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No surprises for rights of way

WASHINGTON – The National Congress of American Indians and the Council of Energy Resource Tribes gave congressional staff a chance to consider tribes as the nation’s partners in energy production at a briefing session Sept. 13.

Jacqueline Johnson, executive director of the National Congress of American Indians, said the goal of the briefing session and related visits to Capitol Hill was to show Congress the sheer volume of tribal energy production and to emphasize the extensive impact rights of way decisions can have in Indian country. Turnout was good from both the House of Representatives and the Senate, she said.

The meetings on Capitol Hill produced no surprise intransigence against the tribal interest in energy rights of way, as predicted by Paul Moorehead, a lobbyist representing energy tribes for the firm of Gardner Carton & Douglas.

The occasion was a draft report on tribal energy rights of way commissioned by Section 1813 of the Energy Policy Act of 2005. The draft report documents no harm to consumers, energy companies or national security from negotiations between tribes and energy companies over the pricing of rights of way on tribal lands. But the draft report did not translate the positive findings into policy recommendations, and some tribes fear it could serve as a springboard for congressional initiatives that would diminish or remove the requirement in current law that tribes must consent to rights of way agreements involving tribal lands.

The Washington law firm of Sonosky, Chambers, Sachse, Endreson & Perry had clients taking part in Capitol Hill visitations and the NCAI/CERT briefing session. Reid Chambers confirmed an earlier statement of his that diluting tribal consent in the rights of way negotiations process would be a throwback to the 19th century.

Given that tribal self-determination is federal policy of long standing, Chambers said energy companies have been clever in pursuing their case against tribal consent in energy rights of way negotiations (energy companies instigated the Section 1813 study).

“They say, ‘We believe in self-determination. We just don’t believe in it where we’re concerned.’ They’re going back to the 19th century policy of seizing tribal resources for the use of the dominant society.”

Chambers added that energy companies should not be surprised if tribes that are simply pass-through points for energy conveyance negotiate good prices for their rights of way. “The money’s the only thing they get out of it.”

Of the positive findings in the Section 1813 draft report, Chambers said they should inform the recommendations in the final report. “The departments [of Energy and the Interior] should take the next step, and since Congress asked for recommendations they should recommend that no changes be made. I think that’s what they’ll [tribes] try to persuade them.”