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Energy Act Provision May Offer ‘False Sovereigntyâ€TM

by Christopher Getzan

A controversial provision of the Energy Policy Act of 2003 has Native American activists worried that their lands will become even more vulnerable to exploitation from large energy corporations.

Jan. 18, 2004 – Depending on who you talk to, a provision in the Energy Policy Act of 2003 will either make it increasingly easy for large corporations to treat Native American reservations like “batteries for large cities,â€� or it will or help ensure tribal sovereignty.

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The provision causing controversy -- the Indian Tribal Energy Development and Self Determination Act, or Title V -- places tribal governments, rather than the U.S. Department of the Interior, at the center of the decision making process concerning reservations' energy development. The act also provides subsidies for increased oil and gas extraction in general and encourages nuclear power plant construction and research. Though the bill stalled in the Senate last December, it is expected to be reintroduced in the coming session, possibly as soon as the end of this month.

As it stands now, the federal government -- usually the Department of the Interior -- has a “trust responsibility� with the majority of American Indian tribes. Title V, save initial impact reviews, allows a tribal government the choice to once and for all opt out of involving the Department of the Interior in energy development projects.

Opponents of the bill, including the advocacy group Native Movement, the Black Mesa Water Coalition, and the Indigenous Environmental Network, say that persistent problems facing many American Indian communities cloud assurances that tribal governments alone, rather than stronger oversight all around, will lead to cleaner and less bureaucratic energy extraction on reservations.

"Basically, it’s the federal government stepping back from its responsibility and saying, ‘Go for it, corporations.’" --Evon Peter

However, David Lester, a citizen of the Muscogee Nation and the executive director of the Council of Energy Resource Tribes -- a group that promotes tribal independence through capitalizing on resource development -- and other advocates of the bill say that it will enable tribes to bargain as an "equal partner" with companies looking to mine or withdraw oil from their lands without “the stumbling blocks� of federal interference.

“The [impact] review period has killed most of the deals� of tribes looking to utilize their resources, Lester said. “It’s the hassle factor of doing business with the Department of the Interior as [an] interference every step of the way."

“If they could control their own resources,� he added, “they could advance their own economic, social, political goals.�

Opponents of Title V, on the other hand, say that though this may seem like an opportunity for American Indians to get out from under an outdated and repressive federal scheme, there are flaws in both the resolution’s intent and function.

“Well-developed tribes may be ready to take on the responsibility of their own lands,� said Evon Peter, director of the Native Movement and former chief of the Neetsaii Gwich’in of Alaska. “Those with money can have a say in how things work. Major corporations are going to come in, with a lot more money, with a lot more lawyers. Now, these corporations are going to be able to do what they want with these tribal governments . . . Basically, it’s the federal government stepping back from its responsibility and saying, ‘Go for it, corporations.’�

Consumer advocate groups say that in the last decade, mining and dumping have had an adverse effect on many American Indian lands. For example, the Skull Valley Goshute reservation in Utah is planned as a pit stop for what the Department of Energy estimates will be a 100,000-shipment, thirty-year caravan of traveling nuclear waste. According to the Indigenous Environmental Network, just one component of the irradiated fuel that will be stored at Skull Valley, Plutonium 235, will remain toxic for the next 24,000 years, creating the possibility of an accident at the Goshute reservation that would quite literally poison the land forever.

Besides the environmental impact of resource extraction and nuclear waste, poor oversight has often led to Native Americans seeing little or no financial gain for resources removed from their land. For example, in 1995, an article in American Indian Quarterly noted that as much as $180 million had been paid by oil companies in royalty fees to the Utah Navajo Trust Fund for operations near Aneth Montezuma Creek. Still, third-world conditions persisted over the forty plus years of extraction on Navajo lands. Seventy five percent of Utah Navajos still had no electricity or running water, and the fund was practically bankrupt due to mismanagement and fraud. By the end of the 1990s, Utah Navajos were left broke and stuck with nearly 600 oil wells drilled into their lands.

However, according to advocates of the bill, the argument that Native American tribes are not yet ready to bargain with companies without the federal government's intervention ignores Native Americans' historical ability to set high environmental standards. Lester said the record shows that native communities, when given the chance to act independently, have made sound environmental decisions. He gives the example of the Northern Cheyenne in Montana who rejected a proposed coalmine outright, or the Pueblos of New Mexico, who are located downstream from Albuquerque and managed to turn around water quality for the whole region by setting high standards of their own.

Lester said tribal activists and Democrats opposing Title V have been whipped up by activists in the environmental movement. “We can substitute the environmental movement for the BIA (Bureau of Indian Affairs). We can’t accept federal paternalism, and we can’t accept [environmental groups] maternalism.�

“We’ve had a number of different eras in relations with the tribes,� says Paul Moorehead, Staff Director and Chief Legislative Counsel for the Committee on Indian Affairs. “But the clear trend [is moving] away from the massive federalization of tribal government.� Moorehead says that Title V represents a first step in an “analog� of trust liberalization that would extend into other fields on the reservation handled by the US government such as health care and law-enforcement.

However, to many Native American ears, arguments such as those of Lester and Moorehead, which present Title V as a mechanism for self-determination and economic freedom, ring hollow. Many such promises have been made in the past -- like the Dawes Act, which at the time was hailed as a kind of “Magna Carta� for American Indians, but in reality functioned only as a colonial land grant system. “It’s put forward as a tool for sovereignty, but really, it’s just disguised as sovereignty,� said Enei Begaye, the director of the Black Mesa Water Coalition and an Arizona Navajo. “Really, our tribes aren’t given any real enforcement power. They’re not equipped right now to take over [their] own environmental protection.�

Other critics of the bill, like Tom Goldtooth, the executive director of the Indigenous Environmental Network, say that another problem with the bill is that large scale energy resource extraction stands in direct contradiction to native cultural traditions. “It is at the detriment of something we hold sacred,� Goldtooth said. “These corporations have no interests in the rights of indigenous people. It is a form of environmental racism.�

The Energy Act of 2003 stalled before it reached the House-Senate conference phase, but both sides interviewed for this article concede the bill will not live or die come the next Senate session because of Title V.

Activists like Evon Peter and Tom Goldtooth say they are holding out for improvement of Title V. Peter said that a Clinton-era executive order puts the onus on the federal government to consult directly with tribes when there are changes to be made to tribes’ status, something senators debating the bill have apparently not done.

“Some tribes have had the money and the resources to [give their] input [to the government],� Peter said, “but I’ve never received any correspondence.� At any rate, Peter said, “What we’re hoping for is that if it goes back some place in the [legislative process], that the trust responsibility will be reinstated.�

Enei Begaye said her interest in the energy bill does not begin and end with Title V. “What we do with this energy bill, on a national level,� she said, “will be reflected back locally.�

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The NewStandard ceased publishing on April 27, 2007.


Christopher Getzan is a contributing journalist.

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