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Republicans push controversial Indian energy bill through House

Friday, October 9, 2015

Rep. Don Young (R-Alaska) speaks to the National Congress of American Indians in March 2014. Photo from Rep. Don Young

Republicans pushed a controversial Indian energy bill through the House on Thursday amid opposition from the Obama administration and Democrats.

The vote on H.R.538, the Native American Energy Act, fell along party lines, an unusual outcome for a stand-alone Indian bill. The roll call was 254 to 173, with only 11 Democrats joining 243 Republicans to support the measure.

Despite the lopsided tally, the sponsor of the bill hailed the "bipartisan" nature of the vote. Rep. Don Young (R-Alaska), the chairman of the House Subcommittee Indian, Insular and Alaska Native Affairs, asserted that Indian Country supports his package even though he never held a hearing on it in the 114th Congress.

"H.R.538 has been in the works for several years," Young said during debate on the House floor. "This is not a bill that came out of nowhere. Its provisions are the result of oversight hearings and consultation with Indian tribes and Alaska Native corporations."

A drilling well in Indian Country. Photo from Bureau of Indian Affairs

A similar version did indeed gain traction during the last session but it never passed the House. Young held a hearing on that bill in April 2013 but no tribal leaders testified. The director of the Bureau of Indian Affairs was the only witness and relayed the Obama administration's opposition.

The last time tribes leaders testified directly about an Indian energy bill in the House was more than three years ago at a hearing in February 2012.

The Senate also failed to take action on a different Indian energy bill when Democrats were in control of that chamber during the last session of Congress. Tribal leaders supported the measure at a hearing in May 2014 but its provisions were substantially different from H.R.538.

Despite the disconnect, Republicans defended their handling of Young's bill even as their party fell in disarray due to the surprise decision by Rep. Kevin McCarthy (R-California), the Majority Leader, to drop out of the race for Speaker of the House. The announcement came shortly before lawmakers opened debate on H.R.538 and H.R.702, another controversial energy bill.

Rep. Kevin McCarthy (R-California) will continue to serve as the Majority Leader in the House after dropping out of the race to replace the retiring Rep. John Boehner (R-Ohio) as the Speaker. Photo from Facebook

Democrats tried a series of procedural moves to try and stop both bills. But they failed to turn back the rule for consideration in two separate votes and they were unable to add an amendment aimed at protecting sacred sites in a third vote.

"Yes, barriers to energy development on Indian land are among the most pressing needs, both as an economic driver for tribes and for the energy needs of the United States," Rep. Raul Grijalva (D-Arizona), the top Democrat on the House Natural Resources Committee, said during debate. "But this bill does not address the real energy needs on tribal lands, and while we are wasting time on it, these other, and even more pressing needs, just continue to grow more urgent."

Grijalva and other Democrats questioned many of the same provisions that were raised by the White House on the eve of the vote. The White House Office of Management and Budget issued a rare statement of administration policy against the bill, attacking its treatment of fracking, leasing, appraisals and public comment in Indian Country.

"Overall, H.R. 538 would not ensure diligent development of resources on Indian lands," the White House said on Wednesday.

A fracking well on the Mandan, Hidatsa and Arikara Nation in North Dakota. Photo by Talli Nauman / Native Sun News

A June report from the Government Accountability Office blamed the BIA for hindering economic development in Indian Country. As one example, the Rosebud Sioux Tribe of South Dakota estimated that it lost more than $95 million in revenues from a wind energy project because the agency took 18 months to make a decision on some agreements.

But the GAO's main critiques -- lack of staffing and expertise, along with uncertainty surrounding the tribal energy resource agreements (TERAs) that were created by the Energy Policy Act of 2005 -- are not directly addressed by the Native American Energy Act. The bill does not authorize more funding for the BIA but it does allow tribes to forgo appraisals and imposes time limits on the agency regarding appraisals.

The bill also limits who can participate in the federal review process. Only tribal members and people living in an area affected by a tribal energy development can submit comments.

Under the bill, lawsuits against tribal energy projects can only be filed in the federal court in Washington, D.C., rather than federal courts that might be closer to opponents who live on or near reservations. In the event an opponent wins a case, attorney's fees cannot be paid out of the Claims and Judgment Fund -- meaning it's possible that the money might have to be taken out of the BIA's budget.

Finally, the bill prevents the Bureau of Land Management from imposing hydraulic fracturing standards in Indian Country. A federal judge has put the controversial rule on hold in response to litigation from four states, the energy industry and the Ute Tribe of Utah

There is no companion version of H.R.538 in the Senate. But Republicans in that chamber could take up Young's version.

Sen. John Barrasso (R-Wyoming) has introduced S.209, a bill to streamline federal review of Indian energy projects. It includes provisions that are substantially different from H.R.538 and one of its main goals is to address uncertainty about TERAs. No tribe has submitted an agreement to the BIA for review since the Energy Policy Act became law in 2005.

Barrasso, the chairman of the Senate Indian Affairs Committee, is holding an oversight hearing on October 21 to discuss the GAO report.

Committee Notices:
Full Committee Markup on H.R. 538, H.R. 1541, H.R. 1644, H.R. 1880, H.R. 2130, H.R. 2168, H.R. 2288 (September 9, 2015)
Full Committee Markup on H.R. 538, H.R. 1541, H.R. 1644, H.R. 1880, H.R. 2130, H.R. 2168, H.R. 2288 (September 10, 2015)
Oversight Hearing on “The GAO Report on ‘INDIAN ENERGY DEVELOPMENT: Poor Management by BIA Has Hindered Development on Indian Lands.’” (October 21, 2015)

Government Accountability Office Report:
Indian Energy Development: Poor Management by BIA Has Hindered Energy Development on Indian Lands (June 2015)

Federal Register Notice:
Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands (March 26, 2015)