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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U.S. Senator Claire McCaskill has reinforced her intent to reduce Indian Country’s access to the Small Business Administration 8(a) contracting program by legislating it to death. She proposes language that would severely reduce access to the program by economically underserved businesses operated by tribal governments and Alaska Native Corporations. The Senator’s Press Secretary was quoted as saying: “Reform in this area is going to happen. It’s not a matter of if, but a matter of when.”

The SBA oversees the 8(a) contracting program, the purpose of which is to allow minority small businesses, such as those owned by Tribes and ANCs, an opportunity to access and compete in the American economy. In July, Senator McCaskill chaired a Contracting Oversight Subcommittee hearing on contracting preferences for ANCs, to investigate the alleged abuses in the awarding, management and oversight of the 8(a) program insofar as Indian Country is concerned. She now appears poised to introduce legislation or language into legislation that would strangle the already tenuous access that ANCs and likely all other Tribal governmental businesses have to federal contracting opportunity – and thereby to the greater American economy and their own prosperity.

The 8(a) program already requires an intensive and intrusive process that Tribal companies and ANCs must undergo when seeking certification from the SBA. Tribal applicants must submit financial, tax and business formation documents, as well as consent to a sue and be sued clause, among other requirements to be eligible for federal contracts. In turn, the competitive contract award process utilizes predetermined methodology to ensure that the contracts are carried out efficiently and in satisfaction of the 8(a) program’s intent. Such intensive disclosure helps facilitate full transparency, accountability and efficiency by the Native business, and by the federal government. In short, federal rules governing the 8(a) program already address whatever concerns that Senator McCaskill and others have regarding federal award, management, and oversight of contracts to Tribal businesses or ANCs.

The Native American Contractors Association, National Center for American Indian Enterprise Development and National Congress of American Indians have all expressed interest in guiding this important Native business policy discussion. To that end, Indian Country should request that the Senate Committee on Indian Affairs conduct a hearing to explore the SBA 8(a) program’s tribal experience. Specific Native 8(a)-certified businesses should also immediately begin to formulate responses to this policy initiative, which, if enacted, may close the door on a vital federal program that has never fully been utilized by Indian Country.