The Bush administration is urging Congress to
respect tribal sovereignty and stay out of
right-of-way disputes unless they pose a significant
impact on the energy supply.
In a report finalized on Monday, the Interior Department
and the Energy Department said rights-of-way (ROW) negotiations should
be left to tribes and energy companies.
The departments cited sovereignty and self-determination
as the guiding principles for their recommendation.
"A tribe's authority to confer or deny consent to an energy ROW
across tribal land derives from its inherent sovereignty—the right to
govern its people, resources, and lands," the report said.
But if a tribe and an energy company fail to come to an
agreement, Congress should step in only if the dispute
has a "significant regional or national effect on the supply, price,
or reliability of energy resources," the departments said.
Yet they cautioned lawmakers to approach each situation on
a case-by-base basis.
"Negotiations between Indian tribes and energy companies for the grant, expansion, or
renewal of energy rights-of-way across tribal lands have had no demonstrable effect
on energy costs for consumers, energy reliability, or energy supplies to date,"
the report stated.
"Therefore, broad changes to the current federal policy of self-determination and self-governance
for tribes -- or the existing right of consent -- are not warranted at this
The recommendation appears to save Indian Country from any major efforts to
change the rights-of-way process.
It adopts the tribal view that Congressional interest only came
as a result of a single dispute between one energy company
and one tribe.
"They have every right to be involved in discussions and to expect fair
compensation," former Sen.
Ben Nighthorse Campbell (R-Colorado) said at a rights-of-way meeting
in March 2006. "That's a fundamental tenet of the free enterprise system we all enjoy in this room."
The energy industry took a different tack. Citing the dispute
between the Navajo Nation and a gas company -- which has since
been resolved -- lobbyists persuaded
Congress to authorize a study of rights-of-way on Indian lands
in Section 1813 of the Energy Policy Act of 2005.
Initially, energy companies asked Congress to cut tribes out of
the picture entirely. They sought a provision to authorize
the Interior Department to renew rights-of-way agreements
even if the tribe didn't consent.
Such a move is extremely unlikely given the recommendation of
the report to maintain the status quo and consider intervention
solely on a case-by-case basis.
The departments found nothing of substance to most of
the complaints of the energy industry.
"Current methods of valuing energy rights-of-way—through negotiations between
tribes and energy companies—are guided by and in keeping with existing Federal
tribal and energy policies," the report said. "In addition, recent energy legislation
supports greater independence and control by tribes over their tribal land and
The department acknowledged that negotiations have become protracted
and that tribal compensation has risen.
"However, fees paid to Indian tribes for the grant, expansion, or
renewal of energy rights-of-way on tribal lands are a small component of overall
consumer costs for electricity or natural gas," the report said.
Even with these types of concerns,
the report said that tribes stand to lose out more than energy
"If companies choose to build around tribal land where they can, tribes run
the risk of losing economic opportunities and possible interconnects to energy
transmission facilities," the departments noted.
Get the Report:
Report to Congress: Energy Policy Act of 2005, Section 1813 Indian Land Rights-of-Way Study
Letters to Congress
Report to Congress: Energy Policy Act of 2005, Section 1813 Indian Land
Historic Rates of Compensation for Rights-of-Way Crossing Indian Lands,
Get the Bill:Energy
Policy Act of 2005
Energy Policy Act Section 1813 -
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