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Tribes weigh effects of energy legislation on trust
THURSDAY, MARCH 20, 2003

Citing the Supreme Court's recent ruling that pitted tribal self-determination against the federal trust responsibility, tribal and Indian leaders on Wednesday raised concerns about pro-energy legislation weaving its way through Congress.

The Senate Indian Affairs Committee hearing was called to receive testimony on two nearly identical bills that encourage energy development on Indian lands by eliminating bureaucratic hurdles and promoting tribal sovereignty. With the potential to reap huge economic benefits from untapped oil, gas, coal and other resources, tribal representatives said they supported the goals of the legislation.

But in light of the Supreme Court's holding that the Department of Interior has no fiduciary obligations for mineral leases because existing law puts tribes in control, they questioned the impact of the new bills.

"We want to increase our exercise of our sovereignty," said David Lester, executive director of the Council of Energy Resource Tribes (CERT), which represents more than 40 tribes, "but we don't want a decrease in trust protection."

Compounding those fears was the testimony of Theresa Rosier, counselor to acting assistant secretary Aurene Martin. In response to questions about the ruling and its relation to the legislation, she said the government would not be liable for energy development deals that may not be in the best interest of tribal beneficiaries.

"There is a trust responsibility -- a limited trust responsibility," she told the committee.

By a 6-3 vote, the Supreme Court on March 4 struck down the Navajo Nation's landmark $600 million claim. The tribe alleged that the Department of Interior violated its trust responsibilities by approving a bad deal for a valuable coal deposit.

The proposed bills open tribes up to the same threat because they lessen the Interior's role. "It would permit the government of the United States to wash its hands and say it's none of our business," observed Sen. Daniel Inouye (D-Hawaii), vice chairman of the Indian panel.

Arvin S. Trujillo, executive director of the Navajo Nation Division of Natural Resources, said his tribe's view of the legislation was based entirely on the court's ruling. "The paradigm has switched for us as of March 4," he told lawmakers.

The bills -- S.424, the Tribal Self-Sufficiency Act, and S.522, the Native American Energy Development and Self-Determination Act -- authorize tribes to develop their own energy development regulations in hopes of speeding up resource exploitation. But even though the Secretary of Interior has to approve these regulations, the bills absolve the federal government of any "losses" a tribe or tribal member may incur as a result.

The government's trust responsibility wasn't the only concern raised about the bills. Other tribal representatives presented the committee with a laundry list of issues affecting taxation of oil and gas proceeds, involvement of states and non-Indians in tribal decision making processes, applicability of federal environmental law, Indian preference, renewable energy, rights-of-way and review of tribal financial assets.

Sen. Ben Nighthorse Campbell (R-Colo.), committee chairman, is the primary sponsor of S.522. He said he hoped to address the concerns raised by the tribes although he was surprised that the Southern Ute Tribe of Colorado, known for its energy development prowess, opposed provisions designed to reduce red tape at the Interior.

Sen. Jeff Bingaman (D-N.M.) is the ranking member of the Senate Energy and Natural Resources Committee and the primary sponsor of S.424. He also pledged to work with tribes on any proposed changes.

Campbell said he may combine the bills into one package.

Get the Bills:
S.424 | S. 522

Relevant Documents:
SCIA Witness List (3/19)

Relevant Links:
Council of Energy Resource Tribes - http://www.certredearth.com