Tribal energy bill rests on Indian self-determination


With oil topping $55 dollars a barrel, the U.S. House of Representatives on
April 21 approved by a vote of 249 - 183 House Bill 6, the "Energy Policy
Act of 2005," to provide comprehensive solutions to the energy crisis that
America is now experiencing.

H.R. 6 is a mammoth undertaking and includes provisions related to energy
efficiency, renewable energy, oil and gas, coal, alternative fuels and
hybrid vehicles, fuel cells, hydrogen, research and development,
electricity transmission, ethanol, energy tax incentives, geothermal
energy, hydropower, energy exploration in the Arctic coastal plain and
Indian tribal energy.

Because of its focus on regulatory and leasing reforms, financial and
technical assistance for tribal producers, and its strong emphasis on
tribal decision-making in energy development matters, the Council of Energy
Resource Tribes (CERT) strongly supported the Indian Energy Title in the
108th Congress and is proudly standing behind the current energy bill for
the same reasons.

Title V of H.R. 6 - the "Indian Tribal Energy Development and
Self-Determination Act of 2005" - is aptly named because it provides real
assistance to those tribes that want to participate in the development,
regulation and management of energy resources on their own lands.

Title V creates a new "Office of Indian Energy Policy and Programs" at the
U.S. Department of Energy; authorizes the secretary of the U.S. Department
of the Interior to assist tribes in enhancing their capacity to develop and
manage their energy resources; and authorizes grants, loans and loan
guarantees to tribes for the full variety of renewable and non-renewable
energy resource development.

In fact, there is a growing interest among tribes to develop their
alternative and renewable energy resources to serve their own growing
domestic energy needs. Tribal populations are growing twice as fast as the
general U.S. population and tribal economies are growing three times as
fast as the national economy.

Nearly every Indian tribe owns or has access to wind, solar, biomass or
other forms of alternative energy resources that can be used to produce
electric power for local distribution and use. Title V provides the kind of
capacity-building help that many tribes need to make this potential a

What has drawn the most interest is a provision in Title V that creates a
new lease negotiation regime whereby tribes can negotiate and enter leases
or business arrangements for energy exploration, extraction, processing or
development of energy on tribal land, and can do these things without
requiring the approval of the secretary of Interior. Freeing tribes from
direct federal control over the use of their lands and resources is
directly in tune with the policies of the last 30 years to bring about a
significant improvement in every aspect of life in Indian communities.

In order to take advantage of this provision, a tribe will need to
demonstrate to the secretary that it has the capacity to regulate and
manage its energy resources and its environment in a responsible way. In
making this demonstration the tribe must also identify and evaluate all
significant environmental impacts, establish an environmental review
process, consult with local communities and afford these communities the
opportunity to comment on the environmental impacts of the proposed

The safeguards contained in Title V are significant: fully two-thirds of
the entire tribal section is dedicated to the requirements and standards to
which a tribe must establish and adhere before it can be liberated from the
requirement of obtaining the signature of the secretary of Interior on
energy agreements.

It is no coincidence that the leading lights of the Indian
self-determination movement in the 1970s were also the same men and women
who founded CERT in 1975: Leonard Burch of the Southern Ute Indian Tribe,
Roland Johnson of Laguna Pueblo, Mickey Pablo of the Confederated Salish
and Kootenai Tribes, Earl Old Person of the Blackfeet Nation, Allen Roland
of the Northern Cheyenne, Peter McDonald of the Navajo Nation, Norman
Hollow of the Assiniboine and Sioux tribes; and the list goes on and on.

These people had vision and knew that once they were left unmolested and
allowed to exercise the authorities they had been denied for so long,
Indian tribal governments were fully capable of being strong local
governments that are responsive to their members and able to provide
governmental services to members and non-members alike. And they would
safeguard their homelands for the generations to come.

In fact, the environmental disasters cited by the opponents of Title V such
as abandoned mines, destroyed aquifers and air pollution are disasters that
have occurred on Indian lands under the secretary of Interior's exclusive
control over energy resource development on those lands.

For 30 years, through contracts entered into pursuant to the Indian
Self-Determination and Education Assistance Act of 1975 and then through
compacts negotiated under the Tribal Self-Governance Act of 1988, Indian
tribes and tribal organizations have been outperforming the U.S. government
when it comes to taking over and "tribalizing" health care, law
enforcement, natural resources and other programs.

And directly apropos are the Indian provisions in the environmental
statutes passed in 1985 that provide for tribes to set their own
environmental standards apart from state standards as long as they are no
less stringent than federal standards. In no case are tribal standards
lower than those of the state or federal governments.

The EPA is authorized to delegate its enforcement authority to Indian
tribes in the same way that it may delegate enforcement to the states. In
fact, the energy resource tribes led the fight to have Congress include
tribes in the environmental statutes in order to prevent further erosion of
their environmental resources that was occurring under the watch of the
Department of Interior. Given this history, we must ask the question: Why
are tribes to be entrusted with environmental standards and enforcement in
one set of federal statutes and yet deemed unworthy in another?

The time has come for Indian tribes to re-assert their authority to control
the scope, scale and pace of energy development, regulation and management
in their homelands when they deem themselves ready through the opt-in or
opt-out aspect of the bill's provisions.

The Indian energy title does just that and tribes across the country -
whether they are energy tribes or not - are supportive of the title and the
tribes that choose to take advantage of it.

A. David Lester, Muscogee/Creek, is executive director of the Council of
Energy Resource Tribes (CERT), a 53-member tribal consortium based in
Denver, Colo.