Northwest Indian Law & Business Advisor : Northwest Indian & Tribal Lawyer & Attorney : Williams Kastner Law Firm : Tacoma, Seattle, Portland

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On September 10th, the Senate Committee on Indian Affairs published an Indian Energy Concept Paper regarding the future of energy development and efficiency in Indian Country. The Concept Paper identifies three strategic areas of concern: (1) antiquated laws and overbearing regulations that impede Indian energy development; (2) obstacles that prevent investment in Indian energy projects; and (3) Indian access to the transmission and distribution system to deliver energy.

Since the creation of Indian energy provisions in the Energy Policy Act of 2005, there has not yet been an Indian tribe that has successfully negotiated a Tribal Energy Resource Agreement with the Secretary of the Interior. Without Tribal ability to plan, develop and operate energy projects, the ability of the United States to fully access domestic energy resources – a matter of national security in terms of limiting reliance on foreign oil services – will be marginal. The Western, Indian-centric United States produces approximately 45% of the country’s renewable energy capacity and as such, Western states have policies that foster exploration, research and development of renewable energy projects.

Federal legislation should do the same. In particular, federal energy laws should provide Indian tribes and entrepreneurs to access to net metering, green energy credits, tax incentives, sales tax exemptions, rebates, low interest loans, and grant opportunities. All such solutions will help Indian energy developers capitalize projects.

Federal legislation should also bring a halt to the impediments of federal bureaucracy relative to Indian energy development. Tribal Energy Resource Agreements can be a useful tool to realize Indian energy plans, but only when they are negotiated with and approved by the Secretary in a timely manner. Congress should also consider how tribes can access the electric power grid, meaning whether and to what extent they must interface state utility regulatory agencies, recognizing the challenges that Indian utilities will have in negotiating contracts, tariffs and rates with state or local government.

It is widely believed that for Indian Country to achieve economic independence, tribal energy resources must be tapped. With proper federal facilitation, energy can and should power the future of Indian Country.
 

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In February 2009, the U.S. Supreme Court handed down a decision that sent shock waves throughout Indian country, which continue to reverberate. The Court’s Carcieri v. Salazar decision prohibits the Secretary of the Interior from taking land into trust on behalf of tribes who were not “under federal jurisdiction” when the Indian Reorganization Act was passed in 1934.

Before the IRA and in the wake of the Allotment/Dawes Act, Indian lands were pillaged by non-Indian homesteaders. Poor and desperate Indian landowners were cajoled if not coerced into selling their lands for pennies on the dollar. The IRA was enacted to prevent further unscrupulous alienation of Indian lands. To that end, Congress provided the Secretary of Interior with the authority to, among other things, restore reacquired Indian lands to federal trust status.

On September 24th, Senator Byron Dorgan introduced S.1703 to clarify Congress’s intent regarding the IRA; the bill has been called the “Carcieri fix.” Representative Tom Cole introduced companion legislation, H.R. 3697, on October 1st. Tribes and tribal members must review the legislation and request that their members of Congress support immediate passage of Senator Dorgan and Congressman Cole’s legislation. State, county and local government and anti-Indian gaming groups will certainly oppose the bills.

Tribal economic development, tribal land stewardship and tribal sovereignty at large all weigh in the balance of the Carcieri fix.
 

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On April 2nd, Senator Byron Dorgan introduced Sen. 797, known as the Tribal Law and Order Act of 2009. The Senate Committee on Indian Affairs held a hearing on the legislation on June 25th, and ordered the legislation to be reported favorably out of the Committee for a floor debate and vote by the U.S. Senate. Companion legislation in the U.S. House of Representatives, H.R. 1924 has been referred to the Subcommittee on Crime, Terrorism, and Homeland Security but to date there has not yet been any hearing scheduled for that legislation to proceed before the House for a floor debate and vote.

Indian tribal governments, law and justice professionals and victim advocacy groups should be analyzing the legislation and requesting that members of their Congress Delegation debate, support and vote for the legislation, when the time is right. It may prove strategically beneficial to hold over a floor debate and vote on the legislation until there is finality on the health care reform legislation currently working its way through Congress.

