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Rights of way are the center of attention for another week

WASHINGTON – For the second week running, tribal leaders gathered in Washington to strategize over a forthcoming congressional study on rights of way and to deliver a clear message on Capitol Hill against any amendment dealing with tribal rights of way.

Members of the Crow Tribe, Zuni Pueblo, the Morongo Band of Mission Indians, and the Seminole and Chumash tribes convened at the National Congress of American Indian offices on June 27, along with lobbyists and advisers from such top-drawer Washington firms as Pace-Capstone, Holland & Knight and Gardner Carton & Douglas.

The study is due by statute to be completed Aug. 7. As tribal rights of way agreements with utility companies approach expiration dates and come up for renegotiation, utility providers, led by the New Mexico Oil and Gas Association and member company El Paso Natural Gas, have flinched from the higher price tag on rights of way demanded by tribal governments more sophisticated than those of the past. The argument has been made on Capitol Hill that tribal bargaining power could threaten the nation’s energy security. The solution to that, the energy industry is known to be suggesting, is to change the law so that the Interior Department secretary, already vested with the power of eminent domain to condemn tribal trust lands, would be able to do so without tribal consent where national energy priorities are concerned. Among tribal leaders, fearing infringement on sovereignty, cultural resources and economic development, the idea is a non-starter and, to some, an insult. They argue that tribes are full and patriotic partners in national energy security and so deserve better treatment, a view some believe the study may end up supporting.

Paul Moorehead, a lawyer and lobbyist representing the Council of Energy Resource Tribes for Gardner Carton & Douglas, said the energy industry will descend on Capitol Hill whatever the report says, but the tribal presence has made it possible to insist on “regular order” (a term of art for going through proper channels in Congress) for any amendments. Most of the many congressional members tribal leaders have visited on the Hill, he said, have either shown no predisposition on the issue of tribal consent, or else a predisposition in the tribe’s favor.

Brian Gunn, a lawyer and lobbyist representing the Confederated Tribes of Colville Indians, also for Gardner Carton & Douglas, said the potential for an amendment on tribal rights of way during the current “Energy Week” in Congress has receded a bit before the recent tribal presence on Capitol Hill. Gunn is looking ahead to the end of the congressional year, when the national budget is apt to be on the agenda of a Congress with many “lame duck” members who were voted out in the November midterm election but serving out their terms and pushing for pet projects with nothing to lose.

“I’m more worried about something getting attached to an appropriations bill after the election ... when it’s a lame duck [session], when they’re trying to get things passed.”

The energy industry, Gunn added, is lobbying Craig Thomas, R-Wyo., in the Senate, and Joe Barton, R-Texas, in the House of Representatives. Should the Republican Party retain its majority in both chambers, Thomas is likely to become chairman of the Senate Committee on Indian Affairs, and Barton to remain the powerful chairman of Energy and Commerce, one of the most influential committees in the House. A problem for tribes is that no one now with them, or working for them, has really good connections at Energy and Commerce. “These aren’t the usual suspects you would deal with in Indian country,” he said of the committee and its staff.

The tribal leaders on hand June 27 didn’t offer an opinion on whether the issue of tribal consent in rights of way decisions is being teed up for Dirk Kempthorne, the new Interior secretary. Throughout his political career, which includes terms as a U.S. senator and as the governor of Idaho, Kempthorne has welcomed the support of mining, oil and timber corporations. In the past, many critics have considered him energy industry-friendly to a fault.

Jacqueline Johnson, the NCAI executive director, downplayed that speculation. During Kempthorne’s brief tenure as Interior secretary, she said, he has already shown a deep respect for tribes and integrity of character in their behalf. She said she expects those traits will show themselves as Kempthorne addresses tribal issues.