Section of Environment, Energy, and Resources

Native American Resources Committee

2009-2010 Committee Chair:

2009-2010 Committee Awards

This Committee was recognized with the following awards within the Energy and Resources Committees. (more)

• 2008-2009 Best Public Service Award

Message from the Chairs

Welcome to the Native American Resources Committee homepage. The Committee serves as the Section’s primary forum for discussing Native American and tribal issues as they relate to natural resources, energy and the environment. While our members engage in the full gamut of issues affecting Indian nations and resource development, from tribal environmental programs to how resource development affects religious freedom, our 2008-2009 Action Plan focuses on the following current and emerging issues:

Global Warming and Climate Change Impacts in Indian country. Climate change is an issue of global concern and a strategic emphasis for the Section as a whole. Dealing with global warming will require action by all levels of government, and our committee will explore the range of actions that could be taken by tribal governments and will promote discussions regarding inclusion of tribal governments in federal, state, and local government programs. In addition to the kinds of concerns that other levels of government have, climate change has the potential to disproportionately affect tribes as many tribes and their members depend on natural resources for a greater part of their cultural and economic well being than the non-Indian populations. Also, tribal lands may present unique opportunities, and unique challenges, for the development of renewable energy and for carbon sequestration.
Development and implementation of environmental protection and permitting programs in Indian country. Ongoing development of tribal government environmental protection programs and the engagement of tribes in direct implementation by the Environmental Protection Agency will increase the importance of tribal environmental protection law for section members. For example, the Navajo Nation has recently enacted the first tribal superfund law and states, industry and other tribes are closely watching this new area of tribal regulation and enforcement.

In addition, the “Indian Energy” title of the 2005 Energy Policy Act continues to have major implications and present tribal and industry opportunities to develop tribal natural resources and for the engagement of tribes and tribal enterprises in national energy policy. Regulations were finalized in 2008 for “tribal energy resource agreements” (TERAs) under the 2005 Act, and tribes are beginning to examine how to best implement this opportunity for taking more control over and to regulate reservation resource development, including environmental review pursuant to tribal law rather than NEPA.
Native American interests in resources located outside reservation boundaries. The procedural and substantive rights of tribes outside of reservation boundaries have implications for section members, particularly those whose practice involves federal public lands. A case in which an en banc decision is pending in the 9th Circuit has the potential to change the way federal land management agencies manage projects on federal lands. These issues may ultimately be resolved by the U.S. Supreme Court and will have widespread implications for how federal agencies manage federal lands and resources.

The Committee will sponsor dialogue on these issues through Quick Teleconferences, presentations at ABA meetings, newsletter articles, and other means.

Public Service

Our committee recently sponsored a public service project in conjunction with the 2008 Fall Summit meeting. This was a mock public hearing on global warming and what a tribal government could do to develop a climate action plan. The mock hearing was held at the high school on the Salt River Pima-Maricopa Indian Community. We will be developing a plan for replication of the mock hearing in other settings.

Opportunities for Member Involvement

We have an ambitious agenda this year and we could use your help. There are numerous ways you can become involved. We are always in search of authors for our newsletter and other ABA publications, and organizers of and presenters for Quick Teleconferences. Please join us as we explore the myriad resources issues facing Indian Country in the 21st Century.

Jana L. Walker

Senate Committee on Indian Affairs to Hold Roundtables on Indian Energy and Energy Efficiency

Additional Indian Energy Roundtables will be held on October 13, 2009, October 19, 2009 and the week of October 26, 2009 (date TBA) to discuss the Senators’ Indian Energy and Energy Efficiency Concept Paper. The paper is based on previous congressional testimony and other statements from tribal leaders. In the paper, the committee identified three major barriers to Indian energy development: (1) outdated laws and cumbersome regulations for tribal energy development and programs; (2) lack of tribal access to the transmission grid; and (3) difficulty in obtaining financing and investment for energy projects.