The legislation is intended to modify and strengthen the criminal justice system that operates within Indian country. Why? Because tribal communities face a high criminal offense rate, a depressed criminal justice system, and a quagmire that has resulted from the confused jurisdictional basis for the prosecution of crimes committed in Indian country. In the end, crimes occurring on the reservation are not being prosecuted as those that arise beyond Indian country. As such, many Indian people do not feel safe living in their own homes or neighborhoods.

The legislation seeks to rectify the high rate at which U.S. Attorneys decline cases for prosecution, by requiring federal law enforcement officials to disclose information to Tribal officials regarding declination decisions, including their reasons for declining to prosecute any case referred to them. Expect federal and tribal interests to diverge over the disclosure of declination information that the U.S. will deem confidential or privileged. Tribes must insist that declination disclosures not be so watered down by confidential or privileged classifications that the disclosures become meaningless. Indian country must not be prevented from learning about criminals who are running loose on the reservation, like major multinational drug cartels engaged in illegal narcotics and human trafficking on tribal lands.

With the goal of empowering tribal justice systems, the legislation directs the Secretary of the Interior to enter memoranda of agreement with tribal and state agencies for the purpose of training and commissioning tribal law enforcement officers. While this would enhance tribal police power, tribes must be aware that they and their officers could be subject to federal or state law enforcement standards. The legislation also authorizes tribal courts to sentence convicted offenders to imprisonment for up to three years and fines of up to $15,000.

However, the current legislation, if passed, would not come without tribal sovereignty costs. The law would require tribes to provide defendants state-licensed defense counsel; prohibit excessive bail or cruel or unusual punishment; and otherwise mandate due process of law. In reality, the requirements of the federal bill of rights would apply to tribes, which would overrule nearly 100 years of Supreme Court precedent holding the bill inapplicable to tribal governments. Tribal court judges would also be required to be state-bar licensed, and the judges’ decisions would need to be made public. By imposing federal requirements for tribal judicial service, Congress would be stripping that long-held power from tribes and tribal councils.

The Tribal Law and Order Act is a mixed bag for Indian country, requiring tribes to pay close attention to the Senate and House bills. If not, although tribal communities may end up being safer, tribal justice systems may end up virtually non-tribal.

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Yesterday, the Ninth Circuit Court of Appeals, in a decision authored by Judge William Canby, Jr., ruled that tribal police officers have limited authority to stop and detain non-Indians travelling on state roads within Indian reservations. But in doing so, the court erected an almost insurmountable roadblock for the plaintiff, Terrence Bressi.

Bressi was stopped by Tohono O’odham tribal police officers in 2002 at a roadblock on State Route 86. Bressi refused to provide his driver’s license or other identification to the officers. He was handcuffed and taken to the side of the road, where he was detained by the officers for four hours. The tribal officers issued Bressi two citations for violating state law before letting him drive away. Bressi sued the officers in federal court, alleging various causes of action for violation of his civil rights.

The court, in Bressi v. Ford, concluded “that a roadblock on a public right-of-way within tribal territory, established on tribal authority, is permissible only to the extent that the suspicionless stop of non-Indians is limited to the amount of time, and the nature of inquiry, that can establish whether or not they are Indians. When obvious violations, such as alcohol impairment, are found, detention on tribal authority for delivery to state officers is authorized. But inquiry going beyond Indian or non-Indian status, or including searches for evidence of crime, are not authorized on purely tribal authority in the case of non-Indians.” Importantly, the decision does not prohibit tribal roadblocks involving non-Indians.

The Ninth Circuit further ruled that tribal officers who are certified to enforce state laws are subject to federal constitutional restrictions on search and seizure. The court “recognize[d] that one result of our ruling is that tribal officers who are authorized to enforce state as well as tribal law, and proceed to exercise both powers in the operation of a roadblock, will be held to [federal] constitutional standards in establishing roadblocks.”

While the court reversed the dismissal of, and remanded, Bressi’s constitutional claim pertaining to the officers’ operation of the road block, it affirmed the trial court’s dismissal of all of his other claims, including those civil rights claims relating to his arrest and detention: “the Officers were entitled to qualified immunity; reasonable officers would not have believed that the subsequent arrest violated Bressi’s constitutional rights.” The court also left untouched the district court’s ruling that to the extent the officers acted under color of tribal law, they also enjoyed tribal sovereign immunity.