transfer of hundreds of millions of acres of land in what has become the United States.

Indian lands not transferred to the federal government under treaty became known as Indian reservations. These lands were reserved as homelands for the exclusive and undisturbed use of the Indian people and their tribes. This principle continued even as federal policies vacillated between removal and extermination, to assimilation and the official termination of the status of Indian nations as entities with legal and political authority.

In its 1969 report entitled “Disposal of Rights in Indian Tribal Lands Without Tribal Consent,” the House Committee on Government Operations affirmed the 445-year-old legal principle that “Indian tribes should not be deprived of rights in their land without their consent” and in so doing rejected a proposal by then-Secretary of the Interior Stewart Udall to do away with tribal consent in granting rights of way over tribal lands.

In 2005, Congress approved the comprehensive Energy Policy Act of 2005. The act included Title V, the “Indian Tribal Energy Development and Self Determination Act,” designed to assist willing tribes to develop their own renewable or non-renewable conventional energy resources or to use their lands for the purposes of electric power generation or as transportation corridors for electricity, natural gas and other energy products by delegating certain federal approval authority to the tribe. Title V provides powerful incentives for willing tribes to develop their resources on their own or in collaboration with their energy sector partners to undertake energy projects benefiting the tribe, its members, the local communities, and our nation by increasing both the diversity and quantity of energy supply.

Unfortunately, the act also contains section 1813, which mandates a study on rights of way across Indian lands for energy purposes. The study is to be undertaken by the departments of Energy and Interior, and a report and recommendations are due to be submitted to Congress this August. The unspoken premise of the proponents of the study is that removing tribal consent from the rights-of-way equation is a legitimate objective and an appropriate exercise of Congress.

On March 7 and 8, the departments held a “scoping meeting” with energy company officials and elected tribal leaders and their representatives, and heard the perspectives of the attendees on a wide range of topics that included the necessity of undertaking such a study at all, the amount of material that needs to be collected and analyzed for an accurate portrayal of the issues, and – perhaps most important from the tribes’ perspective – the fundamental interest tribal governments have in preserving their legal prerogative to give or withhold their consent on the use of their lands.

What has become clear in recent months is that because of some tough negotiations with Indian tribes over rights of way, some in the energy sector are fearful that – unless restrained by the federal government – tribes will seek levels of compensation that “could” disrupt the flow and security of our nation’s energy supplies. This, notwithstanding the fact that no disruption in energy supplies has ever occurred due to failed negotiations with an Indian tribe. Let me repeat that: No disruption in energy supplies has ever occurred that was due to unreasonable negotiating demands of an Indian tribal government.

While the factual basis giving rise to the section 1813 study is weak, it seems plain to me that what we are witnessing is in fact the exercise of political power by at least one energy company with the objective of placing federal price controls on the value of tribal lands (i.e., the compensation due an Indian tribe for a right of way) for as long a period as possible, with the goal of fixing its costs while maximizing profits. This is especially true if the future build-out in terms of domestic energy infrastructure, production, transportation and transmission meets expectations.

It is strange that a private-sector interest with as vigorous a market performance as the energy industry, and which vigorously opposes government intervention over its operations, would seek to place them on Indian tribes. But, as was the case with domestic steel in restricting cheaper foreign steel, I suppose “bad interventions” are those that would cap energy prices to the consumer and “good interventions” are those that fix their Indian rights-of-way costs.

At the Denver sessions, the putrefied odor of an outdated ideology entered the debate during the remarks by the spokesman for a renowned property rights organization that strongly opposes government use of eminent domain over private property. Evidently, the organization has had a change of heart when it comes to government power over tribal lands because the spokesman argued that the tribal interest should give way to that of a private pipeline company when it comes to energy rights of way. How convenient changes of heart can be.

These and other tactics, charging that Indian tribes “could” distort the energy markets and cause havoc to America’s economy and jeopardize American energy security, are not new. One is left to imagine the beleaguered energy industry bravely crossing Indian lands, seeking government protection from the hostile Indians that threaten ambush at every step along the perilous trail.

In one sense, Indian tribes welcome the section 1813 study because we know it will show Congress and the American people that for years, Indian lands were seriously undervalued by the federal trustee when it controlled the granting of rights of way. The study will also show that, far from being a problem that has negatively impacted western U.S. energy markets, Indian lands and resources have helped fuel our nation’s economic and demographic growth by providing reliable and secure energy supply.

A. David Lester is the executive director of the Denver-based Council of Energy Resource Tribes, an organization of 57 federally recognized energy resource Indian tribes.