Staff-led roundtables will be held:

October 13, 2009
6:30 pm to 10 pm
NCAI 66th Annual Meeting
Palm Springs Convention Center
277 N Avenida Caballeros
Mesquite Room F
Palm Springs, California

October 19, 2009
2 pm to 6 pm
Native American Student Center
Portland State University
710 SW Jackson St.
Portland, Oregon

Week of October 26, 2009
Date and Time TBA
USET Annual Meeting
Seminole Hard Rock Hotel
1 Seminole Way
Hollywood, Florida

Additional information on the roundtable available at: http://indian.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=4eeb2d1f-4df7-415c-904f-78e4a636a311&Month=9&Year=2009

Copy of the Senate Indian Energy and Energy Efficiency Concept Paper available at: http://www.indian.senate.gov/public/_files/IndianEnergy.pdf

Conference on Key Enforcement and Regulatory Developments in U.S. EPA Region 8

On November 5-6, 2009 at the Hyatt Regency in Denver, Colorado, the ABA Section of Environment, Energy, and Resources is offering a conference focused on policy and enforcement developments in U.S. EPA Region 8, which consists of the states of Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming, and 27 tribal nations. Among the many topics offered at the conference, will be review of Tribal Environmental Policy Developments.

Additional information is available at: http://www.abanet.org/environ/programs/reg8/2009/

Reaffirmation of EPA’s Indian Policy Issued

EPA’s Administrator Jackson has reaffirmed its recognition that the United States has a unique legal relationship with tribal governments based on the Constitution, treaties, statutes, Executive Orders and court decisions. The reaffirmation letter notes that EPA recognizes the right of tribes as sovereign governments to self-determination and acknowledges the federal government’s trust responsibility to tribes. EPA also noted it will work with tribes on a government-to-government basis to protect the land, air and water in Indian Country.

Additional information on EPA’s Indian Policy and a copy of the July 22, 2009 Reaffirmation is available at: http://www.epa.gov/tribalportal/basicinfo/epa-policies.htm

New Mexico State and 10th Circuit Federal Courts Develop Different Tests on What Is “Indian Country”

Excerpted from article by Brian Nichols, Modrall Sperling

In two recent decisions, the state and federal courts in New Mexico have developed different tests to determine whether land is "Indian country." The two tests have led to different results. In the first case, the New Mexico Supreme Court determined that land adjacent to two New Mexico Indian Pueblos was not Indian country. State v. Quintana (2008-NMSC-012, 143 N.M. 535, 178 P.3d 820). By contrast, the Tenth Circuit Court of Appeals, which includes New Mexico, determined that land within the Navajo Church Rock Chapter but six miles from the Chapter House was Indian country. HRI Inc. v. EPA (562 F.3d 1249, No. 07-9506 (10th Cir. 2009)).

The United States Supreme Court set forth a test for determining whether a parcel of land is a "dependent Indian community" in a case originating in Alaska. Alaska v. Native Village of Venetie Tribal Government. Under Venetie, land is a dependent Indian community, and thus Indian country, if it was "set aside by the Federal Government for the use of the Indians as Indian land [and is] under federal superintendence." In 2002, the New Mexico Supreme Court determined it would apply this test without embellishment. That is, New Mexico looks only at the title to the land on which an act occurred or will occur and determines whether this land was set aside for use by Indians and is supervised by the federal government. This test was applied in Quintana. However, the Tenth Circuit Court of Appeals applies the Venetie test after determining a "community of reference." As applied this year in HRI, the Tenth Circuit follows a "three-step procedure" to determine the community of reference. First, it identifies "the geographical definition of the area proposed as a community." Second, it analyzes "the status of the area in question as a community." Third, it considers "that locale or ‘community of reference' within the context of the surrounding area."

The community of reference analysis used by the Tenth Circuit Court is problematic. Employing it, a court may apply the Venetie test to land, and people, miles away from the land at issue. By creating confusion about what governmental authorities have jurisdiction over land, it creates uncertainty, delay and expense. It is an analysis more appropriate to decide whether land should be set aside for use by Native Americans, rather than to determine if Congress has done so.

Additional information and a complete copy of the article available at: http://www.modrall.com/0824091251132712.art

Senate Passes Native American Apology Resolution

As part of a defense spending bill (S.Amdt.2598 to H.R. 3326), the apology, known as the Native American Apology Resolution, was agreed to by the U.S. Senate on October 1, 2009. The resolution extends a formal apology from the United States to tribal governments and Native American people nationwide. It is aimed at making amends for years of “ill-conceived policies” and acts of violence against Native Americans by U.S. citizens. It also asks President Barack Obama to “acknowledge the wrongs of the United States against Indian tribes” in order to encourage healing. The provision has several more steps to undergo before becoming law.

For additional information, see: http://www.indiancountrytoday.com/home/content/63849997.html; http://indian.senate.gov/public/index.cfm?FuseAction=PressReleases.Detail&PressRelease_id=67d20d20-0eae-43b0-9fa5-42e3c3a2fde9&Month=10&Year=2009