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Controversy brews as House takes up Native American Energy Act

Tuesday, October 6, 2015

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

The Republican-controlled House is taking up an Indian energy bill this week amid complaints from Democrats who might otherwise support the measure.

Rep. Don Young (R-Alaska) introduced H.R.538, the Native American Energy Act, to promote energy development in Indian Country. The bill streamlines the review of leases, appraisals and other agreements, an issue that was identified as a hindrance to economic development by the non-partisan Government Accountability Office.

"The problem our tribes face is worse than ordinary bureaucratic delays,” Young said at a markup on the bill last month. “It is something worse: neglect. For unelected federal officials, the pay is always the same whether or not an Indian energy lease is approved on a timely basis."

But while Indian bills almost always clear the House Natural Resources Committee with support from both parties, H.R.538 was different. Only one Democrat voted in favor of the Native American Energy Act at the conclusion of the markup on September 10.

Indianz.Com SoundCloud: House Natural Resources Committee Markup on H.R. 538, H.R. 1541, H.R. 1644, H.R. 1880, H.R. 2130, H.R. 2168, H.R. 2288

The revolt came after Republicans voted down an amendment offered by Rep. Raul Grijalva (D-Arizona), the top Democrat on the panel. He sought to include a fix to the U.S. Supreme Court decision in Carcieri v. Salazar in the overall package to ensure that all tribes pursuing energy development can follow the land-into-trust process.

"Six years of vagueness and uncertainty are shameful," Grijalva said of the inability of Congress to address the decision six years after it was issued in February 2009. "There's been too much talk with very little and no action."

Republicans, though, said H.R.538 was the wrong way to address Carcieri. Young was quick to point out that he supports a fix although the House Subcommittee Indian, Insular and Alaska Native Affairs, which he chairs, has yet to consider any of the bipartisan bills to do that.

"I've worked very hard of it but it's hard to get everybody to decide what they want," observed Young, making an oblique reference to the competing agendas that have hindered a fix.

A new wind turbine at the Tamástslikt Cultural Institute, located on the Umatilla Reservation in Oregon. Photo from Facebook

Rep. Rob Bishop (R-Utah), the chairman of the committee, was more direct. He called Grijalva's Carcieri fix a "major policy change" even though the Bureau of Indian Affairs processed land-into-trust applications under the Indian Reorganization Act for 75 years prior to the Supreme Court's decision without major incident.

Unlike Young, Bishop did not commit to supporting a fix despite pressure from tribes and the Obama administration for one.

"It is an issue that is very broad and we will discussing -- at least I want to discuss it -- at a later time, by itself, in a proper approach to it," said Bishop, who characterized Grijalva's seven-line amendment as a "poison pill" to the overall package.

Republicans fell in line with Bishop's pronouncement and Grijalva's amendment was killed by a party-line vote of 22 against and 10 for. All the no votes came from Republicans.

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

H.R.538 itself cleared the committee by a vote of 23 for and 12 against. All of the no votes came from Democrats although Rep. Jim Costa (D-California) joined 22 Republicans in supporting the measure.

The bill will be taken up the House floor on Thursday, according to the majority leader's schedule. The House Rules Committee finalized the rule for consideration this afternoon.

As for the Carcieri fix, three similar although slightly different versions are pending in the House -- H.R.3137, H.R.249 and H.R.407. None have received a hearing.

Three versions are also pending in the Senate -- S.1931, S.1879, and S.732. The Senate Indian Affairs Committee almost took action on S.723 in July but it was withdrawn in light of the more comprehensive S.1879, also known as the Interior Improvement Act.

Tribes and the Obama administration favor a "clean" fix like the one found in S.732. States and local governments have called for more public participation and transparency, issues that are addressed in S.1879.

Additionally, some members of Congress have tried to address gaming issues with a fix even though the overwhelming majority of land-into-trust applications are for non-gaming purposes. Bills to limit new casinos have generally been treated with hostility in Indian Country and almost never advance -- Sen. Dianne Feinstein (D-California) saw widespread opposition to her Tribal Gaming Eligibility Act. In 2006, the House failed to clear the Restricting Indian Gaming to Homelands of Tribes Act (RIGHT) Act due to opposition from tribes, Democrats and Republicans with tribes in their districts.

Grijalva's Carcieri amendment to H.R.538 read as follows:

SEC. 10. REAFFIRMATION OF AUTHORITY.
The Secretary of the Interior may take land into
trust under the Act of June 18, 1934 (25 U.S.C. 461 et
seq.; commonly known as the ‘‘Indian Reorganization
Act’’) for the benefit of any federally recognized Indian
tribe if the primary use of such land will include energy
production.

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)