Bending Bureaucracy Towards Tribal Sovereignty

W. Gregory Guedel, Rick Tallman, Richard Luarkie, and Morgan D. Bazilian

Sovereign Native American Tribes and their communities can play a pivotal and positive role in the future of America’s twin pursuits of energy security and effectively addressing climate change.   Yet, most energy development projects that Tribes choose to pursue are pushed backwards by the very Federal bureaucracy put in place to support them. 

Native American lands are extraordinarily rich with energy resources.  Tribal lands contain twenty percent of America’s known oil and gas deposits, thirty percent of America’s coal reserves west of the Mississippi River, and fifty percent of America’s uranium reserves. The National Renewable Energy Laboratory has confirmed the presence of millions of gigawatts of renewable energy potential across America’s Tribal territories.  Still, significant Tribal energy development efforts remain stymied.  In many cases the issue is not technical nor economic, but rather a Byzantine set of bureaucratic rules, regulations, policies, and legislation that keeps energy development out of reach for many interested Tribes. 

For the past century, the development of energy resources on Tribal lands has been primarily managed by the Bureau of Indian Affairs, with little or no input from the Tribes or their communities.  The result has been a fundamentally flawed approach that the Inspector General of the Department of Interior has officially determined does not comply with environmental law, does not provide sufficient planning and mineral resource management, and lacks effective data management.  What little money the Bureau has collected from energy companies who have profited from Tribal lands has often simply disappeared without ever reaching the Tribe. Federal agencies have maintained no accounting of these financial assets for over 100 years.

While positive efforts are emerging across the government from the Department of Energy to Department of Interior, there is a need to reform administrative processes, and ensure some level of stability in investing and supporting Indian Country. 

In light of the terribly unjust history, we highlight three relatively simple, yet far-reaching actions to be taken at the Federal level to alleviate some of the entrenched bureaucracy and provide opportunity to Tribal communities - immediately, over the near term and for future generations. 

First, the President of the United States can immediately clarify federal policies and agency engagements with Tribes, codified in an Executive Order.  Specifically, the President could issue an Executive Order to all federal agencies that engage with Tribes directing them to proactively fulfill the clear policy stated in the Indian Self-Determination Act, which requires, inter alia:

“…the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from Federal domination of programs for and services to Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services.” 

Establishing “effective and meaningful participation” requires the removal of obstacles and delays in agency procedures that hinder the self-governance of Tribes.  Within the energy sector, the failure of federal agencies to uphold their responsibilities under the Indian Self-Determination Act has resulted in decades of economic waste, environmental damage, and lost opportunities for the creation of sustainable energy and desperately needed jobs.  The Biden Administration has done an admirable job of appointing Tribally cognizant officials to key administrative positions; now it must push the message down through the agencies with a clear directive to actively support Tribal self-management of energy development and environmental priorities within their lands.

Second, this reasserted policy can be operationalized over the near term by streamlining Tribal Energy Resource Agreement (TERA) procedures.  Tribes can take over management of energy development upon federal approval of a Tribal Energy Resource Agreement (TERA), the procedures for which are codified in 25 CFR 224.  However, it has been widely recognized that the federal requirements to obtain approval of a TERA are unduly onerous and burdensome for Tribes, resulting in nearly zero use of this legal vehicle for operationalizing Tribal authority. 

The Department of Interior should revise its regulations to eliminate unnecessary obstacles and delays for Tribes to obtain a TERA, such as the amorphous requirements for a “preapplication consultation” before the process can even begin, and lessen the voluminous documentation burden on Tribes that makes it nearly impossible to submit a “complete” application. 

Confirming the right of Tribes to manage the development of energy resources on their lands simply puts them on the same level as any other landowner in the United States, and provides a pathway for improving the results of federal management that the GAO has found to have “hindered energy development on Indian lands”. The result will be immediate and substantial benefits for Tribal communities, America’s national energy security, and the environment. 

Third, as we renew our national commitment to Tribal energy sovereignty and work to streamline the Federal process in the near term, we must also ensure Native Americans have the skills they will need to succeed sustainably into the future.  Funding should be made available through the doctoral level to Tribal students who wish to develop a wide variety of capabilities.  Not only will those future generations need to be proficient in science and engineering, but they will also need the skills to effectively navigate complex legal, regulatory, cultural, societal, and administrative frameworks.   

While considerable further effort will need to be focused on how to untangle the Gordian knot of State policies, these three steps would provide urgently needed economic opportunity to Tribal communities - now and for generations.