Sen. Byron Dorgan, Chairman of the U.S. Senate Committee on Indian Affairs, has been waging a lonely battle to enable Indian tribes across the country to develop what could be vast gas, coal and oil resources on their lands. Standing in the way of Senator Dorgan—and the Indian tribes—are a huge series of uneconomic and anachronistic laws and regulations that taken together render Indian lands disadvantaged compared to state or private land. At a time when we are desperately seeking domestic energy sources, this situation badly needs to be remedied.
To enable Indian tribes to compete (and to tap into wind and solar not to mention rich sources of oil and gas), Senator Dorgan has drafted legislation—the “Indian Energy Promotion and Parity Act of 2010”—that is intended to overcome outdated restrictions and regulations and to encourage Indians to develop their resources in a sustainable way. The draft will also expedite Department of Interior’s processing of key energy related documents by establishing one stop shops to ensure more rapid permitting, licensing and other energy related documentation.
Clearly, recognizing Indian communities and lands should be part and parcel of our national and regional energy planning. And yet, as of now, it is not an integral piece in our overall national energy assessment. Senator Dorgan’s draft would address this staggeringly serious omission and would also ensure that energy development on Indian lands is undertaken with an eye toward the long term. The draft would also enable Indian tribes to reach across the spectrum of agencies to integrate what are now disparate and separately managed energy related funding and programs.
Also included in the draft are provisions for “Indian Energy Resource Plans” that would take into account transmission, environmental considerations and management elements on a reservation-wide basis. Such plans would be arrived at collaboratively with participation by the tribes and the Secretary of Interior. The Dorgan bill would prohibit the imposition of a $6,500 per application fee now required for permits to drill on Indian land—fees that discourage energy exploration and which are not required on state or private land.
And finally, whereas private landowners can negotiate and enter leases on their lands as they see fit, leases of Indian tribal land must be reviewed and approved by the Secretary of the Interior. This antiquated rule—a relic of the past when Indians were thought incompetent—together with the limited lease terms contained in Indian land leasing statutes, spell horrendous handicaps for tribes seeking to develop their resources. The Dorgan bill would provide remedies that bring Indian land leasing efforts into the millennium and would also right historic inequities by making tribes eligible for the first time for funds now provided to states for energy conservation and home weatherization.
There are no better stewards of Indian lands than the Indians themselves. Dorgan’s bill authorizes the Interior Department to delegate to willing and able tribes the responsibilities of Federal officers under the National Environmental Protection Act (NEPA). The Secretary would still monitor tribal environmental reviews, provide training to tribes and suspend or terminate Indian responsibilities in the event of deficiencies.
Americans have before them a unique opportunity to harness as yet untapped and rich energy resources on Indian lands. Supporting Senator Dorgan opens a doorway into a more energy-competitive future for all of us and a new and vital entrepreneurship experience for Indian tribes. In the interests of fairness and our energy security, Senator Dorgan’s draft should quickly move through Congress and become law.
Paul Moorehead received his J.D. from Temple University School of Law in 1988 and his bachelor’s degree from the University of Delaware in 1985. He is a member of the District of Columbia bar.